PART A CONCERNING GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION PERMITS AND OPERATING PERMITS I. APPLICABILITY I.A. The provisions of this Part A shall apply statewide to all sources of air pollutants except as otherwise provided herein.

1. All sources of air pollutants that have previously obtained an emissions permit (prior to July 1, 1992) or a construction permit, and are subject only to the Part B Construction Permit Program, may choose to reapply for a new construction permit pursuant to Part B of this Regulation No. 3 in order to obtain the operational flexibility provided in section IV., of this Part A, or to obtain federally enforceable limitations to limit the source's potential to emit (“synthetic minor”). Sources of air pollutants that are subject only to the Part B Construction Permit Program may voluntarily apply for an Operating Permit pursuant to Part C.
   1. Pursuant to Colorado Revised Statutes section 24-4-103(12.5), materials incorporated by reference are available for public inspection during normal business hours, or copies may be obtained at a reasonable cost from the Technical Secretary of the Air Quality Control Commission (the commission), 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530, or may be examined at any State Publications Depository Library. Materials incorporated by reference are those editions in existence as of the date this regulation is promulgated or revised by the commission and references do not include later amendments to or editions of the incorporated materials.

I.B. Definitions I.B.1. Actual Emissions The actual rate of emission of a pollutant from an emissions unit, determined as follows: Actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit emitted the pollutant during a two-year period that precedes the particular date and is representative of normal unit operation. A different period may be used if it is more representative of normal unit operation. Actual emissions shall be calculated using actual operating hours, production rates, and types of material stored or combusted or actual emission data during the selected time period;

1. I.B.1.a. The division may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit only if actual emissions cannot be determined pursuant to section I.B.1.c., above;
   1. I.B.1.b. For any emissions unit (other than an electric utility steam generating unit specified in section I.B.69.c. that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.
      1. I.B.1.c. For an electric utility steam generating unit (other than a new unit or the replacement of an existing unit) actual emissions of the unit following the physical or operational change shall equal the representative actual annual emissions of the unit, provided the source owner or operator maintains and submits to the division on an annual basis, for a period of five years from the date the unit resumes regular operation, information demonstrating that the physical or operational change did not result in an emissions increase. A longer period, not to exceed ten years, may be required by the division if it determines such a period to be more representative of normal source postchange operations. I.B.2. Administrator The administrator of the U.S. Environmental Protection Agency (U.S. EPA). I.B.3. Adverse Environmental Effect As a term used in the context of regulating hazardous air pollutants any significant and widespread adverse effect, that may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas. I.B.4. Affected States All states whose air quality may be affected by issuance of an operating permit, operating permit modification, or operating permit renewal and that are contiguous to Colorado; and/or all states that are within fifty miles of a permitted source. I.B.5. Affected Unit A unit that is subject to any acid rain emissions reduction requirement or acid rain emissions limitation pursuant to Title IV of the Federal Act or regulations promulgated thereunder, in the Code of Federal Regulations Title 40, Part 72. I.B.6. Air Pollutant Means carbon monoxide, nitrogen oxides, sulfur dioxide, PM , total suspended particulates, ozone, volatile organic compounds, lead, all pollutants regulated under section 111 of the Federal Act (Regulation No. 6), all hazardous air pollutants, and all class I and class II ozone depleting compounds as defined and referenced in section 602 of the Federal Act.
         1. I.B.7. Air Quality Related Value (for purposes of Part B – Construction Permit Program) Any value of an area that may be affected by a change in air quality. Examples include flora, fauna, soil, water, visibility, cultural, and odor. I.B.8. Allowable Emissions The emissions rate calculated using the maximum rated capacity of the source (unless the source is subject to enforceable permit conditions that limit the operating rate or hours of operation, or both) and the most stringent of the following: I.B.8.a. The applicable standards promulgated pursuant to the Federal Act for new source performance or hazardous air pollutants;

            I.B.8.b. The applicable Colorado Emission Control Regulation; or I.B.8.c. The emissions rate specified as an enforceable permit condition. I.B.9. Applicable Requirement Means all of the following as they apply to emissions units in a source subject to operating permit requirements of this regulation (including requirements that have been promulgated or approved by the U.S. EPA through rulemaking at the time of permit issuance but have future effective compliance dates);

            I.B.9.a. Any term or condition of any construction permit issued pursuant to Part B of this Regulation No. 3, or any such term or condition as modified by procedures authorized by the operating permit program pursuant to Parts B and C of this Regulation, or any permit issued under Part C or Part D of the Federal Act, except that state-only permit terms or conditions shall remain enforceable solely pursuant to state law;

            I.B.9.b. Any standard or other requirement provided for in the state implementation plan; I.B.9.c. Any standard or other requirement under section 111 of the Federal Act (New Source Performance Standards), including section 111(d) of the Federal Act (Standards of Performance for existing sources) (Regulation No. 6); I.B.9.d. Any standard or other requirement under section 112 of the Federal Act (hazardous air pollutants, including any requirement concerning accident prevention under section 112(r)(7) of the Federal Act (Regulation No. 8)) but not including the contents of any risk management plan required under section 112(r) of the Federal Act;

            I.B.9.e. Any requirements for monitoring and compliance assurance monitoring methods and procedures to ensure compliance with permit requirements, including periodic monitoring and testing, and compliance certifications, established pursuant to sections 504(b) or 114(a)(3) of the Federal Act; I.B.9.f. Any standards or other requirement under the Code of Federal Regulations Title 40, Part 72 (acid deposition control);

            I.B.9.g. Any standard or other requirement governing solid waste incineration; I.B.9.h. Any standard or other requirement for consumer and commercial products; I.B.9.i. Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the Federal Act, except where the Administrator has determined such requirement need not be contained in an operating permit (Regulation No. 15);

            I.B.9.j. Any national ambient air quality standard or increment or visibility requirement under Part C of Title I of the Federal Act, but only as it would apply to temporary sources permitted pursuant to Part C of this Regulation No. 3. I.B.10. Baseline Area (for purposes of Part B – Construction Permits Only) I.B.10.a. Any intrastate area (and every part thereof) designated as attainment or unclassifiable under sections 107(d)(1)(D) or (E) of the Federal Act in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact equal to or greater than one microgram/cubic meter (µg/m3) (annual average) of the pollutant for which the minor source baseline date is established.

            I.B.10.b. Any baseline area established originally for the total suspended particulate increments shall remain in effect and shall apply for purposes of determining the amount of available PM increments, except that such baseline area shall not remain in effect if the permit authority rescinds the corresponding minor source baseline date in accordance with section I.B.35.c.

            I.B.11. Baseline Concentration The ambient concentration level that exists in the baseline area at the time of the applicable minor source baseline date. A baseline concentration is determined for each pollutant for which a minor source baseline date is established and shall include: I.B.11.a. The actual emissions representative of sources in existence on the applicable minor source baseline date, except as otherwise provided in this definition; and I.B.11.b. The allowable emissions from major stationary sources and major modifications that commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline date (for purposes of Part B – Construction Permit Program).

            I.B.11.c. The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):

            I.B.11.c.(i) Actual emissions from any major stationary source or major modification on which construction commenced on or after the major source baseline date; and I.B.11.c.(ii) Actual emission increases and decreases at any stationary source occurring after the minor source baseline date.

            I.B.12. Best Available Control Technology An emission limitation (including a visible emissions standard) based on the maximum degree of reduction of each air pollutant subject to regulation under the Federal Act that would be emitted from any proposed major stationary source or major modification that the division or commission, on a case-by-case basis, taking into account the duration of the source or modification and energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such air pollutant. In no event shall application of the best available control technology result in emissions of any air pollutants that would exceed emissions allowed by the applicable standards in the Code of Federal Regulations, Title 40, Parts 60 and 61 (Regulations Nos. 6 and 8) as in effect on the effective date of this clause, but not including later amendments, unless such amendments are specifically incorporated by reference in accordance with the provisions of Colorado Revised Statutes section 24-4-103(12.5). Information as to the availability of such standards may be obtained from the Director, Air Pollution Control Division, Colorado Department of Public Health and Environment, 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530. If the division or commission determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, it may instead prescribe a design, equipment, work practices, operational standard or combination thereof, to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation and shall provide for compliance by means that achieve equivalent results.

            I.B.13. Commenced Construction When the owner or operator has obtained all necessary pre-construction approvals or permits required by federal, state, or local air pollution and air quality laws and regulations and has either; (a) begun, or caused to begin, a continuous program of physical onsite construction of the source, or (b) entered into binding agreements or contractual obligation that cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time. The following activities do not require the owner or operator to obtain a permit: 1) planning; 2) site clearing and grading; 3) ordering of equipment and materials; 4) storing of equipment; 5) setting up temporary trailers to house construction management staff and contractor personnel; 6) engineering and design; and 7) geotechnical investigation. In the event that the source does not qualify for issuance of a permit, the owner or operator accepts the financial risk of commencing these activities.

            I.B.14. Commencement of Operation A new source commences operation when it first conducts the activity that it was designed and permitted for (i.e., producing cement or generating electricity). I.B.15. Complete (For purposes of the Prevention of Significant Deterioration program) In reference to an application for a permit, an application that contains all the information necessary for processing the application. Designating an application complete for purposes of permit processing does not preclude the division from requesting or accepting any additional information.

            I.B.15.a. At a minimum, a complete application for a permit to construct a major source or major modification subject to the requirements of Regulation No. 3, section IV.D.3., Part B, shall include:

            I.B.15.a.(i) All monitoring data required pursuant to this regulation and an analysis of ambient air quality in accordance with section IV.D.3.a.(iii), Part B;

            I.B.15.a.(ii) The impact analysis required by section IV.D.3.a.(ii), Part B, a written summary of the data inputs to the model and a topographic presentation of the resultant concentrations of each pollutant modeled for each applicable ambient standard or Prevention of Significant Deterioration increment within the impact area of the source;

            I.B.15.a.(iii) A report of the regulatory status of the model pursuant to section VIII.A.1., Part A;

            I.B.15.a.(iv) A demonstration that the proposed technological system of continuous emission reduction that is to be used will enable such source to comply consistently with the standards of performance that are to apply to such source and that the emission inputs to the model for the impact analysis are equivalent to the emissions allowed by such standards of performance;

            I.B.15.a.(v) A description of the devices or systems that will be installed to monitor the emissions of each pollutant that will be emitted in significant amounts, maintaining such devices or systems, and the schedule and format for reporting the results of such emission monitoring to the division;

            I.B.15.a.(vi) The additional impact analysis required by section IV.D.3.a.(vi), Part B; any demonstration of facts needed to establish a claim by the applicant to qualify for any exemption or exclusion under section IV.D.3.b., Part B;

            I.B.15.a.(vii) A schedule of construction in accordance with section IV.G.4., Part B;

            I.B.15.a.(viii) An additional copy of the application for the federal land manager of each affected Class 1 area, for the U.S. EPA, for the county commissioner, and for public notice (county clerk). Two additional copies shall be submitted for interested public groups.

            I.B.16. Reserved I.B.17. Construction Permit Means the same as an emission permit as required under Part B of this regulation as it existed prior to July 1, 1992 and is the permit required under Colorado Revised Statutes section 25-7-114.2, after July 1, 1992.

            I.B.18. Designated Representative Means a responsible natural person authorized by the owners and operators of an affected source and of all affected units at the source, as evidenced by a certificate of representation submitted in accordance with Subpart B of Code of Federal Regulations, Title 40, Part 72, to represent and legally bind each owner and operator, as a matter of law, in matters pertaining to the acid rain program. Whenever the term responsible official is used, it shall be deemed to refer to the designated representative with regard to all matters under the acid rain program.

            I.B.19. Draft Permit Means a proposed form of a permit that is released to the public for an opportunity for public comment and hearing, and for affected state review prior to the division's final decision on a permit application.

            I.B.20. Emissions Allowable Under the Permit Means: (a) a federally-enforceable term or condition that is determined at the time of permit issuance to be required by an applicable requirement that establishes an emission limit (including a work practice standard); or (b) a federally enforceable emissions cap that the source has assumed in order to avoid an otherwise applicable requirement. I.B.21. Reserved I.B.22. Federal Land Manager (FLM)

            With respect to any lands of the United States, the secretary of the department with authority over such lands.

            I.B.23. Reserved I.B.24. Fugitive Dust For purposes of Regulation No. 3 fugitive dust means soil or other airborne particulate matter (excluding particulates produced directly during combustion) resulting from natural forces or from surface use or disturbance, including, but not limited to, all dust from agriculture, construction, forestry, unpaved roads, mining, exploration, or similar activities in which earth is either moved, stored, transported, or redistributed; except that fugitive dust shall not include any fraction of such soil or other airborne particulate matter that is of a size or substance to adversely affect public health or welfare. I.B.25. Reserved I.B.26. General Permit Means a single permit issued to cover numerous similar sources. I.B.27. Reserved I.B.28. Reserved I.B.29. Reserved I.B.30. Reserved I.B.31. Reserved I.B.32. Innovative Control Technology Any system of air pollution control that has not been adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy, economics, or non-air quality environmental impacts.

            I.B.33. Lowest Achievable Emissions Rate (LAER)

            For any source, the more stringent rate of emissions based on the following: I.B.33.a. The most stringent emission limit contained in any state implementation plan for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limits are not achievable; or I.B.33.b. The most stringent emission limitation that is achieved in practice or can reasonably be expected to occur in practice by such class or category of source, taking into consideration the pollutant that must be controlled. In no event shall a source emit any pollutant in excess of the amount allowable under an applicable new source performance standard (Regulation No. 6).

            I.B.34. Major Source Baseline Date I.B.34.a. In the case of particulate matter and sulfur dioxide, January 6, 1975; and I.B.34.b. In the case of nitrogen dioxide, February 8, 1988. I.B.35. Minor Source Baseline Date I.B.35.a. The earliest date after the trigger date that a major stationary source or a major modification subject to the requirements of Regulation No. 3, Part B, section IV.D.3. or Code of Federal Regulations, Title 40, Part 52.21, submits a complete application under the relevant regulations. The trigger date is: I.B.35.a.(i) In the case of particulate matter and sulfur dioxide, August 7, 1977; and I.B.35.a.(ii) In the case of nitrogen dioxide, February 8, 1988. I.B.35.b. The baseline date is established for each pollutant for which increments or other equivalent measures have been established if:

            I.B.35.b.(i) The area in which the proposed source or modification would construct is designated as attainment or unclassifiable under sections 107(d)(1)(D) or (E) of the Federal Act for the pollutant on the date of its complete application under Regulation No. 3, Part B, section IV.D.3.; and I.B.35.b.(ii) In the case of a major stationary source the pollutant would be emitted in significant amounts, or, in the case of a major modification, there would be a significant net emissions increase of the pollutant. I.B.35.c. Any minor source baseline date established originally for the Total Suspended Particulates increments shall remain in effect and shall apply for purposes of determining the amount of available PM increments, except that the division may rescind any such minor source baseline date where it can be shown, to the satisfaction of the division, that the emissions increase from the major stationary source, or the net emissions increase from the major modification responsible for triggering that date, did not result in a significant amount of PM emissions. I.B.36. Modification Definitions I.B.36.a. Administrative Permit Amendment.

            A permit revision that:

            I.B.36.a.(i) Corrects typographical errors;

            I.B.36.a.(ii) Identifies a change in the name, address, or phone number of any person identified in the permit, or provides a similar minor administrative change at the source;

            I.B.36.a.(iii) Requires more frequent monitoring or reporting by the permittee; I.B.36.a.(iv) Allows for a change in ownership or operational control of a source where the division determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the division; An administrative permit amendment for purposes of the acid rain portion of a permit shall be governed by regulations promulgated under Title IV of the Federal Act, found at Code of Federal Regulations Title 40, Part 72.

            I.B.36.b. Major Modification (applicable to Prevention of Significant Deterioration and Nonattainment New Source Review program)

            Means any physical change or change in the method of operation of, or addition to a major stationary source that would result in a significant net emissions increase of any air pollutant subject to regulation under the Federal Act or the State Act (taking into account all emissions decreases and increases at the source that would accompany the modification).

            I.B.36.b.(i) Any net emissions increase that is significant for volatile organic compounds shall be considered significant for ozone.

            In the Denver Metropolitan PM nonattainment area, any net emission increase that is significant for sulfur dioxide or nitrogen oxides shall be considered significant for PM .

            I.B.36.b.(ii) A physical change or change in the method of operation shall not include routine maintenance, repair, and replacement.

            I.B.36.b.(iii) A physical change or change in the method of operation, unless previously limited by any enforceable or federally enforceable permit condition that was established after January 6, 1975, for sources in attainment or unclassifiable areas and December 21, 1976, for sources in nonattainment areas, shall not include:

            I.B.36.b.(iii)(A) Use of an alternative fuel or raw material by reason of an order in effect under sections 2(a) and (b) of the Federal Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation), a prohibition under the Power Plant and Industrial Fuel Use Act of 1978 (or any superseding legislation) or by reason of a natural gas curtailment plan in effect pursuant to the Federal Power Act;

            I.B.36.b.(iii)(B) Use of an alternative fuel by reason of an order or rule under section 125 of the Federal Act;

            I.B.36.b.(iii)(C) Use of an alternative fuel or raw material that, prior to January 6, 1975 for a source in an attainment or unclassifiable area, and prior to December 21, 1976 for a source in a nonattainment area, the stationary source was capable of accommodating, or that the source is approved to use under any permit issued under Code of Federal Regulations Title 40, Subparts 1, or 52.21, or under Regulation No. 3.

            I.B.36.b.(iii)(D) An increase in the production rate, unless such change would be prohibited under a federally enforceable permit condition;

            I.B.36.b.(iii)(E) An increase in the hours of operation, unless such increase would be prohibited under a federally enforceable permit condition; or I.B.36.b.(iii)(F) Any change in ownership of a stationary source. I.B.36.b.(iii)(G) The addition, replacement or use of a pollution control project at an existing electric utility steam generating unit, unless the division determines that such addition, replacement, or use renders the unit less environmentally beneficial, except: I.B.36.b.(iii)(G)(1) When the division has reason to believe that the pollution control project would result in a significant net increase in representative actual annual emissions of any criteria pollutant over levels used for that source in the most recent air quality impact analysis in the area conducted for the purpose of Title I of the Federal Act, if any, and I.B.36.b.(iii)(G)(2) The division determines that the increase will cause or contribute to a violation of any National Ambient Air Quality Standard or Prevention of Significant Deterioration increment, or visibility limitation.

            I.B.36.b.(iii)(H) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

            I.B.36.b.(iii)(H)(1) The Colorado State Implementation Plan, and I.B.36.b.(iii)(H)(2) Other requirements necessary to attain and maintain the National Ambient Air Quality Standards during the project and after it is terminated.

            I.B.36.b.(iii)(I) The installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis. I.B.36.b.(iii)(J) The reactivation of a very clean coal-fired electric utility steam generating unit.

            I.B.36.b.(iv) Emissions caused by indirect sources of pollution, emissions from internal combustion engines on any vehicle, and emissions resulting from temporary construction or exploration activities shall be excluded in determining whether a major modification will occur.

            Emissions from on-going construction are not considered to be temporary emissions, and are included in determining whether a major modification will occur.

            I.B.36.b.(v) Fugitive emissions from the listed sources in Code of Federal Regulations Title 40, Part 70, Section 70.2 (Definition of “major source”), including sources regulated under section 111 or 112 of the Federal Act (Regulations No. 6 and 8), shall, to the extent quantifiable, be considered in calculating the potential to emit of the modification for sources subject to an operating permit. For purposes of Prevention of Significant Deterioration and Nonattainment New Source Review, fugitive emissions from the listed sources in section I.B.59.e.(i) and any other stationary source category that, as of August 7, 1980 was regulated under 111 or 112 of the Federal Act (Regulations Nos. 6 and 8) shall, to the extent quantifiable, be considered in calculating the potential to emit of the modification.

            I.B.36.c. Minor Permit Modification Any revision to an operating permit issued by the division that meets the criteria of sections X., or XI., of Part C.

            I.B.36.d. Modification (for purposes of Part B only)

            Any physical change in, or change in the method of operation of, a stationary source that does not meet the definition of major modification, and that increases the emission rate of any pollutant for which a federal or state emission standard has been promulgated or that results in the emission of any such pollutant previously not emitted. The following exceptions apply: I.B.36.d.(i) Routine maintenance, repair, and replacement shall not be considered a physical change;

            I.B.36.d.(ii) Unless previously limited by enforceable permit terms and conditions, the following shall not be considered to be a change in the method of operation:

            I.B.36.d.(ii)(A) An increase in the production rate if such increase does not exceed the design capacity of the source and does not lead to emissions in excess of the emission standards;

            I.B.36.d.(ii)(B) An increase in the hours of operation that does not lead to emissions in excess of the emission standards.

            I.B.36.d.(ii)(C) Use of an alternative fuel or raw material by reason of an order in effect under sections 2(a) and (b) of the Federal Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation), a prohibition under the Federal Power Plan and Industrial Fuel Act of 1978 (or any superseding legislation) or by reason of a natural gas curtailment plan in effect pursuant to the Federal Power Act;

            I.B.36.d.(ii)(D) Use of an alternative fuel by reason of an order or rule under section 125 of the Federal Act; or I.B.36.d.(ii)(E) Change in ownership of the source.

            I.B.36.d.(iii) Emissions resulting from construction and exploration shall be excluded in determining whether a modification will occur. Emissions from on-going construction, and emissions from natural gas flaring are not considered to be temporary emissions, and are included in determining whether a modification will occur.

            I.B.36.d.(iv) This definition shall not be used as a definition of major modification or minor permit modification— these are distinct and separate definitions. I.B.36.d.(v) Any physical change or change in the method of operation at a source with an operating permit issued pursuant to Part C of this Regulation No. 3, that does not constitute a major modification as defined in Part A, section I.B.36.b., of Regulation No. 3 and that does not trigger new source performance standards or hazardous air pollutant requirements under the Federal Act is not considered to be a modification; except that any such change shall trigger the provisions of Part C, section X.A., and Part B, section IV.D.1.a.-h., Part C, sections XII.A., or XII.B., as appropriate.

            I.B.36.e. Permit Modification (operating permits only): means any revision to an operating permit issued by the division that cannot be accomplished under the administrative permit amendment procedures set forth in section III., of this Part A, or the minor permit modification procedures set forth in sections X., or XI., of Part C. A permit modification for purposes of the acid rain portion of a permit shall be governed by regulations promulgated under Title IV of the Federal Act, found at Code of Federal Regulations, Title 40, Part 72.

            I.B.36.f. Permit Revision: means any permit modification, minor permit modification, or administrative permit amendment. No permit revision shall be required for increases in emissions that are authorized by allowances acquired pursuant to the acid rain program provided that such increases do not require a permit revision under any other applicable requirement.

            I.B.36.g. Reconstruction: will be presumed to have taken place where the fixed capital cost of the new components exceed fifty percent of the fixed capital cost of an entirely new stationary source. Any final decision as to whether reconstruction has occurred shall be made in accordance with the provisions in Regulation No.

         2. 6. In determining lowest achievable emission rate for a reconstructed stationary source, the provisions of Regulation No. 6 shall be taken into account in assessing whether a new source performance standard is applicable to such stationary source.

            I.B.36.h. Significant Permit Modification: means all operating permit modifications that do not qualify as minor permit modifications or as administrative permit amendments. At a minimum, a significant permit modification shall include: I.B.36.h.(i) Any change that causes a significant increase in the rate of emissions as described by any permit term or condition;

            I.B.36.h.(ii) Any change that is considered a modification under Title I of the Federal Act;

            I.B.36.h.(iii) Any change that requires or changes a case-by-case determination of an emission limitation or other standard;

            I.B.36.h.(iv) Any change that requires or changes a source-specific determination for temporary sources of ambient impacts; I.B.36.h.(v) Any change that requires or changes a visibility or increment analysis;

            I.B.36.h.(vi) Every significant change in existing monitoring permit terms or conditions; and I.B.36.h.(vii) Every relaxation of reporting or record keeping permit terms or conditions.

            I.B.36.h.(viii) Every change that seeks to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject. Such terms and conditions include:

            I.B.36.h.(viii)(A) A federally enforceable emissions cap assumed to avoid classification as a modification under any provision of Title I of the Federal Act; and I.B.36.h.(viii)(B) An alternative emissions limit approved pursuant to regulations promulgated under section 112(i)(5) of the Federal Act All significant permit modifications shall be processed using the procedures set forth in Part C of Regulation No. 3 for combined ConstructionPermit issuance. Such source may choose to obtain a construction permit pursuant to Part B and shall subsequently meet the operating permit requirements of Part C.

            I.B.37. Net Emissions Increase (This definition applies where specifically referenced in other provision of Regulation No. 3, and may also be used for purposes of section V. of Part A - “Certification and Trading of Emission Reduction Credits”). I.B.37.a. The amount by which the sum of the following exceeds zero: I.B.37.a.(i) Any increase in the actual emissions from a particular physical change or change in the method of operation at a stationary source; and I.B.37.a.(ii) Any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable. I.B.37.b. Contemporaneous - an increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between: I.B.37.b.(i) The date five years before construction on the particular change commences; and I.B.37.b.(ii) The date that the increase from the particular change occurs. I.B.37.c. An increase or decrease in actual emissions is creditable only if: I.B.37.c.(i) The division has not relied on it in issuing a permit for the source under Regulation No. 3, or the U.S. EPA has not relied on it in issuing a permit under Part C of the Federal Act, that permit is in effect when the increase in actual emissions from the particular change occurs; and I.B.37.c.(ii) In order to establish a baseline emissions rate, the owner or operator submits an Air Pollutant Emission Notice to the division prior to the increase or decrease indicating actual emissions according to the definition in Regulation No. 3, Part A, section I.B.1., and the owner or operator submits a revised Air Pollutant Emission Notice to the division within one year after making the increase or decrease, or I.B.37.c.(iii) The owner or operator provides credible, demonstrable evidence to the division of what actual emissions were before making the increase or decrease and what they were after making the increase or decrease. I.B.37.d. An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available. With respect to particulate matter, only PM emissions can be used to evaluate the net emissions increase for PM . I.B.37.e. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

            I.B.37.f. A decrease in actual emissions is creditable only to the extent that the division has not relied on it in issuing any permit under regulations approved pursuant to Title 40 of the Code of Federal Regulations, Part 51, Subpart I or has not relied on it in demonstrating attainment or reasonable further progress:

            I.B.37.f.(i) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions; I.B.37.f.(ii) It is federally enforceable at and after the time that actual construction on the particular change begins; and I.B.37.f.(iii) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change. I.B.37.g. An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed one hundred and eighty days. I.B.37.h. The organic compounds referenced in the common provisions definition of negligibly reactive volatile organic compounds are neither counted as reactive volatile organic compounds in determining significant ozone increases nor creditable against an increase in emissions of any volatile organic compound.

            I.B.37.i. Creditable Decreases for Fuel Switching. Generally, for credit to be given for the emissions reduction in potential to emit or actual emissions resulting from a physical change or change in method of operation of a major stationary source occurring on or after the effective date of this rule, an Air Pollutant Emission Notice reporting such reduction must be filed within one year after the reduction occurs unless an extension is requested due to uncertainty as to the permanence of such reduction. At the time credit for any reduction is requested, such reduction must be enforceable. Such reductions must be enforceable through permit conditions or source specific state implementation plan revisions.

I.B.38. Reserved I.B.39. Non-criteria Reportable Pollutants The list of pollutants set forth in Appendix B and those ozone depleting compounds listed in section 602 of the Federal Act.

I.B.40. Nonroad Engine I.B.40.a. Except as discussed in section I.B.40.b., of this definition, a nonroad engine is an internal combustion engine:

1. I.B.40.a.(i) In or on a piece of equipment that is self-propelled or serves a dual purpose by both propelling itself and performing another function (such as garden tractors, off-highway mobile cranes and bulldozers); or I.B.40.a.(ii) In or on a piece of equipment that is intended to be propelled while performing its function (such as lawnmowers and string trimmers); or I.B.40.a.(iii) That, by itself or in or on a piece of equipment is portable or transportable, meaning designed to be and capable of being carried or moved from one location to another. Indicia of transportability include, but are not limited to wheels, skids, carrying handles, dolly, trailer or platform.
   1. I.B.40.b. An internal combustion engine is not a nonroad engine if: I.B.40.b.(i) The engine is used to propel a motor vehicle or a vehicle used solely for competition, or is subject to standards promulgated under section 202 of the Federal Act; or I.B.40.b.(ii) The engine is regulated by a federal New Source Performance Standard promulgated under section 111 of the Federal Act; or I.B.40.b.(iii) The engine otherwise included in section I.B.40.a.(iii) of this definition remains or will remain at a location for more than twelve consecutive months or a shorter period of time for an engine located as a seasonal source. A location is any single site at a building, structure, facility, or installation. Any engine (or engines) that replaces an engine at a location and that is intended to perform the same or similar function as the engine replaced will be included in calculating the consecutive time period. An engine located at a seasonal source is an engine that remains at a seasonal source during the full annual operating period of the seasonal source. A seasonal source is a stationary source that remains in a single location on a permanent basis (i.e., at least two years) and that operates at a single location approximately three months (or more) each year. This section does not apply to an engine after the engine is removed from the location. I.B.40.c. Nonroad engines not co-located at an existing major source An operator of a nonroad engine as defined in section I.B.40.a.(iii), above, with a manufacturer's site-rated horsepower of 1,200 or greater, or an aggregation of such nonroad engines each with a manufacturer's site-rated horsepower of 1,200 or greater, that operate more than 4,380 hours per year at the same location are subject to the following state-only requirements:
      1. I.B.40.c.(i) Submit an air pollutant emission notice and pay the appropriate fees pursuant to section VI., Part A of this regulation;
         1. I.B.40.c.(ii) Submit an application for a site-specific, temporary, nonroad engine permit on forms supplied by the division if the estimated actual emissions reported on the Air Pollutant Emission Notice, as required by section I.B.40.c.(i), are equal to or exceed 100 tons per year or more of nitrogen oxides, 100 tons per year or more of carbon monoxide, or 40 tons per year or more of sulfur dioxide. After receipt and review of a complete application, the division shall issue a state-only nonroad engine permit containing such terms and conditions as are necessary to protect the ambient air quality standards.

            I.B.40.c.(iii) The operator of a nonroad engine that is exempt on the basis of hours of operation or the annual emissions thresholds described above, must maintain sufficient records to verify that the engine or engines are exempt from the state- only reporting and permit requirements. Such records shall be made available for division review upon request.

            I.B.40.d. Nonroad engines co-located at an existing major source of nitrogen oxides and sulfur dioxide An operator of a nonroad engine or aggregation of engines each with a manufacturer's site-rated horsepower of 1,200 or greater, and are nonroad engines under section I.B.40.a.(iii) of this definition, are subject to the following state-only requirements: I.B.40.d.(i) Submit an air pollutant emission notice and pay the fees required by Part A, section VI., of this regulation;

            I.B.40.d.(ii) Submit an application for a site-specific, temporary, state-only nonroad engine permit on forms supplied by the division if the estimated actual emissions reported on the air pollutant emission notice, as required by section I.B.40.d.(i), are equal to or exceed 40 tons per year or more of nitrogen oxides, 100 tons per year or more of carbon monoxide, or 40 tons per year or more of sulfur dioxide. After receipt and review of a complete application the division shall issue a temporary state-only nonroad engine permit containing such terms and conditions as are necessary to protect the ambient air quality standards. I.B.40.d.(iii) The operator of a nonroad engine that is 1,200 horsepower or greater, but is exempt on the basis of the annual emissions thresholds described above, must maintain sufficient records to verify that the engine or engines are exempt from the state-only reporting and permit requirements. Such records shall be made available for division review upon request.

I.B.41. Operating Permit Unless the context suggests otherwise, means any permit or group of permits covering an operating permit source that is issued, renewed, amended or revised pursuant to Regulation No. 3.

I.B.42. Operating Permit Source Means any source subject to the permitting requirements of Part C of this regulation. I.B.43. Reserved I.B.44. Permit Shield (Part C - Operating Permits Only) Means that where a source operates in compliance with all operating permit terms and conditions, the source shall be deemed in compliance with the state and Federal Acts where the permit includes all applicable requirements of such acts, specifically states that other identified provisions are not applicable, and states that the permit shield applies. The permit shield does not apply to terms and conditions that become applicable to the source subsequent to permit issuance. The permit shield shall not alter or affect the provisions of Colorado Revised Statutes sections 25-7-112 or 25-7-113, section 303 of the Federal Act, the applicable requirements of the acid rain program, consistent with section 408(a) of the Federal Act, or the ability of the Administrator to obtain information from a source pursuant to section 114 of the Federal Act; nor shall the permit shield affect 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. I.B.45. Potential to Emit The maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is state enforceable and federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.

I.B.46. Reserved I.B.47. Reserved I.B.48. Proposed Operating Permit Means the version of an operating permit that the division proposes to issue and forwards to the Administrator for review in compliance with the Code of Federal Regulations Title 40, Part 70, Section 70.8.

I.B.49. Reserved I.B.50. Reserved I.B.51. Regulated Air Pollutant Means nitrogen oxides or any volatile organic compounds, except as listed in section I.B.37.h.; any pollutant for which a national or state ambient air quality standard has been promulgated; any pollutant that is subject to any standard promulgated under section 111 of the Federal Act (Regulation No. 6); any class I or II substance subject to a standard promulgated under or established by Title VI of the Federal Act; any pollutant subject to a standard promulgated under section 112 or other requirements established under section 112 of the Federal Act, including sections 112(g), (j), and (r) of the Federal Act; and any pollutant subject to a standard promulgated pursuant to Colorado Revised Statutes section 25-7-109.3(5)(a), (state-only hazardous air pollutants listed in section 25-7-109.3(5)(a) are subject to state enforcement only and do not trigger enforcement by the Administrator or by citizens under section 304 of the Federal Act.)

1. Once a source becomes subject to the operating permit requirements, regulated pollutants must be addressed in the permit application and in the permit. I.B.52. Renewal of an Operating Permit Means the process by which a permit is reissued at the end of its term. I.B.53. Reserved I.B.54. Responsible Official Means one of the following:
   1. I.B.54.a. For a corporation: a president, secretary, treasurer, or vice president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:
      1. I.B.54.a.(i) The facilities employ more than two hundred and fifty persons or have gross annual sales or expenditures exceeding twenty-five million dollars (in second quarter 1980 dollars); or I.B.54.a.(ii) The delegation of authority to such representative is approved in advance by the division;
         1. I.B.54.b. For a partnership or sole proprietorship: a general partner or the proprietor, respectively; I.B.54.c. For a municipality, state, federal, or other public agency; either a principal executive officer, or ranking elected official. For the purposes of this section, a principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency; or I.B.54.d. For affected sources:

            I.B.54.d.(i) The designated representative in so far as actions, standards, requirements, or prohibitions under Title IV of the Federal Act or the regulations, found at Code of Federal Regulations Title 40, Part 72, promulgated thereunder are concerned; and I.B.54.d.(ii) The designated representative under Title IV of the Federal Act or the Code of Federal Regulations Title 40, Part 72 for any other purposes under the Code of Federal Regulations Title 40, Part 70.

I.B.55. Schedule of compliance Means a schedule of required measures, including an enforceable sequence of actions or operations, leading to compliance with an applicable state implementation plan, emission standard, emission limitation, emission prohibition, or emission control regulation. I.B.56. Secondary Emissions Emissions that would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same geographic areas as the stationary source or modification that causes the secondary emissions. Secondary emissions include emissions from any offsite support facility that would not otherwise be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions that come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel. I.B.57. Section 502(b)(10) Changes Means changes that contravene an express permit term. Such changes do not violate applicable requirements or contravene federally enforceable permit terms and conditions that are monitoring (including test methods), record keeping, reporting, or compliance certification requirements. I.B.58. Significant I.B.58.a. Unless the context otherwise requires, for purposes of the Colorado Prevention of Significant Deterioration program and for purposes of section IV.D.3., of Part B (nonattainment requirements) of Regulation No. 3, a significant rate of emissions in tons per year is defined as a value that would equal or exceed any of the following: Carbon monoxide: 100 tons per year Nitrogen Oxides: 40 (nitric oxide + nitrogen dioxide) tons per year Sulfur dioxide: 40 tons per year Particulate matter: 25 tons per year particulate matter emissions or, 15 tons per year of PM emissions PM - Precursors in the Denver Metropolitan PM nonattainment area: 40 tons per year 10 10 for each individual precursor (nitrogen oxides or sulfur oxides) Ozone: 40 tons per year of volatile organic compounds Lead: 0.6 tons per year Fluorides: 3 tons per year Sulfuric acid mist: 7 tons per year Hydrogen sulfide: 10 tons per year Total reduced sulfur (including hydrogen sulfide: 10 tons per year) Reduced sulfur compounds (including hydrogen sulfide: 10 tons per year) Municipal Waste Combustor Organics (measured as total tetra- through octachlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 x 10-6 megagrams per year (3.5 x 10-6 tons per year)

1. Municipal Waste Combustor Metals (measured as particulate matter): 14 megagrams per year (15 tons per year)
   1. Municipal Waste Combustor Acid Gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams per year (40 tons per year)
      1. Municipal Solid Waste Landfill Gases (measured as nonmethane organic compounds): 45 megagrams per year (50 tons per year)
         1. I.B.58.b. Significant means, in reference to a net emissions increase or the potential of a source to emit a pollutant subject to regulation under the state Act or the Federal Act that this definition does not list, any emissions rate, except that this definition shall not apply to hazardous air pollutants listed in or pursuant to section 112 of the Federal Act. I.B.58.c. Notwithstanding the significant emission rates above, significant means any emissions rate or any net emissions increase associated with a major stationary source or major modification, that would construct within ten kilometers of a Class I area, and have an impact on such area equal to or greater than one microgram/cubic meter (µg/m3) (twenty- four hour average).

I.B.59. Source Definitions Affected Source: (acid deposition program) means a source of air pollutants that includes one or more fossil fuel fired combustion devices subject to emission reduction requirements or limitations under Title IV of the Federal Act, Code of Federal Regulations Title 40, Part 72, or under the state Act.

1. Existing Source: An air pollutant source that has been constructed, is in operation, or has received an initial approval of a construction permit prior to the effective date of applicable requirements.
   1. Indirect Source: A facility, building, structure, or installation, or any combination thereof, excluding dwellings, which can reasonably be expected to cause or induce substantial mobile source activity that results in emissions of air pollutants that might reasonably be expected to interfere with the attainment and maintenance of National Ambient Air Quality Standards. Major Source: (for purposes of Part C - operating permits) means any stationary source or group of stationary sources that have the same two digit standard industrial code, are located on one or more contiguous or adjacent properties, and are under common control of the same person (or persons under common control) that:
      1. I.B.59.a. Directly emits, or has the potential to emit considering enforceable controls, in the aggregate, ten tons per year or more of any hazardous air pollutant or twenty-five tons per year or more of any combination of hazardous air pollutants, or such lesser quantity of hazardous air pollutants as may be established pursuant to the Federal Act. Emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources, and in the case of any oil or gas exploration or production well (with its associated equipment), such emissions shall not be aggregated for any purpose under this provision. Fugitive emissions shall be considered in determining whether a stationary source of hazardous air pollutants is a major source.
         1. I.B.59.b. Directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant. Fugitive emissions shall be considered in determining whether a source is a major stationary source for purposes of this section I.B.59.b., with regard to those source categories that are listed in section I.B.59.e.(i) of that definition, Part A, Regulation No. 3, and with regard to all other stationary source categories regulated by a standard promulgated as of August 7, 1980 under section 111 or 112 of the Federal Act, but only with respect to those air pollutants that have been regulated for that category. I.B.59.c. Meets any of the definitions of major stationary source set forth in section I.B.59., of this Regulation No. 3.

            Major Stationary Source: (for purposes of Part B, Construction Permits) I.B.59.d. For the purpose of determining whether a source in a nonattainment area is subject to the requirements of Regulation 3, Part B, section IV.D.2., and whether a source in an attainment area affecting a nonattainment area is subject to the requirements of Part B, section IV.D.3.d., major stationary source means any stationary source of air pollutants which emits, or has the potential to emit, one hundred tons per year or more of any pollutant regulated under the Federal Act for which the area is nonattainment. In the Denver Metropolitan PM nonattainment area, sulfur dioxide and nitrogen oxides shall be treated as PM precursors, and any source that is major for these precursors is subject to the nonattainment new source review provisions. Additionally, a source causing or contributing to a violation of a national ambient air quality standard for any pollutant regulated under section 110 of the Federal Act shall be considered major when it has the potential to emit one hundred tons per year or more of that pollutant. The source will be considered to cause or contribute to a violation when the source exceeds the significance levels in the table under section IV.D.3.d.(ii), Part B. Such source is subject to the requirements of section IV.D.3.

            I.B.59.e. For the purpose of determining whether a source in an attainment or unclassifiable area is subject to the requirements of Regulation No. 3, Part B, section IV.D.3., (except section IV.D.3.d.) and sections VIII., IX., and X., major stationary source means: I.B.59.e.(i) Any of the following stationary sources of air pollutants which emit, or have the potential to emit, one hundred tons per year or more of any pollutant subject to regulation under the Federal Act: fossil fuel-fired steam electric plants of more than two hundred and fifty million British thermal units per hour heat input, coal cleaning plants (with thermal dryers), kraft pulp mills, portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than two hundred and fifty tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production facilities, chemical process plants, fossil fuel boilers (or combination thereof) totaling more than two hundred and fifty million British thermal units per hour heat input, petroleum storage and transfer facilities with a total storage capacity exceeding three hundred thousand barrels, taconite ore processing facilities, glass fiber processing plants, and charcoal production plants. I.B.59.e.(ii) Any other stationary source which emits, or has the potential to emit two hundred and fifty tons per year or more of any air pollutant regulated under the Federal Act.

            I.B.59.f. Major stationary source includes any physical change that would occur at a stationary source not otherwise qualifying as a major stationary source under this definition if the change would constitute a major stationary source by itself. I.B.59.g. A major source that is major for volatile organic compounds shall be considered major for ozone, except that none of the emissions of the volatile organic compounds listed in section I.B.37.h., shall be included in the determination of major for ozone. I.B.59.h. Emissions caused by indirect air pollution sources, emissions from internal combustion engines on any vehicle, and emissions resulting from temporary activities, such as construction or exploration, shall be excluded in determining whether a source is a major stationary source. Emissions from on-going construction are not considered to be temporary emissions and are included in determining whether a major modification will occur.

            I.B.59.i. Fugitive emissions from any source category listed in section I.B.59.e.(i) of this definition, and any other stationary source category, which as of August 7, 1980 was regulated under section 111 or, 112 of the Federal Act (Regulations Nos. 6 and 8), shall be included in determining whether a source is a major stationary source. I.B.59.j. A major source in the Denver Metropolitan PM nonattainment area that is major for sulfur dioxide or nitrogen oxides shall be considered major for PM . Mobile Source: Motor vehicles and other sources of air pollution that emit pollutants while moving and that commonly do not remain at one site (one or more contiguous or adjacent properties owned or operated by the same person or by persons under common control), but does not include portable sources.

            New Source: A stationary air pollution source, other than an existing source; or any source that resumes operation after being inactive for more than one year after having been shut down for the purpose of eliminating emissions that violated any applicable emission control regulation or regulation for the control of hazardous air pollutants. Portable Source: A source such as, but not limited to, asphalt batch plants and aggregate crushers that commonly and by usual practice are moved from one site to another. A source will not be considered portable if it remains on one site for more than two years. Stationary Source: Any building, structure, facility, equipment, or installation, or any combination thereof belonging to the same industrial grouping, that emits or may emit any air pollutant subject to regulation under the Federal Act, that is located on one or more contiguous or adjacent properties and that is owned or operated by the same person or by persons under common control. Those emissions resulting directly from an internal combustion engine for transportation purposes or from a nonroad engine as defined in section I.B.40., of this regulation shall not be considered a stationary source. Building, structures, facilities, equipment, and installations shall be considered to belong to the same industrial grouping if they belong to the same major groups (i.e., have the same two-digit codes) as described in the Standard Industrial Classification Manual, 1987, but not later amendments. See National Technical Information Service, Order No. PB 87-100012. The manual is available for examination at the office of the Director of the Air Pollution Control Division, Department of Public Health and Environment, 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530.

            Temporary Source: Not more than two years in duration unless the division determines that a longer time period is appropriate.

I.B.60. Reserved I.B.61. Reserved I.B.62. Reserved I.B.63. State-only Condition Means any standard, term or condition that is not required by Part C (Prevention of Significant Deterioration), Part D (nonattainment), Title V (operating permit program), Title III (hazardous air pollutants) or section 111 (New Source Performance Standards) of the Federal Act, is not required to be federally enforceable to participate in the early reductions program, is not required to create a federally enforceable emissions limitation in order to create a synthetic minor source, or is otherwise more stringent than a requirement under the Federal Act. I.B.64. Reserved I.B.65. Reserved I.B.66. Reserved I.B.67. Volatile Organic Compound (see Common Provisions Regulation) I.B.68. Reserved I.B.69. WEPCO (Wisconsin Electric Power Company) Definitions I.B.69.a. Clean Coal Technology Any technology, including technologies applied at the pre-combustion, combustion, or post-combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam which was not in widespread use as of November 15, 1990.

1. I.B.69.b. Clean Coal Technology Demonstration Project A project using funds appropriated under the heading “Department of Energy-Clean Coal Technology,” up to a total amount of $2.5 billion for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the U.S. EPA. The federal contribution for a qualifying project shall be at least twenty percent of the total cost of the demonstration project.
   1. I.B.69.c. Electric Utility Steam Generating Unit Any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electrical output capacity and more than twenty-five megawatts electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam- electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility. I.B.69.d. Pollution Control Project Any activity or project undertaken at an existing electric utility steam generating unit for purposes of reducing emissions from such unit. Such activities or projects are limited to: I.B.69.d.(i) The installation of conventional or innovative pollution control technology, including, but not limited to advanced flue gas desulfurization, sorbent injection for sulfur dioxide and nitrogen oxides controls and electrostatic precipitators; I.B.69.d.(ii) An activity or project to accommodate switching to a fuel which is less polluting that the fuel in use prior to the activity or project, including, but not limited to natural gas or coal re-burning, or the co-firing of natural gas and other fuels for the purpose of controlling emissions;
      1. I.B.69.d.(iii) A permanent clean coal technology demonstration project conducted under Title II, section 101(d) of the Further Continuing Appropriations Act of 1985 (Section 5903(d) of Title 42 of the United States Code, or subsequent appropriations, up to a total amount of $2.5 billion for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the U.S. EPA; or I.B.69.d.(iv) A permanent clean coal technology demonstration project that constitutes a repowering project.
         1. I.B.69.e. Reactivation of Very Clean Coal-fired Electric Utility Steam Generating Unit Any physical change or change in the method of operation associated with the commencement of commercial operations by a coal-fired utility unit after a period of discontinued operation where the unit:

            I.B.69.e.(i) Has not been in operation for the two year period prior to the enactment of the Clean Air Act Amendments of 1990, and the emissions from such unit continue to be carried in the permitting authority's emissions inventory at the time of the enactment;

            I.B.69.e.(ii) Was equipped prior to shut-down with a continuous system of emissions control that achieves a removal efficiency for sulfur dioxide of no less than eighty- five percent and a removal efficiency for particulates of no less than ninety-eight percent;

            I.B.69.e.(iii) Is equipped with low-nitrogen oxide burners prior to the time of commencement of operations following reactivation; and I.B.69.e.(iv) Is otherwise in compliance with the requirements of the Federal Act. I.B.69.f. Repowering I.B.69.f.(i) Replacement of an existing coal-fired boiler with one of the following clean coal technologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magneto hydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the Administrator, in consultation with the Secretary of Energy, a derivative of one or more of these technologies, and any other technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of November 15, 1990.

            I.B.69.f.(ii) Repowering shall also include any oil and/or gas-fired unit that has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Department of Energy.

            I.B.69.g. Representative Actual Annual Emissions The average rate, in tons per year, at which the source is projected to emit a pollutant for the two year period after a physical change or change in the method of operation of a unit, (or a different consecutive two year period within ten years after that change, where the division determines that such period is more representative of normal source operations), considering the effect any such change will have on increasing or decreasing the hourly emissions rate and on projected capacity utilization. In projecting future emissions, the division shall:

            I.B.69.g.(i) Consider all relevant information, including but not limited to, historical operational data, the company's own representations, filings with the state or federal regulatory authorities, and compliance plans under Title IV of the Federal Act; and I.B.69.g.(ii) Exclude, in calculating any increase in emissions that results from the particular physical change or change in the method of operation at an electric utility steam generating unit, that portion of the unit's emissions following the change that could have been accommodated during the representative baseline period and is attributable to an increase in projected capacity utilization at the unit that is unrelated to the particular change, including any increased utilization due to the rate of electricity demand growth for the utility system as a whole. I.B.69.h. Temporary Clean Coal Technology Demonstration Project I.B.69.h.(i) A clean coal technology demonstration project that is operated for a period of five years or less, and which complies with the state implementation plan and other requirements necessary to attain and maintain the National Ambient Air Quality Standards during the project and after it is terminated. I.B.70. Wet Screening Operations A screening operation at a nonmetallic mineral processing plant that removes unwanted material or that separates marketable fines from the product by a washing process that is designed and operated at all times such that water is an integral part of the process and the product is saturated with water. Screens that use spray bars for the purposes of dust control are not included in this definition.

II. AIR POLLUTANT EMISSION NOTICE (APEN) REQUIREMENTS II.A. Air Pollutant Emission Notices for New, Modified, and Existing Sources Except as specifically exempted in section II.D., no person shall allow emission of air pollutants from, or construction, modification or alteration of, any facility, process, activity which constitutes a stationary source, except residential structures, from which air pollutants are, or are to be, emitted unless and until an Air Pollutant Emission Notice and the associated Air Pollutant Emission Notice fee has been filed with the division with respect to such emission. Each such notice shall specify the location at which the proposed emission will occur, the name and address of the persons operating and owning such facility, the nature of such facility, process or activity, an estimate of the quantity and composition of the expected emission and other information as required in the current Air Pollutant Emission Notice form. II.B. General II.B.1. Emission Estimate The Air Pollutant Emission Notice shall include an estimate of the actual emissions, including emission controls. The emissions estimate shall be based upon actual test data or, in the absence of such data upon estimations acceptable to the division. The following alternative estimate methods, in order of descending acceptability, are acceptable to the division:

1. II.B.1.a. Mass balance calculations or a published, verifiable emission factor, whichever is best applied to the source; or II.B.1.b. Other engineering calculations.
   1. Stack testing or emission monitoring will not be required solely to meet the Air Pollutant Emission Notice reporting requirements.
      1. An owner or operator shall provide a justification to the division for not using any methods that are higher on the list than the method the owner or operator proposes to use. If none of the above methods are available or applicable to the source, an appropriate method will be determined on a case-by-case basis by the division, taking into account the provisions of section II.C.2., of Regulation No. 3, Part A.
         1. The division shall make available to all air pollution control authority offices appropriate forms on which the information required by this section shall be submitted. Applications for Construction Permits must include an Air Pollutant Emission Notice.

            II.B.2. Air Pollutant Emission Notice Term An Air Pollutant Emission Notice is valid for a period of five years. The five-year period recommences when a revised Air Pollutant Emission Notice is received by the division. II.B.3. Source Definition For the purposes of Air Pollutant Emission Notice reporting, a source will be considered to be an individual emission point, or group of points pursuant to section II.B.4., below. II.B.3.a. Criteria Pollutants For criteria pollutants, Air Pollutant Emission Notices are required for: each individual emission point in a nonattainment area with uncontrolled actual emissions of one ton per year or more of any individual criteria pollutant (pollutants are not summed) for which the area is nonattainment; each individual emission point in an attainment area with uncontrolled actual emissions of two tons per year or more of any individual criteria pollutant (pollutants are not summed); each individual emission point with uncontrolled actual emissions of lead greater than one hundred pounds per year, regardless of where the source is located.

            II.B.3.b. Non-criteria Reportable Pollutants For non-criteria reportable pollutants, Air Pollutant Emission Notices are required for each individual emission point with uncontrolled actual emissions that exceed the de minimis levels as determined following the procedures set forth in Appendix A.

            II.B.4. Source Grouping Grouping of multiple emission points on a single Air Pollutant Emission Notice shall be allowed as often as possible, provided the overall goals of receiving accurate and verifiable emissions information are not compromised. The following guidelines shall be used to delineate occasions when grouping can be allowed. These are intended to be used as guidelines only, and specific questions regarding grouping should be directed to the division.

            Multiple pieces of equipment or processes from a single facility may be grouped or associated together and reported on one single Air Pollutant Emission Notice provided the individual sources of emissions meet the following guidelines: II.B.4.a. All of the aggregated sources have identical source classification codes and emission factors for criteria pollutants;

            II.B.4.b. Each of the aggregated sources share a similar location within the facility; II.B.4.c. Similar sources regulated under the New Source Performance Standards (Regulation No. 6) and non-New Source Performance Standard sources should not be grouped;

            II.B.4.d. None of the individual sources are required to monitor emissions through the use of continuous emission monitors;

            II.B.4.e. Each of the individual emission points has fuel usage, production, and a consumption level which are indistinguishable from the other points which have been grouped on the Air Pollutant Emission Notice;

            II.B.4.f. None of the individual sources grouped on the Air Pollutant Emission Notice has previously been issued its own separate emissions permit. The division maintains its authority to require individual separate Air Pollutant Emission Notices for any process or activity.

            The division may allow a source to deviate from this emission point grouping criteria upon a showing that an alternative is reasonable and will not compromise the overall goals of receiving accurate and verifiable emissions information. II.B.5. Uncontrolled Actual Emissions Uncontrolled actual emissions, for the purposes of Air Pollutant Emission Notice reporting and construction permit requirements, means the annual emission rate corresponding to the annual process rate listed on the Air Pollutant Emission Notice form, without consideration of any emission control equipment or procedures. The division may allow a source to forego calculating or estimating its uncontrolled actual emissions of hazardous air pollutants upon a showing by the source and a determination by the division that the creation of such data is unreasonably costly, technically impractical or not reasonably related to information necessary for making regulatory decisions with respect to that source. The division's final determination may be appealed to the commission by the source.

            II.B.6. Air Pollutant Emission Notices and revised Air Pollutant Emission Notices shall be based on calendar years (January through December).

            II.B.7. The emissions noted on the current Air Pollutant Emission Notice on file with the division shall be used for emission fee calculations as described in section II.I.4., of Regulation, Part A.

            II.B.8. Reserved.

            II.B.9. Criteria pollutants are: carbon monoxide, nitrogen oxides, sulfur dioxide, PM , total suspended particulate matter, ozone, volatile organic compounds, lead, fluorides, sulfuric acid mist, hydrogen sulfide, total reduced sulfur, reduced sulfur compounds, municipal waste combustor organics, municipal waste combustor metals, and municipal waste combustor acid gases.

            II.B.10. Reserved.

II.C. Revised Air Pollutant Emission Notices II.C.1. A revised Air Pollutant Emission Notice shall be filed: II.C.1.a. Annually whenever a significant change in emissions occurs, as defined below in section II.C.2.

1. II.C.1.b. Whenever there is a change in the owner or operator of any facility, process, or activity; or II.C.1.c. Whenever new control equipment is installed, or whenever a different type of control equipment replaces an existing type of control equipment (revised Air Pollutant Emission Notices are not required for routine maintenance, repair, or replacement of control equipment); or II.C.1.d. Whenever a permit limitation must be modified; or II.C.1.e. Before the Air Pollutant Emission Notice expires. II.C.1.f. A revised Air Pollutant Emission Notice is not required whenever the location of a portable facility, process, or activity is changed, however, the owner or operator of such source must file a relocation notice. Such notice shall be received by the division at least ten days prior to the change in location. Alternatively, the owner or operator of a portable source may request written approval from the division to report multiple relocations. Relocation forms are available at the division offices. II.C.1.g. A revised Air Pollutant Emission Notice is not required for emergency or backup generators that are ancillary to the main units at electric utility facilities, and that have a permit under Part C or D of Title I, or Title V of the Federal Act. II.C.1.h. A revised Air Pollutant Emission Notice is not required for emergency or backup generators for electric power generating facilities that are not ancillary to a main unit at an electric utility facility, and that have a permit containing limits on the physical or operational capacity of the source to emit a pollutant such that the source is not considered to be a major stationary source as defined in section I.B.59., of Regulation No. 3, Part A. If an owner or operator of such a source chooses to file a revised Air Pollutant Emission Notice, the Air Pollutant Emission Notice shall list the average of the actual emissions for the preceding three years.
   1. II.C.2. Significant change, for the purposes of this section means: II.C.2.a. For any non-criteria reportable pollutant if the emissions increase by fifty percent or five tons per year, whichever is less, above the level reported on the last Air Pollutant Emission Notice submitted to the division.
      1. II.C.2.b. For criteria pollutants:
         1. II.C.2.b.(i) For sources emitting less than one hundred tons per year, a change in actual emissions of five tons per year or more, above the level reported on the last Air Pollutant Emission Notice submitted to the division, of any such air pollutant; or II.C.2.b.(ii) For volatile organic compound sources in ozone nonattainment areas emitting less than one hundred tons of volatile organic compound per year, a change in actual emissions of one ton per year or more or five percent, whichever is greater, above the level reported on the last Air Pollutant Emission Notice submitted to the division; or II.C.2.b.(iii) For sources emitting one hundred tons per year or more, a change in actual emissions of five percent or fifty tons per year or more, whichever is less, above the level reported on the last Air Pollutant Emission Notice submitted to the division, of any such air pollutant; or II.C.2.b.(iv) A change in actual emissions, above the level reported on the last Air Pollutant Emission Notice submitted to the division, of fifty pounds of lead.

            II.C.3. Timeframe for Revised Air Pollutant Emission Notice submittals II.C.3.a. Revised Air Pollutant Emission Notices shall be submitted no later than within thirty days before the five-year term expires.

            II.C.3.b. Owners or operators of sources that are required to obtain a permit revision must file a revised Air Pollutant Emission Notice along with a request for permit revision. A revised permit must be obtained before the change at the source occurs.

            II.C.3.c. Sources submitting revised Air Pollutant Emission Notices to inform the division of a change in actual emission rates must do so by April 30 of the following year (e.g., a change in emissions in calendar year 1993 must be reported by April 30, 1994).

            II.C.3.d. Air Pollutant Emission Notices for changes in control equipment must be submitted before the change occurs.

II.D. Exemptions from Air Pollutant Emission Notice Requirements II.D.1. Notwithstanding the exemptions contained in Section II.D.1., Air Pollutant Emission Notices must be filed for all emission units specifically identified in the applicability section of any subpart of Part A of Regulation No. 6 (New Source Performance Standards) and/or Regulation No. 8 (Hazardous Air Pollutants), Parts A,C,D, and E. However, Air Pollutant Emission Notices need not be filed for wet screening operations subject to Subpart OOO of the New Source Performance Standards if the exemption in section II.D.1.cccc. is applicable.

1. Stationary sources having emission units that are exempt from the requirement to file an Air Pollutant Emission Notice must nevertheless comply with all requirements that are otherwise applicable specifically to the exempted emission units, including, but not limited to: Title V, Prevention of Significant Deterioration, nonattainment New Source Review, opacity limitations, odor limitations, particulate matter limitations and volatile organic compounds controls.
   1. An applicant may not omit any information regarding APEN exempt emission units in any permit application if such information is needed to determine the applicability of- Title V (Part C of this Regulation No. 3), Prevention of Significant Deterioration (Section IV.D.3., Part B of this Regulation No. 3), or nonattainment New Source Review(Section IV.D.2.a., Part B of this Regulation No. 3).
      1. The following sources are exempt from the requirement to file Air Pollutant Emission Notices because by themselves, or cumulatively as a category, they are deemed to have a negligible impact on air quality.
         1. II.D.1.a. Individual emission points in nonattainment areas having uncontrolled actual emissions of any criteria pollutant of less than one ton per year, and individual emission points in attainment areas having uncontrolled actual emissions of any criteria pollutant of less than two tons per year, and each individual emission point with uncontrolled actual emissions of lead less than one hundred pounds per year, regardless of where the source is located.

            II.D.1.b. Individual emission points of non-criteria reportable pollutants having uncontrolled actual emissions less than the de minimis levels as determined following the procedures set forth in Appendix A.

            II.D.1.c. Air conditioning or ventilating systems not designed to remove air pollutants generated by or released from other processes or equipment. II.D.1.d. Fireplaces used for recreational purposes, inside or outside. II.D.1.e. Fires and equipment used for noncommercial cooking of food for human consumption, or cooking of food for human consumption at commercial food service establishments, except for char broilers and wood fired equipment (but not including campfires) in PM nonattainment areas. Charbroiled shall mean a cooking device in a commercial food service establishment, either gas fired or using charcoal or other fuel, upon which grease drips down upon an open flame, charcoal or embers.

            II.D.1.f. Safety flares used to indicate danger to the public. II.D.1.g. Agricultural operations such as farming, cultivating, harvesting, seasonal crop drying, grain handling operations that are below New Source Performance Standards de minimis levels (including milling and grain elevator operations), and animal feeding operations that are not housed commercial swine feeding facilities as defined in Regulation No. 2, Part B. This exemption does not apply to an agricultural operation that: (1) is a major stationary source (Regulation No. 3 Part A, section I.B.59); (2) meets or exceeds the storage capacity thresholds of a federal New Source Performance Standard (Regulation No. 6, Part A); or (3) participates in the early reduction program of the Federal Act, section 112. Ancillary operations such as fueling stations located at farms or ranches are not exempt from Air Pollutant Emission Notice and permit requirements unless otherwise below the de minimis emission levels contained in this regulation, and are not exempt from other applicable regulation promulgated by the commission. II.D.1.h. Emissions from, or construction, or alteration of residential structures, including all buildings or other structures used primarily as a place of residence, and including home heating devices.

            II.D.1.i. Laboratories and research amp; development facilities: II.D.1.i.(i) Noncommercial (in-house) experimental and analytical laboratory equipment that is bench scale in nature including quality control/quality assurance laboratories, process support laboratories, environmental laboratories supporting a manufacturing or industrial facility, and research and development laboratories.

            II.D.1.i.(ii) Research and development activities that are of a small pilot scale and that process less than ten thousand pounds of test material per year; II.D.1.i.(iii) Small pilot scale research and development projects less than six months in duration with controlled actual emissions less than five hundred pounds of any criteria pollutant or ten pounds of any non-criteria reportable pollutant.

            II.D.1.j. Disturbance of surface areas for purposes of land development, that do not exceed twenty-five contiguous acres and that do not exceed six months in duration. (This does not include mining operations or disturbance of contaminated soil).

            II.D.1.k. Each individual piece of fuel burning equipment, other than smokehouse generators and internal combustion engines, that uses gaseous fuel, and that has a design rate less than or equal to five million British thermal units per hour. (See definition of fuel burning equipment, Common Provisions Regulation). II.D.1.l. Internal combustion engines powering portable drilling rigs. II.D.1.m. Petroleum industry flares, not associated with refineries, combusting natural gas containing no hydrogen sulfide except in trace (less than five hundred parts per million weight) amounts, approved by the Colorado Oil and Gas Conservation Commission and having uncontrolled emissions of any pollutant of less than five tons per year.

            II.D.1.n. Chemical storage tanks or containers that hold less than five hundred gallons, and that have an annual average daily throughput of less than twenty-five gallons.

            II.D.1.o. Unpaved public and private roadways, except for haul roads located within a stationary source site boundary.

            II.D.1.p. Sanding of streets and roads to abate traffic hazards caused by ice and snow. II.D.1.q. Open burning activities, except that all reporting and permitting requirements that apply to such operations must be followed (see Regulation No. 9).+ II.D.1.r. Brazing, soldering, or welding operations, except those that use lead based compounds. All welding that occurs strictly for maintenance purposes is exempt. II.D.1.s. Street and parking lot striping.

            II.D.1.t. Battery recharging areas.

            II.D.1.u. Aerosol can usage.

            II.D.1.v. Sawing operations, that are ancillary to facility operations, and are not part of the production process.

            II.D.1.w. The process of demolition and re-bricking of furnaces and kilns. This does not include subsequent operation of such furnaces or kilns. II.D.1.x. Road and lot paving operations at commercial and industrial facilities, except that asphalt and cement batch plants require Air Pollutant Emission Notices and permits, unless exempt under some other section.

            II.D.1.y. Adhesive use that is not related to production. II.D.1.z. Fire training activities.

            II.D.1.aa. Caulking operations that are not part of a production process. II.D.1.bb. Landscaping and site housekeeping devices equal to or less than ten horsepower in size (lawnmowers, trimmers, snow blowers, etc.). II.D.1.cc. Fugitive emissions from landscaping activities (e.g., weeding, sweeping). II.D.1.dd. Landscaping use of pesticides, fumigants, and herbicides. II.D.1.ee. Crude oil truck loading equipment at exploration and production sites where the loading rate does not exceed 10,000 gallons of crude oil per day averaged on an annual basis. Condensate truck loading equipment at exploration and production sites that splash fill less than 6750 barrels of condensate per year or that submerge fill less than 16308 barrels of condensate per year. II.D.1.ff. Emergency events such as accidental fires.

            II.D.1.gg. Smoking rooms and areas.

            II.D.1.hh. Plastic pipe welding.

            II.D.1.ii. Vacuum cleaning systems used exclusively for industrial, commercial, or residential housekeeping purposes.

            II.D.1.jj. Beauty salons.

            II.D.1.kk. Operations involving acetylene, butane, propane and other flame cutting torches.

            II.D.1.ll. Pharmacies.

            II.D.1.mm. Chemical storage areas where chemicals are stored in closed containers, and where total storage capacity does not exceed five thousand gallons. This exemption applies solely to storage of such chemicals. This exemption does not apply to transfer of chemicals from, to, or between such containers. II.D.1.nn. Architectural painting, roof coating material and associated surface preparation (except for sandblasting and except for volatile organic compound emissions, associated with surface preparation, above Air Pollutant Emission Notice de minimis levels) for maintenance purposes at industrial or commercial facilities. II.D.1.oo. Emissions that are not criteria or non-criteria reportable pollutants (See section I.B.39., Part A) (These emissions include methane, ethane, and carbon dioxide). II.D.1.pp. Janitorial activities and products.

            II.D.1.qq. Grounds keeping activities and products.

            II.D.1.rr. Sources of odorous emissions that do not utilize emission control equipment for control of odorous emissions. This exemption applies to the odor emissions only. All other emissions are subject to other exemptions set forth in this regulation. This exemption does not exempt any source from the requirements of Regulation No. 2.

            II.D.1.ss. Truck and car wash units.

            II.D.1.tt. Office emissions, including cleaning, copying, and restrooms. II.D.1.uu. Oil production wastewater (produced water tanks), containing less than one percent by volume crude oil on an annual average, except for commercial facilities that accept oil production wastewater for processing. II.D.1.vv. Electrically operated curing ovens, drying ovens and similar activities, articles, equipment, or appurtenances. This exemption applies to the ovens only, and not to the items being dried in the ovens.

            II.D.1.ww. Equipment used exclusively for portable steam cleaning. II.D.1.xx. Blast cleaning equipment using a suspension of abrasive in water and any exhaust system or collector serving them exclusively.

            II.D.1.yy. Commercial laundries (except dry cleaners) that do not burn liquid or solid fuel. II.D.1.zz. Storage of butane, propane, or liquefied petroleum gas in a vessel with a capacity of less than sixty thousand gallons, provided the requirements of Regulation No. 7, section IV. are met, where applicable. II.D.1.aaa. Storage tanks of capacity less than forty thousand gallons of lubricating oils or used lubricating oils.

            II.D.1.bbb. Venting of compressed natural gas, butane or propane gas cylinders, with a capacity of one gallon or less.

            II.D.1.ccc. Fuel storage and dispensing equipment in ozone attainment areas operated solely for company owned vehicles where the daily fuel throughput is no more than four hundred gallons per day that is calculated as an annual average. Sources in the Denver-Metropolitan ozone attainment-maintenance area must utilize Stage 1 vapor recovery on all tanks greater than 550 gallons capacity, as required by Regulation No. 7, in order to take this exemption. II.D.1.ddd. Crude oil storage tanks with a capacity of 40,000 gallons or less. II.D.1.eee. Indirect sources are exempt until a permit regulation specific to indirect sources is promulgated by the commission.

            II.D.1.fff. Storage tanks meeting all of the following criteria: II.D.1.fff.(i) Annual throughput is less than four hundred thousand gallons; and II.D.1.fff.(ii) The liquid stored is one of the following: II.D.1.fff.(ii)(A) Diesel fuels 1-D, 2-D, or 4-6;

            II.D.1.fff.(ii)(B) Fuel oils #1 through #6;

            II.D.1.fff.(ii)(C) Gas turbine fuels 1-GT through 4-GT; II.D.1.fff.(ii)(D) An oil/water mixture with a vapor pressure equal to or lower than that of diesel fuel (Reid Vapor Pressure of 0.025 pounds per square inch absolute).

            II.D.1.ggg. Each individual piece of fuel burning equipment that uses gaseous fuel, and that has a design rate less than or equal to ten million British thermal units per hour, and that is used solely for heating buildings for personal comfort. II.D.1.hhh. Natural gas vehicle fleet fueling facilities. II.D.1.iii. Electric motors driving equipment at non-commercial machining shops. II.D.1.jjj. Recreational swimming pools.

            II.D.1.kkk. Forklifts.

            II.D.1.lll. Exploration and production sites (well site and associated equipment) shall provide written notice to the Colorado Oil and Gas Conservation Commission of proposed drilling locations prior to commencement of such operations. Air Pollutant Emission Notices are not required until after exploration and/or production drilling, workovers, completions, and testing are finished. If production will result in reportable emissions, the owner or operator shall file an Air Pollutant Emission Notice with the division within thirty days after the report of first production is filed with the appropriate state or federal agency but no later than 90 days following the first day of production.

            II.D.1.mmm. Handling equipment and associated activities for glass that is destined for recycling.

            II.D.1.nnn. Fugitive emissions of hazardous air pollutants that are natural constituents of native soils and rock (not added or concentrated by chemical or mechanical processes) from under ground mines or surface mines unless such source is a major source of hazardous air pollutants under Part C of the Regulation No. 3. II.D.1.ooo. The use of pesticides, fumigants, and herbicides when used in accordance with requirements established under the federal Insecticide, Fungicide and Rodenticide Act as established by the U.S. EPA (United States Code Title 7, Section 136 et seq.).

            II.D.1.ppp. Ventilation of emissions from mobile sources operating within a tunnel, garage, or building.

            II.D.1.qqq. Non-asbestos demolition.

            II.D.1.rrr. Sandblast equipment when the blast media is recycled and the blasted material is collected, including small sandblast glove booths.

            II.D.1.sss. Stationary Internal Combustion Engines that meet the following specifications: II.D.1.sss.(i) Less than or equal to 175 horsepower that operate less than 1,450 hours per year; or II.D.1.sss.(ii) Greater than 175 horsepower and less than or equal to 300 horsepower that operate less than 850 hours per year; or II.D.1.sss.(iii) Greater than 300 horsepower and less than or equal to 750 horsepower that operate less than 340 hours per year.

            II.D.1.ttt. Emergency power generators that:

            II.D.1.ttt.(i) Have a rated horsepower of less than 260; or II.D.1.ttt.(ii) Operate no more than 250 hours per year and have a rated horsepower of less than 737; or II.D.1.ttt.(iii) Operate no more than 100 hours per year and have a rated horsepower of less than 1,840.

            II.D.1.uuu. Surface water storage impoundment of not potable water and storm water evaporation ponds.

            II.D.1.vvv. Non-potable water pipeline vents.

            II.D.1.www. Steam vents and safety release valves.

            II.D.1.xxx. Deaerator/vacuum pump exhausts.

            II.D.1.yyy. Seal and lubricating oil systems for steam turbine electric generators. II.D.1.zzz. Venting of natural gas lines for safety purposes. II.D.1.aaaa. Chemical Storage Tanks II.D.1.aaaa.(i) Sulfuric acid storage tanks not to exceed ten thousand five hundred gallons capacity.

            II.D.1.aaaa.(ii) Sodium hydroxide storage tanks.

            II.D.1.bbbb. Containers, reservoirs, or tanks used exclusively for dipping operations that contain no organic solvents for coating objects with oils, waxes, greases, or natural or synthetic resins.

            II.D.1.cccc. Wet screening operations notwithstanding the applicability of the New Source Performance Standards included in the Code of Federal Regulations, Title 40, Part 60, Subpart OOO.

            II.D.1.dddd. Nonroad engines as defined in Part A, section I.B.40. of this regulation except certain nonroad engines subject to state-only air pollutant emission notice and permitting requirements pursuant to Part A, section I.B.40.c. II.D.1.eeee. Any condensate storage tank with a production rate of 730 barrels per year or less or condensate storage tanks that are manifolded together with a production rate of 730 barrels per year or less that are owned and/or operated by the same person, and are located at exploration and production sites. II.D.1.eeee.(i) If an Air Pollutant Emission Notice has not previously been filed for an existing condensate storage tank or condensate storage tanks that are manifolded together, an Air Pollutant Emission Notice Must be filed on or before March 31, 2003, except as provided below.

            II.D.1.eeee.(ii) A single owner or operator of more than 50 existing condensate storage tanks for which Air Pollutant Emission Notices have not previously been filed shall file at least one-third of the required APENs by January 31, 2003, at least two-thirds by February 28, 2003, and the remainder by March 31, 2003.

            II.D.1.eeee.(iii) The need to file APENs for condensate storage tanks at operations located downstream of natural gas exploration and production facilities, but not including natural gas processing plants, shall be evaluated in light of a throughput limit to be established by the division based upon data acceptable to the division that the estimated emissions from such tanks (or manifolded tanks) at the specified throughput is equal to or less than the appropriate APEN de minimis level set forth in Part A, section II.D.1.a. of this regulation No. 3. The throughput level may be established for either a particular company's operations, and, if supported, for natural gas gathering operations generally. In the latter case, the division would establish the accepted APEN throughput level by policy.

            II.D.2. An Air Pollutant Emission Notice must be filed for all incinerators. II.D.3. Air Pollutant Emission Notices are required for emergency and backup generators that are ancillary to the main units at electric utility facilities however, these units may be included on the same Air Pollutant Emission Notice as the main unit. II.D.4. Reserved.

            II.D.5. Any person may request the division to examine a particular source category or activity for exemption from Air Pollutant Emission Notice or permit requirements. II.D.5.a. Such requests shall be made separately from the permit application review procedure.

            II.D.5.b. Such requests shall include documentation indicating that emissions from the source category or activity have a negligible impact on air quality and public health in Colorado, based on, but not limited to, the following criteria. II.D.5.b.(i) Emissions from the source or activity are below the Air Pollutant Emission Notice or permit emission de minimis levels set forth in this Regulation No. 3; or II.D.5.b.(ii) The existing division emission inventory is sufficient to indicate that the source or activity has a negligible impact; or II.D.5.b.(iii) For permit exemptions, criteria (i) and/or (ii) are met, and the source or activity has no applicable requirement that applies to it, and the division finds that monitoring or record keeping are not necessary. II.D.5.b.(iv) Exemptions shall not be granted for any source or activity that is subject to any federal applicable requirement. The division shall determine on a case-by-case basis if sources or activities subject to state only regulations may be granted an exemption.

            II.D.5.c. None of the activities submitted as exemption requests to the division may be taken by a source until the commission has duly adopted the exemptions as revisions to this Regulation No. 3 and the U.S. EPA has approved the exemption requests.

            II.D.5.d. The division will annually submit the list of requested exemptions to the commission for adoption and the U.S. EPA for approval, along with the division's preliminary determination of the appropriateness of each request for exemption. II.D.5.e. In order to be made a part of the division's annual submission in a particular year, a source must submit its request(s) for exemption along with all the required documentation supporting such request, no later than August 1 of that year.

            II.D.6. Commercial (for-hire) laboratories whose primary responsibilities are to perform qualitative or quantitative analysis on environmental, clinical, geological, forensic, or process samples may estimate emissions for purposes of Air Pollutant Emission Notice reporting based upon a mass balance calculation utilizing inventory and purchase records of solvents and reagents. Such laboratories may, at their discretion, group emission points if such grouping meets the grouping criteria outlined in this regulation. All inert samples are exempt from Air Pollutant Emission Notice reporting. Emissions from samples subjected to analysis provided to such laboratories for analysis and testing, and by-products that result from sample testing, are exempt from Air Pollutant Emission Notice reporting, provided such samples subjected to analysis are less than five gallons for liquids, or five pounds for solids.

            II.D.7. Research and development activities that do not fall within the small scale exemption in section II.D.1.i., may estimate emissions for purposes of Air Pollutant Emission Notice reporting based upon either a mass balance calculation utilizing inventory and purchase records, or best engineering judgment. Such facilities may file an Air Pollutant Emission Notice or revised Air Pollutant Emission Notice on an annual basis by April 30 of the year following the project's conclusion for each project that is not exempt under section II.D.1.i., irrespective of section II.C., herein (revised Air Pollutant Emission Notice requirements), such Air Pollutant Emission Notices shall be filed on a per project basis and shall be based on controlled actual emissions.

III. ADMINISTRATIVE PERMIT AMENDMENT PROCEDURES III.A. An application for an administrative permit amendment shall be prepared on forms supplied by the division.

III.B. Within sixty calendar days after receipt of a complete application for an administrative permit amendment the division shall issue its final determination on such application in accordance with the following:

1. III.B.1. Deny the application for an administrative permit amendment; or III.B.2. Grant the application and incorporate any such changes into the permit providing such permit revisions are made pursuant to this Part A, section III. III.C. A source may implement the changes addressed in the application for an administrative amendment immediately upon submittal of request, subject to the final determination of the division.

III.D. As required under the Federal Act, the division shall transmit to the Administrator a copy of each revised permit made pursuant to an administrative permit amendment under this provision. III.E. No public notice or review by affected states shall be necessary for permit revisions made pursuant to administrative amendment procedures.

III.F. Administrative permit amendments for purposes of the acid rain portion of a permit shall be governed by regulations promulgated under Title IV of the Federal Act, found at Code of Federal Regulations Title 40, Part 72.

IV. OPERATIONAL FLEXIBILITY IV.A. Alternative operating scenarios No permit revision is required for reasonably anticipated operating scenarios identified by the source in its application for a permit and approved by the division, provided the permit contains terms and conditions that:

1. IV.A.1. Require the source, contemporaneously with making a change from one operating scenario to another, to record in a log at the permitted facility a record of the scenario under which it is operating;
   1. IV.A.2. Ensure that the terms and conditions of each such alternative scenario meet all applicable requirements of the state and Federal Act.
      1. IV.A.3. Extend the permit shield to all operating permit terms and conditions under each such operating scenario.

IV.B. Trading based on the permit If allowed by the applicable state implementation plan, no permit revision shall be required under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes in emissions that are provided for in the permit. The permit applicant must request such provisions to be included in its permit, and if approved by the division, the permit shall contain terms and conditions that: IV.B.1. For operating permits, include all terms required under section V.C. of Part C; IV.B.2. Ensure that changes resulting from such increases and decreases in emissions meet all applicable requirements under the state and Federal Acts; IV.B.3. Extend the permit shield to all operating permit terms and conditions that allow such increases and decreases in emissions.

IV.C. Emissions trading under permit caps No permit revision shall be required where an applicant requests, and the division approves such request, for a permit containing terms and conditions allowing for the trading of emissions increases and decreases in the permitted facility. Procedures for such changes are: IV.C.1. For operating permits, the permit shall contain terms and conditions required pursuant to section V.C. of Part C;

1. IV.C.2. The permit applicant shall include in its application proposed replicable procedures and permit terms that ensure the emissions trades are quantifiable; IV.C.3. Any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades shall not be included in this provision allowing emissions trading without permit revision; IV.C.4. The source shall comply with all other applicable requirements. IV.C.5. The source shall provide a minimum of seven days written notification in advance of the proposed changes to the division and to the Administrator. The notice must be received by the division no later than seven days in advance of the proposed changes. The source and the division shall attach each such notice to their copy of the relevant permit. The notice shall contain:
   1. IV.C.5.a. When the change will occur;
      1. IV.C.5.b. A description of 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;
         1. IV.C.5.c. The permit shield shall extend to all operating permit terms and conditions that allow such increases and decreases in emissions.

            IV.C.6. A source shall be allowed to make such change proposed in its notice on the day following the last day of the advance notice described in section IV.C.5., above, if the division has not responded nor objected to such changes on or before that day.

V. Certification And Trading Of Emission Reduction Credits Offset And Netting Transactions V.A. Purpose This section establishes procedures for the recording of certified emissions reductions and for their use in emission credit transactions. These procedures are intended to: V.A.1. Promote economic development and lower the cost of meeting pollution control requirements while assuring ambient air quality progress and continued air quality maintenance; and V.A.2. Encourage development of innovative pollution control methods and technologies. V.A.3. The portions of Regulation No. 3, Part A, section V printed in italics are repealed and shall no longer be part of this regulation in accordance with the following sentence: Pursuant to Colorado Revised Statutes section 24-4-103(5), the commission designates the effective date of the repeal of the italicized portions of Regulation No. 3, Part A, section V as the date on which the U.S. EPA promulgates a final rule adopting the revisions to section V of this regulation (and commission Regulation No. 5) as a permanent part of the state implementation plan.

V.B. Scope This section applies to any pollutant regulated under the Colorado Air Quality Control Act or the regulations promulgated thereunder in all attainment and nonattainment areas of the state. This section does not apply to emissions trading under permit caps in section IV.C., of Part A. V.C. Definitions V.C.1. Alternative compliance methods means the use of emissions reductions credits to meet emissions control requirements in lieu of an applicable control technique guidance method or reasonably available control technology.

1. V.C.2. Bubble lets existing sources (or groups of sources) increase emissions at one operation in exchange for compensating extra decreases in emissions at another operation. The net result must be equivalent to or better than would have been accomplished using conventional source-specific controls.
   1. V.C.3. Certified emissions reduction means a reduction in emissions below the baseline, that has been certified by the division in accordance with the criteria of section V.E., and that may then be used in an emission credit transaction.
      1. V.C.4. Criteria pollutant means an air pollutant for which a National Ambient Air Quality Standard has been promulgated.
         1. V.C.5. Emission credit transaction means the use of certified emission reduction credits in a bubble, netting or offset transaction or as an alternative compliance method. V.C.6. Netting is designed to exempt modifications of existing major sources from new source review requirements if the resultant impact does not exceed any of the significant values found in the definition of significant in section I.B.59., of Part A. V.C.7. Non-inventoried source means any source that has not been recorded on the division's emission inventory system.

            V.C.8. Offset means a transaction in which a certified emissions reduction is used either to avoid causing a violation of an increment in an attainment area, to meet the requirements of section IV.D.2.a.(iii), Part B, regarding the maintenance of reasonable further progress towards attainment of the National Ambient Air Quality Standards in nonattainment areas, or to avoid contributing to visibility or other air quality related values impairment in a Class I area.

            V.C.9. Registry means the division's record of the certification and use of emissions reductions. V.C.10. Surplus means emission reductions not required by current regulations, relied on for state implementation plan planning purposes, and not used to meet any other regulatory requirement.

            V.C.11. Open Dust means solid or other air borne particulate matter (excluding particulates produced directly during combustion) resulting from natural forces or from surface use or disturbance, including, but not limited to, all dust from agriculture, construction, forestry, unpaved roads, mining, exploration, or similar activities in which earth is either moved, stored, transported or redistributed.

            V.C.12. Baseline emissions are equal to the product of the: V.C.12.a. Emission Rate (ER), specified in terms of mass emission per unit of production or throughput (e.g., pounds sulfur dioxide per million British thermal units or pounds of volatile organic compounds per weight of solids applied); V.C.12.b. Average hourly capacity utilization (CU) e.g., millions of British thermal units per hour or weight of solids applied per hour; and V.C.12.c. Number of hours of operation (H) during the relevant time period i.e., baseline emissions = ER x CU x H. Net baseline emissions for a bubble are the sum of the baseline emissions of all sources involved in the trade. V.D. Procedure for Certification of Emissions Reductions and Approval of Transactions V.D.1. The owner or operator of a source may request the division to certify any emissions reduction anticipated to occur after the effective date of this section, provided the owner or operator files his application prior to the occurrence of the reduction, at a time at which the source is emitting the baseline emissions of the subject pollutant. Sources that shutdown prior to the application to bank or trade have zero emissions, and therefore no credit is available.

            V.D.2. Upon receiving an application for certification, the division may require the applicant to submit all data and calculations necessary to verify the baseline emissions or the reduction of emissions below the base level including, but not limited to, documentation of operating hours and inputs. The division may also require the applicant to perform source tests to establish the baseline emissions or the reduction of emissions below the baseline emissions. The division shall not certify reductions anticipated to occur after the effective date of this regulation until the reductions have occurred and been verified. V.D.3. The division shall maintain an emissions reduction registry, in which it shall maintain a record of all certified emissions reductions, and of the use of certified emissions reductions in emission credit transactions. The information contained in such registry shall include the name and address of the owner or operator of the source creating the emissions reduction, the location of the source, its stack parameters, the temperature and velocity of its plume, particle size, the existence of any hazardous pollutants, daily and seasonal emission rates, and any other data that might reasonably be necessary to evaluate future use.

            V.D.4. If the division determines that certification should be granted it shall modify the permit of the applicant to provide that the allowable emissions are equal to the level of current emissions utilized in the calculation of the emissions reduction. The owner or operator of a source not required to obtain a permit by provisions of law other than this section shall be required to apply for and accept a permit as a condition of obtaining a certified emissions reduction. Such permits shall contain only those conditions necessary to ensure the enforcement of the emissions limitations applicable to the source as a result of certification of its emissions reduction.

            V.D.5. The amount of the emissions reduction to be certified and entered in the registry shall be calculated as follows:

            V.D.5.a. For any emissions reduction that has occurred in an attainment area, the amount of the certified emissions reduction shall be 90 percent of the amount by which emissions have been reduced below the baseline emissions. V.D.5.b. For any emissions reduction that has occurred in a nonattainment area, the amount of the certified emission reduction shall be 80 percent of the amount by which emissions have been reduced below the baseline emissions. V.D.5.c. For bubbles in nonattainment areas that need, but lack, approved demonstrations of attainment, i.e., areas with unapproved state implementation plans, a greater discount may be taken. This discount will be based on the area's total baseline emissions, the target emissions for attainment, the emissions for the projected attainment year and the reductions needed to achieve attainment. These values are dynamic and so the discount value may change from year to year but will never be less than 20 percent. These transactions will require a state implementation plan revision.

            V.D.6. An application may be filed for approval of the use of a certified emissions reduction in an emissions credit transaction simultaneously with the filing of a certification application, or within seven years after certification has been granted. If the transaction would require the modification of permits held by more than one person, the application shall be jointly submitted by all potentially affected permittees. The commission shall determine whether to approve all bubble and alternative compliance method transactions, or any offset transactions that, pursuant to section V.H., require a state implementation plan revision. The division shall determine whether to approve all netting transactions, or any offset transactions for which no state implementation plan revision is required. The commission may approve the use of a certified emissions reduction credit as an alternative compliance method in lieu of a specified control technique guidance method or reasonable available control technology.

            V.D.7. Applications for certification of emissions reductions and approval of transactions shall be made on forms provided by the division. Any source applying for approval of an alternative compliance method transaction shall submit to the division a construction permit application in accordance with Regulation No. 3, Part B, section IV., for the construction or modification, reflecting the source and proposed use of the emissions credit. The application shall contain information sufficient to demonstrate that the criteria set forth in section V.F. of this Part A are met as well as the criteria for approval of the state implementation plan revision. The division shall review the application and prepare its preliminary analysis in accordance with Regulation No. 3, Part B, section IV.B. The source requesting approval for the transaction and the state implementation plan revision should be granted, and shall provide with its petition, a copy of the preliminary analysis of the division. The division shall not grant initial approval of any such application until the commission has approved the transaction, the source has met the conditions placed on the transaction by the commission, and the requirements of all other applicable regulations are met.

            V.D.8. Where the owner or operator of a source requests a state implementation plan revision pursuant to this section V., the commission shall set a hearing on the proposed revision to be held in accordance with the procedures set forth in Colorado Revised Statutes section 25-7-119. With respect to applications for certification of emissions reductions, or for approval of any netting transactions, or offset transactions within the division's jurisdiction under section V.H.2., the same time limitations for emission permits as found in Part B section IV.B., of this regulation shall apply. V.D.9. Applicants for certification of an emissions reduction, or for approval of any emission credit transaction, shall be assessed fees for time spent by division personnel in evaluating such applications in accord with the criteria for assessment of emissions permit fees set forth in section VI.C. Where more than one person applies for approval of a transaction, all such persons shall be jointly liable for the fees assessed. Applicants shall be responsible for paying such fees regardless of whether the division approves or denies an application. The costs of division review of any emissions modeling or other information necessary for the division to formulate recommendations to the commission regarding any proposed emission credit transaction shall be included in the costs attributed to the permit application for the source(s) seeking approval of the transaction and shall be paid by the source regardless of whether the emission credit transaction is approved.

            V.D.10. The state shall not utilize a certified emissions reduction in making demonstrations of attainment, or reasonable further progress toward attainment of the National Ambient Air Quality Standards, within seven years after the date of certification, or at any time after an application for use of the certified emissions reduction in a transaction has been approved. Where no application has been filed for the approval of the use of a certified emissions reduction within seven years after certification was granted, the state shall subsequently utilize the reduction in making demonstrations of attainment, or reasonable further progress towards attainment of the National Ambient Air Quality Standards. This seven-year period shall be tolled during any time in that there is a pending application before the division or the commission for approval of a bubble, netting, or offset transaction based on the certified emissions reduction. V.D.11. Applications for approval of transactions involving PM (fine particulates for Prevention of Significant Deterioration increment consumption), sulfur dioxide, carbon monoxide, lead, and oxides of nitrogen (where visibility impacts are of concern), shall be subject to the following ambient air quality modeling requirements: V.D.11.a. De minimis: In general modeling is not required to determine the ambient equivalence of trades in which applicable net baseline emissions do not increase and in that the sum of the emissions increases, looking only at the increasing sources, 15 tons per year for PM , 40 tons per year for sulfur dioxide, 100 tons per year for carbon monoxide, 40 tons per year for nitrogen oxide (where visibility impacts are of concern), or 0.6 tons per year for lead, after applicable control requirements. For purposes of Prevention of Significant Deterioration any increase in PM should be modeled.

            V.D.11.b. Level 1: In general, modeling to determine ambient equivalence is not required if:

            V.D.11.b.(i) The trade does not result in an increase in applicable net baseline emissions;

            V.D.11.b.(ii) The relevant sources are located in the same immediate vicinity (within 250 meters) of each other;

            V.D.11.b.(iii) An increase in baseline emissions does not occur at the source with the lower effective plume height, as determined under the U.S. EPA approved and division accepted guidelines, as interpreted in the Code of Federal Regulations Title 40, Subpart 52.343.

            V.D.11.b.(iv) No complex terrain is within the area of significant impact (see Figure 1) of the trade or 50 kilometers, whichever is less; V.D.11.b.(v) Stacks with increasing baseline emissions are sufficiently tall to avoid possible downwash situations, as determined by good engineering practice;

            V.D.11.b.(vi) The trade does not involve open dust sources. V.D.11.c. Level II: Bubble trades that are neither De minimis nor Level I may nevertheless be evaluated for approval based on modeling to determine ambient equivalence limited solely to the impacts of the specific emission sources involved in the trade, if:

            V.D.11.c.(i) There is no increase in applicable net baseline emissions; V.D.11.c.(ii) If the potential change in emissions before and after the trade will not cause a significant increase in pollutant concentrations at any receptor for an averaging time specified in an applicable ambient air quality standard; and V.D.11.c.(iii) Such an analysis does not predict any increase in ambient concentrations in a Class I or Category I area. However, a bubble will not be approved under Level II where evidence clearly indicates the bubble would create a new violation of an ambient standard or Prevention of Significant Deterioration increment or would delay the planned removal of an existing violation. The change in concentration from the before- trade case to the after-trade case must, in general, be modeled using refined models for each appropriate averaging time for the relevant national ambient air quality standards for each receptor, using the most recent full year of meteorological data. Other techniques may be approved where sources show they equally well protect national ambient air quality standards, applicable Prevention of Significant Deterioration increments, and visibility. For example, in limited circumstances conservative screening models may be acceptable in lieu of refined models. In such cases, use of a full year of meteorological data may not be necessary. Such screening models may be acceptable where: (A) the screening model shows that all the emissions from the stack(s) with increasing emissions would not produce exceedances of the Level II significance values; (B) the stack parameters at the stack(s) with increasing emissions do not change; and (C) the screening model shows that the increase in emissions at the increasing stack(s) would not produce exceedances of these significant values.

            In determining significant impact for Level II bubble trades, the division will use the following significance values to identify trades whose potential ambient impact need not be further evaluated before approval: 8 micrograms/cubic meter (µg/m3) for any twenty-four hour period for PM ;

            4 micrograms/cubic meter (µg/m3) for any annual arithmetic mean for PM ;

            13 micrograms/cubic meter (µg/m3) for any twenty-four hour period for sulfur dioxide;

            46 micrograms/cubic meter (µg/m3) for any three hour period for sulfur dioxide;

            3 micrograms/cubic meter (µg/m3) for any annual period for sulfur dioxide;

            575 micrograms/cubic meter (µg/m3) for any eight hour period for carbon monoxide;

            2,300 micrograms/cubic meter (µg/m3) for any one hour period for carbon monoxide;

         2. 0.1 micrograms/cubic meter (µg/m3) for any three month period for lead.

            Except that:

            V.D.11.c.(iii)(A) For offset transactions, significant impact shall be determined by the values found in the table of significant values in section IV.D.3.d.(ii) of this regulation, Part B.

            V.D.11.c.(iii)(B) Only process fugitive emissions vented through stacks may be approved in a Level II analysis.

            V.D.11.c.(iii)(C) Trades involving open dust sources may not be approved in a Level II analysis.

            V.D.11.c.(iii)(D) Trades involving complex terrain cannot be approved with a Level II analysis.

            V.D.11.d. LEVEL III full dispersion modeling considering all sources affecting the trade's area of impact is required to determine ambient equivalence if applicable net baseline emissions will increase as a result of the trade, or if the trade cannot meet criteria for approval under De Minimis, Level I or Level II. V.D.11.e. Approved Models:

            Modeling: Only U.S. EPA-approved models may be used in banking transactions. Use of non-guideline models will be allowed once they have been approved according to the requirements of section VIII.A.1., Part A, of this regulation. V.D.12. Following the certification of an emissions reduction, if the division determines that certification was granted on the basis of fraud or material misstatement or omission, the division shall revoke certification of the reduction. Certification shall be revoked only after the owners or operators of the affected sources have received notice and, if requested, a hearing has been conducted. In such cases the division shall also modify the permit of the source that has used the emissions reduction, so that the permit will contain all conditions that would have applied if the emissions reduction had not been certified initially.

V.E. Criteria for Certification of Emissions Reductions An emissions reduction shall be certified for use in an emission credit transaction, provided it meets the following criteria:

1. V.E.1. The emissions reduction shall be surplus. Surplus reductions are those below the baseline emissions. The baseline emissions shall be determined as follows: V.E.1.a. In attainment areas, the baseline emissions shall be a source's actual emissions of the subject pollutant, or allowable emissions whichever is lower, for the three baseline factors. Reasonably Available Control Technology shall be as set forth in the State implementation plan for the source. Where Reasonably Available Control Technology has not been determined in the state implementation plan for the source, it shall be determined by the division.
   1. V.E.1.b. In nonattainment areas for which there is a demonstration of attainment of the National Ambient Air Quality Standards approved by the U.S. EPA, the baseline emissions shall be actual emissions, provided, however, the baseline emissions shall not exceed reasonably available control technology as defined in the state implementation plan or the level of emissions used by the state in making a demonstration of attainment.
      1. V.E.1.c. In nonattainment areas for which there is not a demonstration of attainment of National Ambient Air Quality Standards approved by the U.S. EPA, the baseline emissions shall be the lower of: 1) the actual emissions, 2) allowable emissions under the state implementation plan or 3) allowable emissions if the source is subject to Reasonably Available Control Technology.
         1. V.E.1.d. Emission rate, capacity utilization and hours of operation must be used to compute pre-trade and post-trade emission levels. Baseline must be established on an annual basis and for all other averaging periods consistent with the relevant National Ambient Air Quality Standards and Prevention of Significant Deterioration increments.

            V.E.2. No emissions reduction shall be certified if the division has relied upon the occurrence of the reduction in demonstrating attainment of the National Ambient Air Quality Standards or reasonable further progress towards attainment, or in establishing a baseline concentration.

            V.E.3. Each certified reduction of a pollutant's emissions shall be quantified in the same unit of measurement used in the standard or regulation applicable to the pollutant. V.E.4. In attainment areas, reductions at major stationary sources that commenced construction after January 1, 1975 may be able to qualify for credit whether such reductions occurred before or after the Prevention of Significant Deterioration baseline triggering date. Other emission reductions (e.g., at minor sources) cannot qualify for credit where the Prevention of Significant Deterioration baseline date is or has been triggered and such reductions occurred prior to the trigger date, unless these reductions are not assumed in the Prevention of Significant Deterioration baselines. Since banked emission reduction credits must be considered to be “In the Air” for all planning purposes, if the baseline date is triggered before banked credits are actually used, such banked credits will be considered as part of the baseline and will not consume increment when used in an emissions trade.

            In attainment areas where the Prevention of Significant Deterioration baseline has not been triggered as of the date the permitting authority takes relevant final action on the trading transaction, reductions below current state implementation plan or permit limits generally may be used without special restrictions in bubble or banking transactions, provided they are otherwise creditable and there is assurance that National Ambient Air Quality Standards will not be violated due to any potential increase in actual emissions. However, reductions at sources other than major stationary sources on which construction commenced before January 1, 1975 may not be used to balance increases at such pre-1975 major sources.

            V.E.5. Emission reductions achieved by shutting down an existing source or curtailing production or operating hours below baseline levels may be generally credited if such reductions are permanent, quantifiable, and federally enforceable, and if the area has an U.S. EPA- approved attainment plan. In addition, the shutdown or curtailment is creditable only if it occurred on or after the date specified for this purpose in the plan, and if such date is on or after the date of the most recent emissions inventory used in the plan's demonstration of attainment. Where the plan does not specify a cutoff date for shutdown credits, the date of the most recent emissions inventory or attainment demonstration, as the case may be, shall apply. However, in no event may credit be given for shutdowns that occurred prior to August 7, 1977. For purposes of this section a permitting authority may choose to consider a prior shutdown or curtailment to have occurred after the date of its most recent emissions inventory, if the inventory explicitly includes as current existing emissions the emissions from such previously shutdown or curtailed sources. V.E.5.a. Such reductions may be credited in the absence of an approved attainment demonstration only if the shutdown or curtailment occurred on or after the date the new source permit application is filed, or, if the applicant can establish that the proposed new source is a replacement for the shutdown or curtailed source, and the cutoff date provisions of section A, above, are met. V.E.6. No emission reduction credits are allowed from mobile sources unless those sources are subject to ambient impact and new source review permitting. V.E.7. Reductions down to compliance levels may not qualify for emission reduction credit. V.E.8. If an existing source commits to switch to a cleaner fuel at some future date, emission reduction credit is allowable only if a permit is conditioned to require use of a specified alternative control measure that would achieve the same degree of emission reduction should the source switch back to a dirtier fuel at some later date. The division will ensure that adequate long-term supplies of the new fuel are available before granting the reduction credit.

            V.E.9. Emission reductions otherwise required by the Federal Act shall not be creditable as emission reductions. Incidental emission reductions that are not otherwise required by the Federal Act are creditable as emission reductions if such emission reductions meet the requirements of section IV.D.2., Part B, if applicable and this section V. V.F. Criteria for Approval of all Transactions The use of an emissions reduction in an emission credit transaction shall be approved only if it meets the following criteria:

            V.F.1. The transaction shall involve like pollutants. For toxic or volatile organic compound pollutants, the trade should involve the same degrees of toxicity or photochemical reactivity or else a greater reduction may be required. New or modified major sources of a PM precursor can only obtain offsets from emissions reductions in that same PM 10 10 precursor or in PM . New or modified major sources of PM can only obtain offsets from 10 10 emissions reductions in PM . The offsets must be greater than one for one and represent a net air quality benefit in the area the source is proposing to locate or modify. (See exception in section V.H.8.)

            V.F.2. No transaction shall be approved if it will result in an increased concentration, at the point of maximum impact, of hazardous air pollutants.

            V.F.3. Where a significant fraction of a criteria pollutant stream has been listed as hazardous by the commission under Regulation No. 8 or the U.S. EPA under United States Code, Title 42, Section 7412 but has not yet been regulated, emissions containing that pollutant from sources within two hundred and fifty meters of each other may only be traded against each other on a greater than one for one basis that assures a net decrease in emissions of the hazardous pollutant.

            V.F.4. Hazardous and non-hazardous emissions of the same criteria pollutant may be traded against each other, provided the total emissions containing the hazardous pollutant from the sources involved in the transaction are required to decrease as a result of the transaction.

            V.F.5. No transaction may be approved that is inconsistent with any standard established by the Federal Act, the state Act or the regulations promulgated under either, or to circumvent New Source Performance Standards requirements or Best Available Control Technology although the commission may approve a transaction using a certified emissions reduction credit in lieu of a specified control technique guidance method or reasonably available control technology.

            V.F.6. No transaction shall be approved unless either:

            V.F.6.a. The source at which the emissions reduction occurred and the source using the emissions reductions are in the same nonattainment area or Prevention of Significant Deterioration baseline area; or V.F.6.b. The emissions reduction is to be used as an offset to meet the requirements of section IV.D.2.a.(iii), Part B, and the conditions of that section are met for the use of an offset obtained from a source outside the nonattainment area. V.F.7. Emission reduction credits may not be used to meet applicable technology-based requirements for new sources such as New Source Performance Standards, Best Available Control Technology, or Lowest Achievable Emission Rate, although the commission may approve a transaction using a certified emissions reduction credit in lieu of a specified control technique guidance method or reasonably available control technology.

            V.F.8. Trades Involving Open Dust: Sources of particulate emissions may be approved through case-by-case state implementation plan revisions based on modeled demonstrations of ambient equivalence. Sources proposing such trades must commit, as part of the trade's approval, to:

            V.F.8.a. Undertake a post-approval monitoring program to evaluate the impact of their control efforts, and V.F.8.b. Make further enforceable reductions if post-trade monitoring indicates initial open dust controls do not produce the predicted air quality results. V.F.9. The federal land manager must be notified if an emissions trade will take place within one hundred kilometers of a Prevention of Significant Deterioration Class I area. Notification must occur early enough in the review process to allow at least thirty days for the submittal of comments before the trade will be approved by the reviewing authority. Where a bubble within fifty kilometers of a Prevention of Significant Deterioration Class I area is submitted as a case-by-case state implementation plan revision, the division may call for additional technical support, beyond the applicable requirements of the modeling screen if deemed necessary to protect air quality in the Class I area. V.F.10. Effect on Trades of Subsequently-Discovered Clean Air Act Problems: Revisitation Considerations - If ambient violations are discovered in an area where the division has approved a trade, or if other violations of the act are discovered in that area, sources in the trade should be aware that they are potentially subject to requirements for additional emission reductions, just as are all other sources in the area. V.F.11. For volatile organic compound and nitrogen oxide trades, pound for pound trades will be considered equal in ambient effect where all sources involved in the trade are in the same control strategy demonstration area (nonattainment area) or if outside that area are sufficiently close to show an equal effect.

            V.F.12. For volatile organic compound trades involving surface coating, the emissions must be calculated on a solids-applied basis and should specify the maximum time period over which the emissions may be averaged, not to exceed twenty-four hours. V.F.13. The following trades require a state implementation plan revision: V.F.13.a. PM , sulfur dioxide, carbon monoxide or lead trades requiring full scale dispersion modeling under Level III;

            V.F.13.b. PM , sulfur dioxide, carbon monoxide or lead trades where complex terrain is within the area of the source's significant impact or fifty kilometers, whichever is less, unless the trade does not result in a modification of effective stack heights and the trade otherwise qualifies as De mimimis or Level I. The area of significant impact can be determined from Figure 1;

            V.F.13.c. Open Dust Trades;

            V.F.13.d. Level II trades involving process fugitive PM , sulfur dioxide, carbon monoxide or lead emissions not discharged through stacks;

            V.F.13.e. Trades involving Emission Reduction Credits from mobile sources (SEE section V.E.7.);

            V.F.13.f. Trades involving sources that are subject of a notice of violation (NOV), noncompliance penalty action or the filing of a judicial complaint; V.F.13.g. Interstate trades;

            V.F.13.h. Volatile organic compound trades with averaging times longer than twenty-four hours;

            V.F.13.i. Trades involving work practice and equipment standards; V.F.13.j. Trades involving negotiated Reasonably Available Control Technology baselines;

            V.F.13.k. Trades affecting areas that need but lack approved demonstrations of attainment.

            V.F.13.l. Emission credit transactions used as an alternative compliance method. V.F.14. No emission credit transaction shall be approved unless the terms of the transaction are incorporated in permits applicable to the originating (as applicable) and receiving emissions sources.

            V.F.15. Emission credit transactions that require a state implementation plan revision shall be considered by the commission on a case-by-case basis. The source requesting approval of the transaction has the burden of demonstrating that all the criteria of this section V.F., are met and of demonstrating that all applicable requirements for approval of the state implementation plan revision has been met.

V.G. Bubble Transactions V.G.1. An owner or operator of an existing source may apply to the commission for approval of a state implementation plan revision establishing a bubble. The bubble shall establish new emissions limitations for two or more facilities or operations within the source. V.G.2. The commission shall not approve a bubble unless it meets the criteria for approval of section V.F., and the division has first certified an emissions reduction at a facility or operation included in the bubble.

1. V.G.3. As part of the certification process, the amount of allowable emissions shall be reduced at the facility or operation where the emissions reduction has occurred in accord with section V.D.5. As part of the bubble approval, the commission may approve an increase in the total allowable emissions at the other facilities or operations covered by the bubble, by an amount not to exceed the amount of the subject certified emissions reduction. V.G.4. As part of the bubble approval, the commission may extend compliance deadlines otherwise required by commission regulations for volatile organic compounds or carbon monoxide emissions, provided the following criteria are met: V.G.4.a. If the source is located in a nonattainment area, the area must have received an attainment extension from the U.S. EPA beyond December 31, 1982. V.G.4.b. The applicant must demonstrate to the satisfaction of the commission that reasonable further progress toward the attainment of the National Ambient Air Quality Standards under the state implementation plan shall be maintained either by:
   1. V.G.4.b.(i) Achievement of emissions reductions earlier than otherwise required by certain facilities or operations covered by the bubble; or V.G.4.b.(ii) Temporary use of a certified emissions reduction to assure reasonable further progress toward attainment of the National Ambient Air Quality Standards.
      1. V.G.5. If subsequent to the approval of a bubble, the commission promulgates new regulations or amends existing regulations applicable to a source for which the bubble has been approved, the source shall be required to meet the new or amended regulations, irrespective of the bubble, by either further reducing emissions or using certified emissions reductions as offsets.
         1. V.G.6. Bubble applications in areas that require but lack approved demonstrations of attainment, i.e., non-approved state implementation plans, must be accompanied by assurances of consistency with ambient progress and air quality planning goals specified below: V.G.6.a. The resulting emission limits comply with the reduction requirements of section V.D.5.c., and the baseline requirements of section V.E.; V.G.6.b. The bubble emission limits will be included in any new state implementation plan and associated control strategy demonstration;

            V.G.6.c. The bubble will not constrain the division's ability to obtain any additional emission reductions needed to expeditiously attain and maintain ambient air quality standards;

            V.G.6.d. The division is making reasonable efforts to develop a complete approvable state implementation plan and intends to adhere to the schedule for such development (including dates for completion of emission inventory and subsequent increments of progress) stated in or with the letter formally submitting the bubble.

            V.G.7. Bubbles should not increase applicable net baseline emissions. Ordinarily, bubbles may not result in an increase in applicable net baseline emissions. Such a bubble would require a case-by-case state implementation plan revision, and may only be approved based upon a combined Level III and Level II modeling analysis (i.e., an analysis sufficient to show that all applicable requirements of a full Level III analysis are met, and that the bubble would not result in any exceedance of significance values specified for a Level II analysis at any receptor for any averaging time specified in an applicable ambient air quality standard).

            V.G.8. Bubbles should not increase emissions of hazardous or toxic air pollutants. V.H. Offset Transactions V.H.1. The owner or operator of a source at which an emissions reduction has occurred, and the owner or operator of another source who wishes to use the emissions reduction as an offset, may apply for approval of an offset transaction. In such transactions certified emissions reductions may be applied to avoid causing a violation of an increment in an attainment area, or to meet the requirements of section IV.D.2.a.(iii), Part B. A certified emissions reduction may not be used as an offset for the purpose of complying with an existing applicable emissions control regulation, except for Reasonably Available Control Technology.

            V.H.2. The division shall determine whether to approve an offset transaction in the following cases:

            V.H.2.a. Where the source using the emissions reduction would be allowed to increase emissions by less than one hundred tons per year.

            V.H.2.b. Where the transaction involves volatile organic compounds or oxides of nitrogen emissions.

            V.H.2.c. Where the transaction involves sulfur dioxide, PM or carbon monoxide emissions, and all sources involved in the transaction are within two hundred and fifty meters of one another.

            V.H.3. Any proposed offset transaction, other than those referred to in section V.H.2., shall be treated as a request to the commission for a state implementation plan revision. V.H.4. Sources of PM precursors, sulfur dioxide, nitrogen oxide and carbon monoxide must seek offsets within reasonably close proximity. Sources of nitrogen oxide and volatile organic compounds may seek offsets over a greater area. However, for widely dispersed and volatile organic compound trades, a higher offset may be required. V.H.5. If the applicant has used his best efforts in seeking the required emission offsets but was unsuccessful, the source may petition for use of some portion of growth allowance. The petition must state the emission increase will not interfere with Reasonably Further Progress and the petitioner is willing to enter into an enforceable program to provide the required emission offset at some future time.

            V.H.6. In the absence of an approved attainment demonstration, banked Emission Reduction Credits from shutdowns or curtailments may be used for offsets only if the criteria stated in section V.E.5.b., of Regulation, Part A, are met.

            V.H.7. In nonattainment areas with approved demonstrations, banked Emission Reduction Credits may be used for offsets in any trade provided the criteria stated in section V.E.5.a., Part A, of this Regulation are met.

            V.H.8. Interpollutant offsets (other than those offsets discussed above) may be approved by U.S. EPA on a case-by-case basis provided that the applicant demonstrates, on the basis of U.S. EPA-approved methods where possible, that the emissions increases from the new or modified source will not cause or contribute to a violation of an ambient air quality standard. A source's permit application that includes such an interpollutant offset proposal shall not be approved by the division until there has been an opportunity for public hearing on the proposed emissions trade and until written approval has been received from the U.S. EPA.

V.I. Netting Transactions V.I.1. Netting may exempt modifications of existing major sources from certain pre-construction permit requirements under new source review, so long as there is no significant net emission increase, as net emissions increase is defined in section I.B.37., of this regulation. By netting out, the modification is not considered major and therefore not subject to pre-construction permit requirements for major modifications as follows: V.I.1.a. Section IV.D.3., Part B, for prevention of significant deterioration; V.I.1.b. Visibility analysis; and V.I.1.c. Section IV.D.2.a., Part B, for nonattainment new source review. V.I.2. The division shall grant such an exemption if the emissions reduction qualifies as an Emission Reduction Credit under Regulation No. 5 meets the criteria in section V.E., for certification, and the difference between the amount of the certified emissions reduction, and the amount of new pollutants to be emitted from the new or modified facility, does not constitute a significant increase of pollutants.

1. V.I.3. An increase of pollutants shall be considered significant if it equals or exceeds the amounts specified in the definition of significant in Part A.

VI. FEES VI.A. General VI.A.1. Every person required to obtain a Construction or Operating Permit or to file an Air Pollution Emission Notice shall pay fees as set forth in the following sections. Such fees shall be charged to recover the direct and indirect costs incurred by the division in processing permit applications, issuing permits, and in conducting a compliance monitoring and enforcement program. Such fees shall apply without regard to whether a permit is issued, denied, withdrawn, or revoked. Fees shall be charged as indicated on the fee schedule of this regulation.

1. VI.A.2. All fees assessed must be received within thirty days of the date of receipt of the written request therefore. All fees collected under this regulation shall be made payable to the Colorado Department of Public Health and Environment. The permit shall not be issued until all such assessed fees have been paid.

VI.B. Permit Fees VI.B.1. Applicants for a permit shall be assessed total fees that shall be partially determined at the time that the division makes its decision whether to issue preliminary approval of the permit and partially at the time the division makes its decision whether to issue final approval.

1. VI.B.2. The partial fee collected at the time the division makes its decision whether to issue preliminary approval of the permit shall include the costs associated with the preliminary engineering evaluation, modeling, and analysis of impact on ambient air quality, notice and publication requirements, and such other costs as are required for the aforementioned activities incurred by the division up to the time of the decision of whether to issue preliminary approval.
   1. VI.B.3. The final fee collected at the time the division makes its decision of whether to issue final approval shall include the balance of the total of all costs associated with enforcement of any terms and conditions of the emission permit, the supervision of compliance testing, notice and publication requirements, and such other costs as are required for the processing, issuance, and administration of the permit. VI.B.4. Effective July 1, 1992 the hourly billing shall be as set forth in the fee schedule of this section.
      1. VI.B.5. If the division requires more than thirty hours to process an application, the division shall inform the owner or operator of the source and provide an estimate of what the actual charges may be, prior to commencing with processing of the application, unless the owner or operator waives this requirement in writing.

VI.C. Annual Fees VI.C.1. As used in this section VI., regulated pollutant means: VI.C.1.a. A volatile organic compound;

1. VI.C.1.b. Each hazardous air pollutant;
   1. VI.C.1.c. Each pollutant regulated under section 111 of the Federal Act (New Source Performance Standards); and VI.C.1.d. Each pollutant for which a National Ambient Air Quality Standard has been promulgated, except for carbon monoxide.
      1. VI.C.1.e. Each pollutant regulated under section 25-7-109 of the state Act. VI.C.1.f. The term regulated pollutant does not include fugitive dust as defined in section I.B.24., of this Regulation No. 3, Part A, or any fraction thereof. VI.C.2. Every owner or operator of an air pollution source required to file an Air Pollutant Emission Notice shall pay an annual nonrefundable fee as set forth in the fee schedule of this section.
         1. VI.C.3. In no event shall an owner or operator of a source pay more than a fee based upon total annual emissions of four thousand tons of each regulated pollutant per source. VI.D. Fee Schedule VI.D.1. Annual and permit processing fees shall be charged in accordance with and in the amounts and limits specified in the provisions of Colorado Revised Statutes section 25-7- 114.7.

            VI.D.2. Air Pollutant Emission Notice fees shall be charged in accordance with and in the amounts and limits specified in the provisions of Colorado Revised Statutes section 25-7- 114.1.

VII. CONFIDENTIAL INFORMATION OR DATA CONTAINED IN AIR POLLUTANT EMISSION NOTICES, PERMIT APPLICATIONS, OR REPORTS SUBMITTED PURSUANT TO PART C, SECTION V.C.6.

VII.A. Upon written request to the division, any person filing an Air Pollutant Emission Notice or permit application, or submitting reports pursuant to Regulation No. 3, Part C, sections V.C.6., or V.C.7., may request that information contained in such an Air Pollutant Emission Notice, permit application, or report relating to secret processes or methods of manufacture or production be kept confidential. The written request must identify the basis for the claim that the information relates to secret processes or methods of manufacture or production. All information claimed as confidential must be segregated from the rest of the Air Pollutant Emission Notice, permit application, or report when submitted, with each page clearly marked as “Confidential,” “Trade Secret,” or other similar marking.

VII.B. The division will evaluate confidentiality claims based on the written request. The burden of establishing that the information relates to secret processes or methods of manufacture or production is on the claimant. Emission data, as defined in Colorado Revised Statutes section 25- 7-103(11.5), shall not be entitled to confidential treatment notwithstanding this section VII., Part A, Regulation No. 3, or any other law to the contrary. In no event shall an Operating Permit or the compliance certifications submitted pursuant to section III.B.8., Part C, Regulation No. 3 be entitled to confidential treatment. If the division determines that information requested to be kept confidential is not entitled to confidential treatment, it shall provide written notice of this determination at least three working days prior to making such information available to the public. VII.C. A request for confidential treatment of information or data submitted to the division shall be deemed a limited waiver by the applicant of the time constraints contained in section IV.B., Part B, or section IV., Part C. Therefore, any delay in the processing of a permit application resulting from the division's being required to give notice under section VII.B., hereof, shall not be considered in determining whether the time constraints set forth in this regulation have been met. VIII. TECHNICAL MODELING AND MONITORING REQUIREMENTS VIII.A. Air Quality Models VIII.A.1. All estimates of ambient concentrations required under this Regulation No. 3 shall be based on the applicable air quality models, databases, and other requirements generally approved by U.S. EPA and specifically approved by the division. If a non-U.S. EPA approved model, such as a wind tunnel study, is proposed, the nature and requirements of such a model should be outlined to the division at a preapplication meeting. The application will be deemed incomplete until there has been an opportunity for a public hearing on the proposed model and written approval of the U.S. EPA has been received.

VIII.B. Monitoring VIII.B.1. All monitoring must be performed in accordance with U.S. EPA accepted procedures as approved by the division.

1. VIII.B.2. An owner or operator may submit a monitoring program for a proposed source or modification to the division for review. Within sixty days after such submittal, the division shall:
   1. VIII.B.2.a. Approve the monitoring program; or VIII.B.2.b. Specify the changes necessary for approval; otherwise, the monitoring program shall be deemed approved.

VIII.C. Stack Heights This regulation sets limits for the maximum stack height credit to be used in ambient air quality modeling for the purpose of setting an emission limitation and calculating the air quality impact of a source. It does not limit the actual physical stack height for any source. The following shall not be considered in determining whether an emission limitation is met: VIII.C.1. Stack height in excess of good engineering practice; or VIII.C.2. Any other dispersion technique except that the provisions of this section VIII.C., shall not apply to stack heights in existence or dispersion techniques implemented before December 31, 1970. Sources that were constructed, reconstructed, or for which major modifications were carried out after December 31, 1970, and that are emitting pollutants from such stacks, or using such dispersion techniques, shall be subject to the provisions of this section.

VIII.D. Definitions as used in section VIII.C.

1. VIII.D.1. Stack in existence means that the owner or operator had: VIII.D.1.a. Begun, or caused to begin, a continuous program of physical on-site construction of the stack; or VIII.D.1.b. Entered into binding agreements or contractual obligations that could not be cancelled or modified without substantial loss to the owner or operator, to undertake a program of construction of the stack to be completed in a reasonable time.
   1. VIII.D.2. Dispersion Technique means any technique that attempts to affect the concentration of a pollutant in the ambient air by using that portion of a stack that exceeds good engineering practice stack height, varying the rate of emission of a pollutant according to atmospheric conditions or ambient concentrations of that pollutant, or by increasing final exhaust gas plume rise by manipulating source process parameters, exhaust gas parameters, or combining exhaust gases from several existing stacks into one stack; or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise. The preceding sentence does not include:
      1. VIII.D.2.a. The reheating of a gas stream, following use of a pollution control system, for the purpose of returning the gas to the temperature at which it was originally discharged from the facility generating the gas stream; VIII.D.2.b. The merging of exhaust gas streams where:
         1. VIII.D.2.b.(i) The source owner or operator demonstrates that the facility was originally designed and constructed with such merged gas streams; VIII.D.2.b.(ii) After July 8, 1983, such merging is part of a change in operation at the facility that includes the installation of pollution controls and is accompanied by a net reduction in the allowable emissions of a pollutant. This exclusion from the definition of dispersion techniques shall apply only to the emission limitation for the pollutant affected by such change in operation; or VIII.D.2.b.(iii) Before July 8, 1985, such merging was part of a change in operation at the facility that included the installation of emissions control equipment or was carried out for sound economic or engineering reasons. Where there was an increase in the emissions limitation or, in the event that no emission limitation was in existence prior to the merging, the reviewing agency shall presume that merging was significantly motivated by an intent to gain emissions credit for greater dispersion.

            Absent a demonstration by the source owner or operator that merging was not significantly motivated by such intent, the reviewing agency shall deny credit for the effects of such merging in calculating the allowable emissions for the source;

            VIII.D.2.c. Smoke management in agricultural or silvicultural prescribed burning programs;

            VIII.D.2.d. Episodic restrictions on residential woodburning and open burning; or VIII.D.2.e. Techniques that increase final exhaust gas plume rise where the resulting allowable emissions of sulfur dioxide from the facility do not exceed five thousand tons per year.

            VIII.D.3. Good Engineering Practice Stack Height means the greater of: VIII.D.3.a. 65 meters; or VIII.D.3.b. For stacks in existence on January 12, 1979 and for which the owner or operator had obtained all applicable pre-construction permits or approvals required, Hg = 2.5H, provided the owner or operator produces evidence that this equation was actually relied on in establishing an emission limitation; and VIII.D.3.c. For all other stacks, Hg = H+1.5L where:

            VIII.D.3.c.(i) Hg = good engineering practice stack height measured from the ground level elevation at the base of the stack;

            VIII.D.3.c.(ii) H = height of nearby structure(s) measured from the ground level elevation at the base of the stack;

            VIII.D.3.c.(iii) L = lesser dimension (height or projected width) of nearby structure(s) provided that the reviewing agency may require the use of a field study or fluid model to verify Good Engineering Practice stack height for the source; or VIII.D.3.d. The height demonstrated by a fluid model or a field study approved by the reviewing agency, which ensures that the emissions from a stack do not result in excessive concentrations of any air pollutant as a result of atmospheric downwash, wakes, or eddy effects created by the source itself, structures, or terrain obstacles.

            VIII.D.4. Nearby as applied to good engineering practice is: VIII.D.4.a. For purposes of applying the formulae provided in sections VIII.D.3.b., and VIII.D.3.c., in the definition of good engineering practice stack height means that distance up to five times the lesser of the height or the width dimension of a structure, but not greater than 0.8 kilometers (1/2 mile), and VIII.D.4.b. For conducting demonstrations in section VIII.D.3., in the definition of good engineering practice means not greater than 0.8 kilometers (1/2 mile), except that the portion of a terrain feature may be considered to be nearby that falls within a distance of up to ten times the maximum height of the feature, not to exceed two miles if such feature achieves a height 0.8 kilometers from the stack that is at least forty percent of the good engineering practice stack height determine by the formula or twenty-six meters, whichever is greater. VIII.D.5. Excessive concentrations for the purpose of determining good engineering practice, stack height in a fluid model or field study, means:

            VIII.D.5.a. For sources seeking credit for stack height exceeding that established by the formulae, a maximum ground level concentration due to emissions from a stack due in whole or part to downwash, wakes, and eddy effects produced by nearby structures or nearby terrain features that individually is at least forty percent in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and that contributes to a total concentration due to emissions from all sources that is greater than an ambient air quality standard. For sources subject to the prevention of significant deterioration program, an excessive concentration alternatively means a maximum ground level concentration due to emissions from a stack due in whole or part to downwash, wakes, or eddy effects produced by nearby structures or nearby terrain features that individually is at least forty percent in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and greater than a prevention of significant deterioration increment. The allowable emission rate to be used in making demonstrations shall be prescribed by the new source performance standard that is applicable to the source category unless the owner or operator demonstrates that this emission rate is infeasible. Where such demonstrations are approved by the division, an alternative emission rate shall be established in consultation with the source owner or operator;

            VIII.D.5.b. For sources seeking credit after October 1, 1983 for increases in existing stack heights up to the heights established by the formulae, either: VIII.D.5.b.(i) A maximum ground level concentration due in whole or part to downwash, wakes or eddy effects as provided in section VIII.D.5.a., above, except that the emission rate specified by any applicable state implementation plan (or, in the absence of such a limit, the actual emission rate) shall be used; or VIII.D.5.b.(ii) The actual presence of a local nuisance caused by the existing stack, as determined by the division; and VIII.D.5.b.(iii) For sources seeking credit after January 12, 1979 for a stack height determined using the formula, where the division requires the use of a field study or fluid model to verify good engineering practice stack height; for sources seeking stack height credit after November 9, 1984 based on the aerodynamic influence of cooling towers; and for sources seeking credit after December 31, 1970 based on the aerodynamic influence of structures not adequately represented by the formulae: a maximum ground level concentration due in whole or part to downwash, wakes or eddy effects that is at least forty percent in excess of the maximum concentration experienced in the absence of such downwash, wakes or eddy effects.

PART B CONCERNING CONSTRUCTION PERMITS INCLUDING REGULATIONS FOR THE PREVENTION OF SIGNIFICANT DETERIORATION (PSD)

I. APPLICABILITY I.A. The provisions of this Part B shall apply statewide. All sources that did not commence construction or operation prior to February 1, 1972, are required to have a construction permit except as specified in section III.

II. RESERVED III. GENERAL REQUIREMENTS FOR CONSTRUCTION PERMITS III.A. General Considerations III.A.1. Except where specifically authorized by the terms of this Regulation No. 3, no person shall commence construction of any stationary source or modification of a stationary source without first obtaining or having a valid construction permit from the division. III.A.2. Any permit that has been issued pursuant to a prior regulation of the commission, with respect to a project or the operation thereof, shall continue in full force and effect for the purpose for that it was originally issued, unless this current regulation no longer requires such permit, in that case the permit can be rescinded upon request of the owner or operator of the permitted source.

1. III.A.3. Any orders or decisions of the division shall be final upon issuance, according to section IV.G.3., of this regulation, Part B.
   1. III.A.4. Construction permits for criteria pollutants and hazardous air pollutants shall be issued based on the production/process rate requested in the Air Pollutant Emission Notice submitted with the permit application or as requested in the application. The emission rate associated with the requested production/process rate shall be a permit condition. For permits to limit the potential to emit criteria or hazardous air pollutants the division may modify the production/process rate, hours of operation or other requested permit conditions in order to create state-only or federally and practically enforceable permit conditions; provided, however, that the applicant may decline to accept such modifications and elect instead to forego limits on its potential to emit or pursues any right of appeal or other available alternative. For details regarding permits to limit the potential to emit hazardous air pollutants see Regulation No. 8, Part E, section IV. III.A.5. Construction permits are required for hazardous air pollutants if: III.A.5.a. The source is subject to Colorado Maximum Achievable Control Technology or Generally Available Control Technology; or III.A.5.b. The source is subject to Federal National Emission Standards for Hazardous Air Pollutants; or III.A.5.c. The source is subject to Federal Maximum Achievable Control Technology or Generally Available Control Technology standards; or III.A.5.d. The source is subject to Regulation No. 8, Part E, where the more specific requirements of Regulation No. 8, Part E, take precedence over requirements in this regulation.
      1. III.A.6. Owners or operators of sources that have valid operating permits in accordance with Part C of this regulation may construct or modify such source without obtaining a construction permit prior to construction or modification, provided the construction or modification qualifies for a minor permit modification or for operational flexibility, and the applicable provisions as set forth in sections X., XI., or XII., of Part C are met. In addition, all applicable requirements that are related to construction permit approval and that are set forth in sections IV.D.1.a. - IV.D.1.h., of this Part B remain in effect. III.A.7. A source that is voluntarily applying for a permit to create state-only or federally enforceable permit conditions, as appropriate, to limit the potential to emit criteria or hazardous air pollutants may request to obtain such limits in a construction permit. III.B. Transfer or Assignment of Ownership If transfer or assignment of ownership or operation of an air pollution emission source permitted pursuant to this Part B is anticipated, the prospective owner or operator shall apply to the division on division supplied administrative permit amendment forms for reissuance of the existing permit. Section III., of Part A, governs the administrative permit amendment procedures required for transfer or assignment of ownership.
         1. In accordance with the provisions of this section, the permit shall be reissued upon completion of the transfer or assignment if the applicant certifies that no change is contemplated that might constitute a new or modified air pollution source. In no event shall the new owner or operator of a source that was subject to the requirements of these regulations prior to the transfer or assignment be relieved of the obligation to comply with such requirements by reason of a transfer. Such transfers are subject to all applicable permit processing and inspection fees. If a company is changing its name only, the owner or operator shall apply to the division, on division supplied administrative permit amendment forms, for reissuance of the existing permit. Section III., of Part A, governs the administrative permit amendment procedures required for identifying a change in name. If all other procedures and information as stated in the last submitted Air Pollutant Emission Notice(s) remains unchanged, only one Air Pollutant Emission Notice need be submitted, indicating the name change.

            No administrative permit amendment for transfer or assignment of ownership of a source shall be complete until a written agreement containing a specific date for transfer of permit, responsibility, coverage and liability between the current and new permittee is received by the division. III.C. Portable Sources A permitted portable source (e.g., asphalt plants, crushers, etc.) shall have its permit number permanently and prominently displayed on each major component of equipment that is a part of that portable source.

III.D. Exemption from Construction Permit Requirements None of the exemptions listed below in sections III.D.1. – III.D.4., shall apply if a source is subject to Part A of Regulation No. 6 (New Source Performance Standards) and/or Regulation No. 8 (Hazardous Air Pollutants), Parts A,C, D, and E. Permit exemptions taken under this section do not affect the applicability of the regulations to the source. An applicant may not omit any information regarding APEN or permit exempt emission units in any application if such information is needed to determine the applicability of Title V (Part C of this Regulation No. 3), Prevention of Significant Deterioration (section IV.D.3., Part B of this Regulation No. 3), or Nonattainment New Source Review (section IV.D.2.a., Part B of this Regulation No. 3).

1. III.D.1. The following sources are exempt because by themselves, or cumulatively as a category, are deemed to have a negligible impact on air quality:
   1. III.D.1.a. Those sources exempted from the filing of Air Pollutant Emission Notices in section II.D., of Part A, of this regulation.
      1. III.D.1.b. Containers, reservoirs, or tanks used exclusively for dipping operations for coating objects with oils, waxes, greases, or natural or synthetic resins containing no organic solvents.
         1. III.D.1.c. Stationary Internal Combustion Engines that: III.D.1.c.(i) Power portable drilling rigs; or III.D.1.c.(ii) Are emergency power generators that operate no more than two hundred and fifty hours per year; or III.D.1.c.(iii) Have uncontrolled actual emissions in:

            III.D.1.c.(iii)(A) Nonattainment areas of less than five tons per year or manufacturer's site-rated horsepower of less than fifty; or III.D.1.c.(iii)(B) Attainment areas of less than ten tons per year or manufacturer's site-rated horsepower of less than one hundred. III.D.1.d. The collection, transmission, liquid treatment, and solids treatment processes at domestic wastewater treatment works, or treatment facilities that treat only domestic type wastewater, except for combustion processes. III.D.1.e. Each individual piece of fuel burning equipment, other than smokehouse generators, that uses gaseous fuel, and that has a design rate less than or equal to 10 million British thermal unit per hour.

            III.D.1.f. Gasoline stations located in ozone attainment areas, except for stations located in the Denver Metropolitan ozone attainment/maintenance area. III.D.1.g. Surface mining activities that mine seventy thousand tons or fewer of product material per year. A fugitive dust control plan is required for such sources. Crushers, screens and other processing equipment activities are not included in this exemption.

            III.D.1.h. Composting piles, however, all odor requirements of Regulation No. 2 must be met.

            III.D.1.i. Commercial and product quality control laboratory equipment. III.D.1.j. Fires and equipment used for noncommercial cooking of food for human consumption and for cooking of food for human consumption at commercial food service establishments.

            III.D.2. Facilities located in a nonattainment area for any criteria pollutant for which the area is nonattainment; with total facility uncontrolled actual emissions (potential emissions at actual operating hours) that are less than the following amounts: III.D.2.a. Two tons per year volatile organic compounds. III.D.2.b. One ton per year PM .

            III.D.2.c. Five tons per year total suspended particulate. III.D.2.d. Five tons per year carbon monoxide.

            III.D.2.e. Five tons per year sulfur dioxide.

            III.D.2.f. Five tons per year nitrogen oxides.

            III.D.2.g. Two hundred pounds per year lead.

            For purposes of calculating total facility uncontrolled actual emissions, only those individual (or grouped) emission points requiring Air Pollutant Emission Notices are to be considered.

            III.D.3. Facilities located in attainment areas for all criteria pollutants with total facility uncontrolled actual emissions less (potential emissions at actual operating hours) than the following amounts:

            III.D.3.a. Five tons per year volatile organic compounds. III.D.3.b. Five tons per year PM .

            III.D.3.c. Ten tons per year total suspended particulate. III.D.3.d. Ten tons per year carbon monoxide.

            III.D.3.e. Ten tons per year sulfur dioxide.

            III.D.3.f. Ten tons per year nitrogen oxides.

            III.D.3.g. Two hundred pounds per year lead.

            For purposes of calculating total facility uncontrolled actual emissions, only those individual (or grouped) emission points requiring Air Pollutant Emission Notices are to be considered.

            III.D.4. Facilities that emit any other criteria pollutant that is not listed in sections III.D.2., and III.D.3., above (fluorides, sulfuric acid mist, hydrogen sulfide, total reduced sulfur, reduced sulfur compounds, and municipal waste combustor emissions), with total facility uncontrolled actual emissions of such pollutants that are less than two tons per year. III.D.5. Reserved.

            III.D.6. When a facility that was previously exempt from permit requirements exceeds one of the permit de minimis levels stated in sections III.D.2. – III.D.4., above, due to the addition of new emission points, the division will issue either a facility-wide permit for all non- grandfathered emission units above Air Pollutant Emission Notice de minimis levels, or individual emission permits for those emission units.

            III.D.7. All incinerators require a permit as stated in Regulation No.1, section III.B.1. III.D.8. Oil and gas exploration and production operations that are addressed under section II.D.1.lll., of this Regulation No. 3, Part A, and that are required to obtain a construction permit, are not required to file an application for a construction permit until they are required to file an Air Pollutant Emission Notice, as set forth in section II.D.1.lll. The application shall include a list of all applicable requirements, and how the requirements will be met until a construction permit is issued.

            III.D.9. Any person may request the division to add source categories to the permit exemption list, in accordance with the procedures set forth in section II.D.5., of Part A, of this regulation.

            III.D.10. Sources with a valid operating permit are not required to obtain a construction permit prior to commencing construction or modification, as set forth in section III.A.6., of this Part B.

IV. CONSTRUCTION PERMIT REVIEW PROCEDURES IV.A. Option for Pre-Application Meeting Prior to submitting an application for a permit, an applicant may request and, if so requested, the division shall grant, a pre-application meeting with the applicant. At such meeting, the division shall advise the applicant of the applicable permit requirements, including the information, plans, specifications and the data required to be furnished with the permit application. IV.B. Application for a Construction Permit IV.B.1. An application for a Construction Permit shall be prepared on forms currently supplied by the division.

1. IV.B.2. Applications shall be signed by a person legally authorized to act on behalf of the applicant. The applicant shall furnish all information and data required by the division to evaluate the permit application and to make its preliminary analysis in accordance with section IV.B.4.
   1. IV.B.3. An application for a Construction Permit will not be deemed to be complete until all information and data required to evaluate the application have been submitted to the division. Within sixty calendar days after the receipt of an application or any supplemental information timely requested by the division, the division will give notice to the applicant if and in what respect the application is incomplete. If the division fails to notify an applicant that the application is incomplete within sixty calendar days of receipt of the original application or receipt of the requested supplemental information, the application shall be deemed to have been complete as of the day of receipt by the division of the application or the last submitted supplemental information, whichever is later. IV.B.4. Except for applications for sources subject to the requirements of section IV.D.3., (Prevention of Significant Deterioration), the division shall prepare its preliminary analysis within sixty calendar days after receipt of a complete permit application. The preliminary analysis allows the division to determine whether the new source will, at date of commencement of operation, comply with:
      1. IV.B.4.a. All applicable emission control regulations, IV.B.4.b. Applicable regulations for the control of hazardous pollutants, IV.B.4.c. Requirements of the nonattainment and attainment programs (IV.D.2., and IV.D.3.), and IV.B.4.d. Any applicable ambient air quality standards and all applicable regulations. The preliminary analysis shall indicate what impact, if any, the new source will have (as of the projected date of commencement of operation) on all areas (attainment, nonattainment, unclassifiable), within the probable area of influence of the proposed source. If so requested on the permit application form, a copy of this preliminary analysis shall be forwarded to the applicant postmarked no later than fifteen calendar days after the completion of the preliminary analysis. When the preliminary analysis includes modeling, the model used shall be an appropriate one given the topography, meteorology and other characteristics of the region that the source will impact. Use of any nonguideline model requires U.S. EPA approval under section VIII.A., of Part A.
         1. IV.B.5. The division shall complete the processing of applications (including any requested public hearing) for sources subject to section IV.D.3., of Part B of this regulation (Prevention of Significant Deterioration) within twelve months of receipt of a complete application. IV.C. Public Comment and Hearing Requirements IV.C.1. The following sources, unless exempted in section IV.C.2., below, are subject to public comment:

            IV.C.1.a. Sources with projected controlled annual emissions of any pollutant for which an ambient air quality standard has been designated, where such emissions will be greater than twenty-five tons per year if the source is located in a nonattainment area, fifty tons per year if the source is located in an attainment area, or two hundred pounds per year of lead (for any area of the state). IV.C.1.b. Sources for which preliminary analysis indicate a possible violation of commission Regulation No. 2 (odor emissions).

            IV.C.1.c. For hazardous air pollutants if:

            IV.C.1.c.(i) The source is subject to Federal National Emission Standards for Hazardous Air Pollutants, IV.C.1.c.(ii) The source is subject to Federal or Colorado Maximum Achievable Control Technology or Generally Available Control Technology standards, or IV.C.1.c.(iii) The source is voluntarily applying for permit conditions to limit the source's potential to emit hazardous air pollutants.

            IV.C.1.d. Sources subject to sections IV.D.2., or IV.D.3., of Part B that are attempting to obtain a federally enforceable limit on the potential to emit of the source in order to avoid other requirements.

            IV.C.2. The following sources are generally not required to be subject to public comment, unless the division determines that public comment is warranted pursuant to section XII.C.3., below:

            IV.C.2.a. Sources of six months duration or less, except that public comment shall be required for all sources of hazardous pollutants without regard to the duration of the operation of such source unless specifically exempted below. IV.C.2.b. Demolition projects, even if asbestos materials are present, provided that all the requirements of Regulation No. 8 are followed for any and all materials suspected of containing asbestos.

            IV.C.2.c. Construction or modification of sources in accordance with the minor modification and operational flexibility provisions of sections X., XI., and XII., of Part C, of this regulation are subject to the public participation requirements of Part C.

            IV.C.3. Sources for which a permit is required, but for which public comment is not required by sections IV.C.1., IV.C.2.a., or IV.C.2.b., above, are exempt from public comment requirements unless the division determines that public comment is warranted. In making such determinations, the division shall take into consideration the duration of the operation, its location, the nature and projected amount of emissions, anticipated public concern, and other relevant factors.

            IV.C.4. When public comment is required by section IV.C.1., or when the division determines, pursuant to section IV.C.3., that an application warrants public comment, the division shall, within fifteen calendar days after the preparation of the preliminary analysis, cause public notice of the application to be published in a newspaper of general distribution in the area in which the proposed project or activity is or will be located, and by such other means necessary to assure notice to the affected public, that may include posting of such notice on the publicly accessible portion of the division's web site, and cause a copy of the application, the preliminary analysis and the draft permit to be filed with the county clerk for each county in which the source is, or will be located. The division shall send written or electronic notice to persons requesting notice of permit applications for the type of source or geographic area. For sources applying for a permit to limit the potential to emit criteria pollutants or federal hazardous air pollutants, the division shall send a copy of the public notice and the draft permit to the U.S. EPA Administrator for comment. The division shall also send a copy of the final permit approval to the U.S. EPA Administrator for comment. For sources subject to the provisions of section IV.D.3., a copy of all the materials the applicant submitted, and a copy or summary of other materials, if any, considered in making the preliminary analysis shall be filed with the county clerk for each county in which the source is or will be located. In addition, for sources subject to the provisions of section IV.D.3., a copy of the written or electronic notice of public comment shall be sent to the applicant, the U.S. EPA Administrator, and to officials and agencies having cognizance over the location where the proposed construction would occur as follows: any other state or local air pollution control agencies, the chief executives of the city and county where the source is located, any comprehensive regional land use planning agency, and any state, Indian governing body or Federal Land Manager whose lands may be affected by emissions from the source or modification. The newspaper notice shall contain the information listed below in sections IV.C.4.a. – IV.C.4.e. The division's web site notice shall contain all of the following information in IV.C.4.a. – IV.C.4.f.:

            IV.C.4.a. The location and nature of the proposed project or activity for which a construction permit application has been filed.

            IV.C.4.b. The locations where the application and preliminary analysis are available for public inspection.

            IV.C.4.c. That comments concerning the ability of the proposed project or activity to comply with the applicable standards and regulations of the commission are solicited from any interested person.

            IV.C.4.d. That the division will receive and consider public comments for thirty calendar days after such publication.

            IV.C.4.e. The division's preliminary determination of approval, conditional approval, or disapproval of the application.

            IV.C.4.f. Additionally, for permit applications subject to the requirements of sections IV.D.2., or IV.D.3., of this Part B:

            IV.C.4.f.(i) That comments are solicited on an innovative technological system for pollution control if proposed by the applicant and that a hearing by the commission will be held on such system if requested by any interested person;

            IV.C.4.f.(ii) That comments are solicited on the air quality impacts of the source or modification;

            IV.C.4.f.(iii) That comments are solicited on alternatives to the source or modification;

            IV.C.4.f.(iv) That any interested person may submit a written request for a public comment hearing to be held pursuant to section 1.7.0., of the commission's procedural rules to receive comments regarding the foregoing concerns, the sufficiency of the preliminary analysis, and whether the division should approve or deny the permit application; and IV.C.4.f.(v) The degree of increment consumption that is expected from the source or modification.

            IV.C.5. Within fifteen calendar days after the preparation of the preliminary analysis for those applications subject to the requirements of sections IV.D.2., or IV.D.3., of this Part B, the division shall forward to the applicant written notice of the applicant's right to a public comment hearing with respect to the application pursuant to section 1.7.0., of the commission's procedural rules.

            IV.C.6. A hearing request pursuant to section IV.C.4.f.(i), Part B, regarding innovative control, must be transmitted by the division to the commission within twenty days after its receipt. IV.C.7. A hearing request pursuant to section IV.C.4.f.(iv), Part B, must be transmitted by the division to the commission, along with the complete permit application, the preliminary analysis, the draft permit, and any written comments received by the division within five days after the end of the thirty day comment period. At least thirty days prior to the date set for the public comment hearing, the notice of public comment hearing, the preliminary analysis and the draft permit shall be posted on the division's web site. No substantive revisions shall be made to the draft permit during the thirty days prior to the public comment hearing.

            IV.C.8. The commission shall hold a public comment hearing within sixty days of its receipt of the request for such hearing pursuant to section IV.C.4.f., Part B (unless such greater time is agreed to by the applicant and the division), but at least sixty days after receipt by any Federal Land Manager of notice and the permit application required pursuant to section X.A., Part B. The division shall appear at the public comment hearing in order to present the permit application. At least thirty days prior to such hearing, notice thereof shall be mailed by the commission to the applicant, to any interested person who submitted a request for a public hearing and to any Federal Land Manager given notice pursuant to section X.A., printed in a newspaper of general distribution in the area of the proposed source or modification, and submitted for public review with the county clerk for each county in which the source or modification is or will be located. Except as provided herein and in the notice, such hearings will be conducted pursuant to the Act, the Procedural Rules of the Air Quality Control Commission and the State Administrative Procedure Act, Colorado Revised Statute, section 24-4-101 et seq.

            IV.C.9. Within fifteen days after the division makes a final decision on an application subject to the requirements of Regulation No. 3., Part B, sections IV.D.2., or IV.D.3., the division shall make available for public inspection the decision and all public comments with the county clerk for each county where the pre-construction information was made available. IV.D. Construction Permit Review Requirements IV.D.1. Requirements applicable to all construction permit applications (except that processing timeframes of combined construction/operating applications shall be as set forth in Part C, section IV., of this Regulation No. 3). Within thirty calendar days following the completion of the division's preliminary analysis for applications not subject to the public comment, within thirty calendar days following the period for public comment for applications subject to public comment, or if a public comment hearing is held, within thirty calendar days following such hearing, the division shall grant the permit if it finds that:

            IV.D.1.a. The proposed source or activity will meet all applicable emission control regulations and regulations for the control of hazardous air pollutants; IV.D.1.b. As applicable, the proposed source or activity will meet the requirements of the attainment program as outlined in section IV.D.2., Part B, if any; IV.D.1.c. The proposed source or activity will not cause an exceedance of any National Ambient Air Quality Standards in any attainment area;

            IV.D.1.d. The source or activity will meet any applicable ambient air quality standards and all applicable regulations;

            IV.D.1.e. As applicable, the proposed source or modification will meet the requirements of the prevention of significant deterioration program of section IV.D.3. [Provided however, that the division shall not deny a permit for failure of the proposed source to meet any applicable requirement of the state implementation plan where (1) there is pending an application for a revision to the state implementation plan pursuant to Colorado Revised Statute, section 25-7-305 (Alternative Emission Reduction) that, if adopted, would require the division to grant the permit and (2) the applicant waives the time constraints on the division to act on its application until the commission has issued its final decision on the request for a state implementation plan revision and the U.S. EPA has acted on the proposed revision to the state implementation plan. In such circumstances, the division shall delay its decision on the permit application until after final action on the request for revision of the state implementation plan (including action by the U.S. EPA)];

            IV.D.1.f. The fees required in section VI., Part A of this regulation have been paid; IV.D.1.g. (Reserved); and, IV.D.1.h. Permit approval shall 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.

            IV.D.2. Requirements Applicable to Nonattainment Areas (Attainment Program) IV.D.2.a. Major Stationary Sources.

            For any new major stationary source or major modification, the division shall grant a permit if it determines that the following conditions in sections IV.D.2.a.(i) — IV.D.2.a.(vi), as well as those in section IV.D.1., Part B, will be met: IV.D.2.a.(i) The proposed source will achieve the lowest achievable emission rate for the specific source category.

            IV.D.2.a.(ii) The applicant has certified that all other existing major stationary sources owned, operated, or controlled by the applicant (or any entity controlling, controlled by, or under the common control with the applicant) in Colorado are in compliance with the requirements of the State implementation plan and the federally approved state implementation plan, or are subject to and in compliance with an enforceable compliance schedule, or a federally enforceable compliance schedule. IV.D.2.a.(iii) Prior to the date of commencement of operations, emission reductions (offsets) greater than one for one must be obtained from existing sources within the nonattainment area for each pollutant, or its precursors, for which the area is nonattainment.

            Offsets must represent reasonable further progress towards attainment of the National Ambient Air Quality Standards when considered in connection with other new and existing sources of emissions. In addition, offsets for PM , sulfur oxides, and carbon monoxide must show, through atmospheric modeling, a positive net air quality benefit in the area affected by the emissions. Provided, however, that offsets meeting the requirements of this section IV.D.2.a.(iii), may also be obtained from existing sources outside the nonattainment area if the applicant demonstrates:

            IV.D.2.a.(iii)(A) A greater air quality benefit may thus be achieved, or sufficient offsets are not available from sources within the nonattainment area; and IV.D.2.a.(iii)(B) The other area has an equal or higher nonattainment classification than the area in which the source is located; and IV.D.2.a.(iii)(C) Emissions from such other area contribute to a violation of the National Ambient Air Quality Standard in the nonattainment area in which the source is located.

            With respect to offsets obtained from outside the nonattainment area, the division may increase the ratio of the required offsets to new emissions the greater the distance such offsets are from the new or modified source;

            IV.D.2.a.(iv) The permit application shall include an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source that demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification. IV.D.2.a.(v) Offsets for which emission reduction credit is taken must be enforceable through permit conditions or source specific state implementation plan revisions.

            IV.D.2.a.(vi) The applicant will demonstrate that emissions from the proposed source will not adversely impact visibility in a Class I area. This demonstration shall be reviewed by the Federal Land Manager and any determination made by the Federal Land Manager shall be considered in the division's decision to grant the permit. If an adverse impact, as described in section XI.E., is predicted by the division, the permit application will be denied. Federal Land Manager involvement shall follow the same procedures as stated in section X.A., Part B of this Regulation No. 3. The demonstration will be performed using either techniques described in the latest version of the U.S. EPA document entitled “Workbook for Estimating Visibility Impairment” or other techniques approved by the division.

            IV.D.2.b. Applicability of Certain Nonattainment Area Requirements IV.D.2.b.(i) Any major source in a nonattainment area is subject to the requirement of section IV.D.2.a., Part B.

            IV.D.2.b.(ii) The requirements of section IV.D.2., a shall apply at such time that any stationary source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation that was established after August 7, 1980, on the capacity of the source or modification to otherwise emit a pollutant, such as a restriction on hours of operation.

            IV.D.2.c. Exemptions from certain nonattainment area requirements: IV.D.2.c.(i) The following are exempt from the major stationary source criteria of IV.D.2.a.(iii).

            IV.D.2.c.(i)(A) Portable sources that will relocate outside a nonattainment area in less than one year.

            IV.D.2.c.(i)(B) Each pilot plant that operates an aggregate of less than six months.

            IV.D.2.c.(i)(C) Construction phases of a new or modified building, facility, structure, or installation. These may, at the discretion of the division, exceed a period of one year.

            IV.D.2.c.(i)(D) Other temporary processes or activities of less than one year in duration.

            IV.D.2.c.(i)(E) Sources undergoing fuel switches as required by federal order if the division determines that:

            IV.D.2.c.(i)(E)(1) The applicant has used best efforts in seeking the required emission offsets but was unsuccessful;

            IV.D.2.c.(i)(E)(2) All available emission offsets were obtained; and, IV.D.2.c.(i)(E)(3) The applicant will continue to seek emission offsets as they become available.

            IV.D.2.d. Minor Sources of volatile organic compounds, carbon monoxide, nitrogen oxides, sulfur dioxide, and PM in nonattainment areas.

            IV.D.2.d.(i) For minor sources in designated nonattainment areas, permits shall be issued if, in addition to determining that the source will meet the requirements of section IV.D.1., the division determines that Reasonably Available Control Technology will be applied for the pollutants for which the area is nonattainment.

            IV.D.2.d.(ii) In the Denver PM nonattainment area, for any new minor source with a potential to emit forty tons per year or more of nitrogen oxides or sulfur dioxide, or a modification of an existing minor source with a net emissions increase of forty tons per year or more of nitrogen oxides, or sulfur dioxide, the source will install Reasonably Available Control Technology for the specific source category, as determined by the division on a case-by-case basis.

            IV.D.3. Requirements applicable to attainment and unclassifiable areas and pollutants implemented under section 110 of the Federal Act (Prevention of Significant Deterioration Program).

            IV.D.3.a. Major Stationary Sources and Major Modifications. The requirements of this section IV.D.3., shall apply to any major stationary source and any major modification with respect to each pollutant regulated under the Act and the Federal Act that it would emit, except as this Regulation No. 3 would otherwise allow.

            For any new major stationary source or major modification proposing to construct in any area in Colorado designated under section 107 (d) of the Federal Act as attainment or unclassifiable for any criteria pollutant as of the date of submittal of a complete application under this Regulation No. 3, or for pollutants implemented under section 110 of the Federal Act, the division shall grant a permit if it determines that the following requirements, in addition to those in section IV.D.1., have been or will be met:

            IV.D.3.a.(i) Control Technology Review.

            IV.D.3.a.(i)(A) A new major stationary source shall apply Best Available Control Technology for each pollutant regulated under the Act or Federal Act that it would have the potential to emit in significant amounts.

            IV.D.3.a.(i)(B) A major modification shall apply best available control technology for each pollutant regulated under the Act or Federal Act for which there would be a significant net emissions increase at the source. This requirement applies to each proposed emissions unit at which a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation of the unit.

            IV.D.3.a.(i)(C) For phased construction projects, the determination of best available control technology shall be reviewed and modified as appropriate for phases that commence construction more than 18 months after the initial granting of the permit. The review will be conducted in a timely manner that will allow the owner or operator to proceed with scheduled construction of the source. During the review, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of best available control technology for the source.

            IV.D.3.a.(ii) Source Impact Analysis. The owner or operator of the proposed source or modification shall demonstrate to the division that allowable emission increases from the proposed source or modification in conjunction with all other emissions increases or reductions (including secondary emissions) will not cause or contribute to concentrations of air pollutants in the ambient air in violation of:

            IV.D.3.a.(ii)(A) Any state or national ambient air quality standard in any baseline area or air quality control region; or IV.D.3.a.(ii)(B) Any applicable maximum allowable increase over the baseline concentration in any area.

            IV.D.3.a.(iii) Pre-construction Monitoring and Analysis IV.D.3.a.(iii)(A) An analysis of ambient air quality in any area that would be affected by the proposed major stationary source or major modification shall be performed for each pollutant regulated under the Act or Federal Act that the source or modification would emit or have the potential to emit in a significant amount, or for which there would be a significant net emissions increase. IV.D.3.a.(iii)(B) With respect to any such regulated pollutant for which no national ambient air quality standard exists and for which there is an acceptable method for the monitoring of that pollutant, the analysis shall contain such air quality monitoring data as the division determines are reasonably necessary to assess ambient air quality for that pollutant in any area that emissions of that pollutant would affect.

            IV.D.3.a.(iii)(C) With respect to any such pollutant for which a national ambient air quality standard does exist, the analysis shall contain continuous air quality monitoring data gathered for purposes of determining whether emissions of that pollutant would cause or contribute to a violation of the applicable standard or any maximum allowable increase.

            IV.D.3.a.(iii)(D) In general, the continuous air quality monitoring data that are required under section IV.D.3.a.(iii)(C), or the pre-application monitoring of air quality related values required by section X.B., shall have been gathered over a period of one year and shall represent the year preceding receipt of the application, except that the division may determine that a complete and adequate analysis can be accomplished with: (1) monitoring data gathered over a period shorter than one year (but not to be less than four months); or (2) the use of existing representative air quality data. When existing background ambient air levels of a pollutant are reasonably estimated to be small and a monitoring network would not reliably measure the predicted background concentrations, the division has the discretion to not require a source owner or operator to generate pre-construction monitoring data for that pollutant.

            IV.D.3.a.(iii)(E) The owner or operator of a proposed major stationary source or major modification of volatile organic compounds who satisfies all conditions of the Code of Federal Regulations Title 40, Part 51, Appendix S, Section IV., (but not including conditions resulting from amendments after July 1, 1991 and not including section IV.B., of Appendix S) may provide post-approval monitoring data for ozone in lieu of providing pre-construction data as required under section IV.D.3.a.(iii)(A). (Information on obtaining the Code of Federal Regulations Title 40, Part 51, Appendix S, Section IV. is available from the Director, Air Pollution Control Division, 4300 Cherry Creek Drive South, Denver, Colorado, 80246-1530.)

            IV.D.3.a.(iv) Post-Construction Monitoring. At its discretion, the division may require that the owner or operator of a major stationary source or major modification conduct post-construction ambient monitoring for a period up to one year. The division may also require additional monitoring beyond the one year period if such monitoring is necessary to determine the effect emissions from the stationary source or modification have, or may have, on air quality in any area. The monitoring of air quality related values or sensitive receptors required by section X.B., shall be for such time as is necessary to determine the effect emissions from the source or modification will have on the air quality related values or sensitive receptors.

            Post-construction monitoring requirements will be permit conditions. IV.D.3.a.(v) Operation of Monitoring Stations. The owner or operator of a major stationary source or major modification shall use the U.S. EPA accepted procedures for ambient monitoring as approved by the division during the operation of monitoring stations for purposes of satisfying the requirements of sections IV.D.3.a.(iii), and IV.D.3.a.(iv), above. IV.D.3.a.(vi) Additional Impact Analysis. For each pollutant that is regulated under the Act or the Federal Act, and for which the source or modification would emit or for which there would be a significant net emissions increase, the owner or operator shall provide an analysis of the impairment to visibility, water, soils, and vegetation that would occur as a result of the emissions of such pollutant from the source or modification and general commercial, residential, industrial, and other growth associated with the source or modification. The analysis of impairment to water will not be used in the determination of best available control technology. The owner or operator need not provide an analysis of the impact on vegetation having no significant commercial or recreational value. The additional impact analysis will include the effects on air quality related values as stated in section X.B., of this regulation, if applicable. The owner or operator shall 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 source or modification. IV.D.3.b. Applicability of Certain PSD Requirements.

            IV.D.3.b.(i) The requirements of section IV.D.3.a., Part B, do not apply to a major stationary source or major modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant: IV.D.3.b.(i)(A) The source or modification is subject to Part 3 of the Act and section IV.D.2., Part B, of this Regulation No. 3, and the source or modification would not impact any area designated as attainment or unclassifiable for that pollutant; or IV.D.3.b.(i)(B) Reserved IV.D.3.b.(i)(C) The emissions from the source or modification would not be significant; or IV.D.3.b.(i)(D) The source or modification is a portable stationary source that has previously received a permit under requirements equivalent to those contained in section IV.D.3.a., of this regulation, Part B, or the Code of Federal Regulations Title 40 Section 51.166(j) — (r) if:

            IV.D.3.b.(i)(D)(1) The source proposes to relocate and emissions of the source at the new location would be temporary;

            IV.D.3.b.(i)(D)(2) The emissions from the source would not exceed its allowable emissions;

            IV.D.3.b.(i)(D)(3) The emissions from the source would impact no Class I area and no area where an applicable increment is known to be violated; and IV.D.3.b.(i)(D)(4) Reasonable notice identifying the proposed new location and the probable duration of operation at the new location and a revised Air Pollutant Emission Notice is given to the division prior to the relocation. Such notice and revised Air Pollutant Emission Notice shall be given to the division not less than ten days in advance of the proposed relocation unless a different time duration is previously approved by the division. IV.D.3.b.(ii) The requirements contained in sections IV.D.3.a.(ii) — IV.D.3.a.(vi), do not apply:

            IV.D.3.b.(ii)(A) To a proposed major stationary source or major modification with respect to a particular pollutant, if the emissions would be from a temporary source, modification or activity, such as construction or exploration, and would not have an impact on air quality in any Class I area or an area where an applicable increment is known to be violated; or IV.D.3.b.(ii)(B) As they relate to any maximum allowable increase for a Class II area, to a modification of a major stationary source that was in existence on March 1, 1978, if the net increase in allowable emissions of each pollutant subject to regulation under the Act from the modification after the application of best available control technology would be less than fifty tons per year.

            IV.D.3.b.(iii) The division may exempt a proposed major stationary source or major modification from the requirements of sections IV.D.3.a.(iii) — IV.D.3.a.(v), with respect to monitoring for a particular pollutant if: IV.D.3.b.(iii)(A) The emissions of the pollutant from the new stationary source or the net emissions increase of the pollutant from the modification would cause air quality impacts, in any area, less than the following:

            IV.D.3.b.(iii)(A)(1) Carbon monoxide - 575 µg/m3, 8-hour average; IV.D.3.b.(iii)(A)(2) Nitrogen dioxide - 14 µg/m3, annual average; IV.D.3.b.(iii)(A)(3) Particulate Matter - 10 µg/m3 total suspended particulate matter, 24-hour average; PM - 10 µg/m3, 24-hour average;

            IV.D.3.b.(iii)(A)(4) Sulfur dioxide - 13 µg/m3, 24-hour average; IV.D.3.b.(iii)(A)(5) Lead - 0.1 µg/m3, 3-month average; IV.D.3.b.(iii)(A)(6) Mercury - 0.25 µg/m3, 24-hour average; IV.D.3.b.(iii)(A)(7) Beryllium - 0.001 µg/m3, 24-hour average; IV.D.3.b.(iii)(A)(8) Fluorides - 0.25 µg/m3, 24-hour average; IV.D.3.b.(iii)(A)(9) Vinyl chloride - 15 µg/m3, 24-hour average; IV.D.3.b.(iii)(A)(10) Total reduced sulfur - 10 µg/m3, 1-hour average; IV.D.3.b.(iii)(A)(11) Hydrogen sulfide - 0.2 µg/m3, 1-hour average; IV.D.3.b.(iii)(A)(12) Reduced sulfur compounds - 10 µg/m3, 1-hour average; or IV.D.3.b.(iii)(B) The existing concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in this section; or IV.D.3.b.(iii)(C) For ozone, the emissions increase or net emissions increase of volatile organic compounds from the source or modification would be less than 100 tons per year; or IV.D.3.b.(iii)(D) The pollutant is not referred to in this section. IV.D.3.b.(iv) The requirements of Part B, sections IV.C., and IV.D.3.a., Part A, section VIII., the definition of complete, Part B, section IX., and section X., shall apply at such time that any stationary source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation that was established after August 7, 1980, on the capacity of the source or modification to otherwise emit a pollutant such as a restriction on hours of operation. IV.D.3.b.(v) A stationary source or modification may apply the applicable maximum allowable increases for total suspended particulate matter as in effect on the date of the permit application, in meeting the requirements of section IV.D.3.a.(ii), if the following requirements are met:

            IV.D.3.b.(v)(A) The owner or operator of the source or modification submitted an application for a permit under Regulation No. 3 before the provisions for maximum allowable increases for PM took effect; and IV.D.3.b.(v)(B) The division determines that the application as submitted, before the date that the maximum allowable increases for PM took effect, was complete.

            IV.D.3.c. Notice to the U.S. EPA.

            The division shall transmit to the Administrator of the U. S. EPA a copy of each permit application relating to a major stationary source or major modification subject to this regulation, and provide notice of every action related to the consideration of such permit.

            IV.D.3.d. Major Sources in attainment areas affecting nonattainment area. IV.D.3.d.(i) For any new major stationary source or major modification that is proposed to be constructed in an area designated under section 107(d) of the Federal Act as attainment or unclassifiable for a particular pollutant and the emissions of such pollutant from which would significantly affect ambient air quality in an area designated as nonattainment for such pollutant, the division shall grant a permit if it determines that one or both of the following conditions, as well as those in sections IV.D.1., and IV.D.3.a., Part B, will be met:

            IV.D.3.d.(i)(A) The proposed source or modification will meet the requirements of Part B, sections IV.D.2.a.(i), and IV.D.2.a.(ii), and obtain sufficient emission reductions of such pollutant in the nonattainment area to offset that portion of its emissions of such pollutant that affect the nonattainment area. Offsets may be obtained from outside the nonattainment area as provided in section IV.D.2.a.(iii), Part B of this Regulation No. 3.; or IV.D.3.d.(i)(B) The proposed source or modification will achieve an emissions rate that will ensure that the emissions of such pollutant from the source or modification will not significantly affect ambient air quality in the nonattainment area.

            IV.D.3.d.(ii) Ambient air quality will be deemed to be significantly affected if, but for any offsets, the applicable significance level set forth in the following table would be exceeded in the nonattainment area.

TABLE OF SIGNIFICANCE LEVELS Pollutant Averaging Time Annual 24-Hour 8-Hour SO2

1. 1.0 µg/m
   1. 5 µg/m PM10
      1. 1.0 µg/m
         1. 5 µg/m TSP 3 3
         2. 1.0 µg/m 5 µg/m

      NO2

      1. 1.0 µg/m

      CO 3 500 µg/m IV.D.3.d.(iii) Any new major stationary source or major modification subject to this section that will emit or cause a net emissions increase in volatile organic compounds shall demonstrate to the satisfaction of the division that its emissions will not affect any ozone nonattainment area or shall obtain offsets as required in section IV.D.3.d.(i), above. IV.D.3.d.(iv) Emission offsets for PM , sulfur dioxide, and carbon monoxide, must show, through air quality modeling, a positive net air quality benefit in the portion of the nonattainment area affected by emissions from the proposed source or modification.

      1. IV.D.3.e. Minor stationary sources of volatile organic compounds, carbon monoxide, nitrogen oxides, sulfur dioxide and PM in designated attainment/maintenance areas.
         1. IV.D.3.e.(i) For minor sources located in designated attainment/maintenance areas, permits shall be issued if, in addition to determining that the source will meet the requirements of section IV.D.1., the division determines that Reasonably Available Control Technology will be applied for the pollutants for which the area was previously nonattainment. IV.D.3.e.(ii) In the Denver Metropolitan PM attainment/maintenance area, for any new minor source with a potential to emit 40 tons per year or more of nitrogen oxides or sulfur dioxide, or a modification of an existing minor source with a net emissions increase of 40 tons per year or more of nitrogen oxides or sulfur dioxide, the source will apply Reasonably Available Control Technology for the specific source category, as determined by the division on a case-by-case basis.

            IV.D.4. Negligibly Reactive Volatile Organic Compounds (NRVOCs) IV.D.4.a. The negligibly reactive volatile organic compounds referenced in the Common Provisions definition of negligibly reactive volatile organic compounds are considered to be of negligible photochemical reactivity and are neither counted as reactive volatile organic compounds in determining volatile organic compound emission contributions to an increase in ozone nor used as volatile organic compound emission offsets or other volatile organic compound emission trading credits against volatile organic compounds not listed in the common provisions negligibly reactive volatile organic compound definition. IV.D.4.b. Negligibly reactive volatile organic compounds may be substituted for volatile organic compounds and the resulting decrease in volatile organic compound emissions, if otherwise creditable, may be used for offset, banking or other emission trading credit.

IV.E. Permit Terms and Conditions The division shall include such terms and conditions in any permit as it deems necessary for the proposed project or activity to qualify for the permit. IV.F. Time Constraints on Division Action— Reserved.

IV.G. Denial or Revocation of the Construction Permit IV.G.1. If the division determines that a source cannot comply with the provisions of Part B, section IV.D., of this regulation, the division shall issue its written denial of the permit application stating the reasons for such denial. Any division denial of a permit shall become final upon mailing of the denial notice to the applicant by certified mail. The applicant may appeal the division's final denial of a permit as provided in section IV.G.3., below.

1. IV.G.2. Any applicant for a construction permit shall advise the division in writing of any refusal to accept any permit condition imposed by the division within twenty calendar days after receipt of the permit. Such refusal shall be deemed a denial of the permit application. IV.G.3. If the division denies a permit, imposes conditions upon a permit that are contested by the applicant, or the division revokes a permit, or the division requires a permit from a source that may qualify for an exemption, the applicant or owner or operator of a source may request a hearing before the commission for review of the division's action. The request for a hearing must be filed with the commission within thirty days after the issuance of the permit, denial or revocation. The hearing shall be heard in accordance with the provisions of section 1.6.0., of the commission's procedural rules, Colorado Revised Statute sections 25-7-114.5(8), and 25-7-119, (Colorado Air Pollution Prevention and Control Act) and section 24-4-105, (State Administrative Procedure Act). IV.G.4. Initial Approval Expiration IV.G.4.a. An initially approved permit shall expire if the owner or operator of the source for which the permit was issued: (i) does not commence construction or operation of the source within eighteen months after either the date of issuance of the permit or the date on which such construction or activity was scheduled to commence as set forth in the permit, whichever is later; (ii) discontinues construction for a period of eighteen months or more; or (iii) does not complete construction within a reasonable time of the estimated completion date. IV.G.4.b. Upon a showing of good cause by the permittee, the division may grant extensions of the permit not to exceed eighteen months per extension. Construction or operation shall commence or be resumed within a reasonable period of time from the granting of the extension. In determining what constitutes good cause or a reasonable period of time, the division shall consider the degree of construction already completed, the amount invested or legally committed to the project, whether an extension would prevent (e.g., through reservation of a Prevention Significant Deterioration increment) economic development in the affected area, general economic conditions, the health of the community as it affects the ability of the permittee to proceed, and other relevant factors. The division shall notify the commission of any requested extensions and the reason given for each request.
   1. IV.G.4.c. This section shall not apply to sources that have received an initially approved permit on or prior to the effective date of this regulation. IV.H. Final Permit Approval IV.H.1. Unless prior and mutually acceptable arrangements have been made, the applicant shall not commence the operation of a stationary source for which a construction permit has been issued or reinstated without giving notice to the division, thirty calendar days (fifteen calendar days for portable sources) prior to the date on which commencement will take place.
      1. IV.H.2. Within one hundred eighty calendar days after commencement of operation, the source shall demonstrate to the division compliance with the terms and conditions of the initial approval construction permit. The division may inspect the source to determine whether or not the operating terms and conditions of the initial approval construction permit have been satisfied. At the end of one hundred and eighty days, the division must revoke the construction permit; or, continue the construction permit if applicable; or, notify the owner or operator that the source has demonstrated compliance with the construction permit. IV.H.3. Before final approval of the permit is granted, the division may require the applicant to conduct and pay for performance tests in accordance with methods approved by the division. A test protocol shall be submitted to the division for review and approval at least thirty days prior to testing. The division may monitor such tests and may, at its expense, conduct its own performance tests.
         1. IV.H.4. For sources that submit an application for an operating permit pursuant to Part C of this Regulation No. 3, including any application for a permit modification or permit renewal, prior to issuance of a final approval construction permit, upon demonstration by the source of compliance with all terms and conditions of the construction permit or a satisfactory final approval inspection, as required pursuant to this section IV.H., the division may elect to either issue a final approval construction permit or allow the initial approval construction permit to continue in full force and effect. The division shall provide written notice to the permittee of its election.

            IV.H.5. If the division determines that the terms and conditions of the permit have been satisfied, the division shall issue in writing its final permit approval to the applicant, or shall incorporate the terms and conditions into an operating permit issued in accordance with Part C of this regulation. Otherwise, the division shall revoke the permit. IV.H.6. Reserved IV.H.7. Final approval may be issued at the same time as initial approval for temporary sources of a duration of one month or less.

            IV.H.8. Prior to issuance of final approval, the applicant shall furnish: IV.H.8.a. An operating and maintenance plan for all control equipment and control practices; and IV.H.8.b. A proposed record keeping format for demonstrating compliance on an ongoing basis.

IV.I. Permit Cancellation Whenever an owner or operator wishes to cancel a permit, the owner or operator shall notify the division, using forms provided by the division.

IV.J. General Construction Permits IV.J.1. The division may issue a general construction permit covering numerous similar sources to a source that would otherwise be required to obtain a construction permit pursuant to this Part B. Any general construction permit shall comply with all applicable requirements, including notice and opportunity for public participation where warranted for such sources. The division may issue a general construction permit in accordance with one or more of the following considerations:

1. IV.J.1.a. The control equipment utilized by the sources; IV.J.1.b. The design characteristics of the sources;
   1. IV.J.1.c. The operational variability of the sources;
      1. IV.J.1.d. The location of the sources.
         1. IV.J.2. A source shall not perform any of the following without first obtaining a valid general construction permit from the division pursuant to this provision, or a valid construction permit as otherwise required pursuant to section IV., of this Part B: IV.J.2.a. Commence construction or modify any building, facility, structure, or installation; IV.J.2.b. Install any machine, equipment, or other device; IV.J.2.c. Commence the conduct of any such activity;

            IV.J.2.d. Commence performance of any combinations thereof; or IV.J.2.e. Commence operations of any of the same that will or do constitute a new stationary source.

            IV.J.3. Administration IV.J.3.a. General construction permits may be issued, modified, revoked and reissued, or terminated in accordance with the provisions of this regulation. IV.J.3.b. Sources shall submit applications to be covered under the general construction permit on forms provided by the division.

            IV.J.3.c. Individual Permit Requirements IV.J.3.c.(i) The division may require any source authorized by a general construction permit to apply for and obtain an individual permit. Cases where an individual permit may be required include, but are not limited to, the following:

            IV.J.3.c.(i)(A) A change has occurred in the availability of control technology or practices for the control or abatement of air pollutants applicable to the source; or IV.J.3.c.(i)(B) Circumstances have changed since the time of the request to be covered so that the source is no longer appropriately controlled under the general construction permit.

            IV.J.3.c.(ii) Any source authorized by a general construction permit may request to be excluded from the coverage of the general construction permit by applying for an individual permit, as provided for under this regulation, Parts A and B.

            IV.J.3.c.(iii) When the division issues an individual permit to a source otherwise subject to a general construction permit, the applicability of the general construction permit to the individual permittee is automatically terminated on the effective date of the individual permit.

            IV.J.3.c.(iv) A source excluded from a general construction permit solely because it already has an individual permit may request that the individual permit be revoked, and that it be covered by the general construction permit. Upon revocation of the individual permit, the general construction permit shall apply to the source.

            IV.J.3.c.(v) In determining whether an individual permit is required, the division may consider the compliance history and current compliance status of the source.

            IV.J.4. The division shall review the application and certify or deny the request based on criteria specified in the general construction permit established by the division for that type of source.

            IV.J.5. General construction permits shall include conditions necessary to ensure the sources will meet all applicable requirements.

            IV.J.6. General construction permits issued by the division may include the following requirements, as appropriate and as specified in each permit: IV.J.6.a. An operating and maintenance plan for all control equipment and control practices;

            IV.J.6.b. A record keeping format for demonstrating compliance; IV.J.6.c. Monitoring methods to assure compliance; and IV.J.6.d. Alternative operating scenarios that include specific monitoring, record keeping, and reporting methods that will assure compliance with the permit conditions. IV.J.7. All general construction permits shall undergo statewide public notice. If a source wants to be covered under a general construction permit, the source must apply within the time period specified in the public notice.

V. AREA CLASSIFICATIONS V.A. The following areas in Colorado shall be Class I areas and may not be redesignated: V.A.1. National Parks V.A.1.a. Rocky Mountain V.A.1.b. Mesa Verde V.A.2. National Wilderness Areas V.A.2.a. Black Canyon of the Gunnison V.A.2.b. Eagle's Nest V.A.2.c. Flattops V.A.2.d. Great Sand Dunes V.A.2.e. La Garita V.A.2.f. Maroon Bells - Snowmass V.A.2.g. Mount Zirkel V.A.2.h. Rawah V.A.2.i. Weminuche V.A.2.j. West Elk V.B. All other areas of Colorado, unless otherwise specified by Act of Congress or the Colorado legislature, or the commission pursuant to section VI., are designated Class II; provided, however that in the following areas as they existed on August 7, 1977 (maps available from the division), the increase allowed in sulfur dioxide concentrations over the baseline concentration shall be the same as the increase established by section 163(b) of the Federal Act for Class I areas, except that such allowable increases may not be allowed if a Federal Land Manager should make an adverse impact determination under section X.C., with which the division concurs and except that such allowable increases may be exceeded by compliance with the provisions of sections X.D., X.E., or X.F.:

1. V.B.1. National Monuments V.B.1.a. Florissant Fossil Beds V.B.1.b. Colorado V.B.1.c. Dinosaur V.B.1.d. Great Sand Dunes (those portions not included as National Wilderness Areas in section V.A.2.)
   1. V.B.2. Forest Service Primitive Areas V.B.2.a. Uncompahgre Mountain V.B.2.b. Wilson Mountain V.B.3. Lands administered by the Federal Bureau of Land Management in the Gunnison Gorge Recreation Area as of October 27, 1977. All areas designated Class II under this section may be redesignated as provided in section VI., of this Regulation No. 3, Part B. V.B.4. National Parks Black Canyon of the Gunnison (those portions not included as National Wilderness Areas in section V.A.2.)

V.C. The following areas may be redesignated only as Class I or II. V.C.1. An area that, exceeds ten thousand acres in size and is a national monument, a national primitive area, a national preserve, a national recreational area, a national wild and scenic river, a national wildlife refuge, a national lakeshore; and V.C.2. A national park or national wilderness area established after August 7, 1977, that exceeds ten thousand acres in size.

V.D. The commission recognizes out of state Class I areas that have been listed in the Federal Register (44FR69124). Emissions from sources in Colorado shall not violate any standard in these areas.

VI. REDESIGNATION VI.A. Except as provided otherwise in this section or section V., of Part B of this Regulation No. 3, the commission may redesignate any area in Colorado as Class I, Class II or Class III as herein provided. The commission will provide notice to the General Purpose Unit of local government in an area where the maximum allowable increase is being approached. VI.B. The commission shall review and consider a request for redesignation by any person. VI.C. The commission shall not set a hearing date on a proposed redesignation until the following have been completed:

1. VI.C.1. A complete description of the area proposed for redesignation; VI.C.2. A detailed statement of the circumstances that support the proposed redesignation; VI.C.3. A prediction of the costs and benefits for the affected population from the proposed redesignation;
   1. VI.C.4. A technical analysis of expected impacts on ambient air quality in adjacent or nearby areas;
      1. VI.C.5. Comments, or evidence of an opportunity for submission of comments, by all appropriate regional planning agencies and councils of government organizations, affected municipalities and other affected political subdivisions; and VI.C.6. An analysis of the relationship of the proposed redesignation with applicable county or regional development plans, including but not limited to, comprehensive area wide plans and 208 water quality plans.

VI.D. The commission shall provide sixty day notice prior to a public hearing, including notice to other states, Indian governing bodies and Federal Land Managers whose lands may be affected by a proposed redesignation, of any proposed redesignation, and conduct public hearings on such proposed redesignation in or near areas within Colorado that may be affected by such proposed redesignation, including at least one public hearing within or as near as is practicable to the area to be redesignated. At least thirty days prior to any such public hearings, the commission shall make available for public inspection a discussion of the reasons for the proposed redesignation, including a satisfactory description and analysis of the health, environmental, economic, societal and energy effects of the proposed redesignation. The notice announcing any public hearings shall contain appropriate notification of the availability of such discussion. VI.E. Prior to the issuance of notice respecting the proposed redesignation of an area that includes any federal lands, the commission shall provide written notice to the appropriate Federal Land Manager and afford adequate opportunity (not in excess of sixty days) to confer with the commission respecting the notice of proposed redesignation and to submit written comments and recommendations with respect to such notice of proposed redesignation. In redesignating any area with respect to which any Federal Land Manager had submitted written comments and recommendations, the commission shall publish a list of any inconsistency between such redesignation and such comments and recommendations and an explanation of such inconsistency (together with the reasons for making such redesignation against the recommendation of the Federal Land Manager).

VI.F. All redesignations, except any established by an Indian governing body, shall be specifically approved; (1) by the governor, after consultation with the appropriate committees of the legislature, if it is in session, or with the leadership of the legislature, if it is not in session, and (2) by resolutions or ordinances enacted by the general purpose units of local government representing a majority of the residents of the area to be redesignated. VI.G. No area may be redesignated if such redesignation would cause or contribute to concentrations of any air pollutant in any other area that exceed any maximum allowable increase or maximum allowable concentration permitted under the classification of such area. VI.H. Lands within the exterior boundaries of reservations of federally recognized Indian tribes may be redesignated only by the appropriate Indian governing body. VI.I. Any redesignation shall constitute a revision to the Colorado State Implementation Plan and shall be submitted for approval to the Administrator of the U.S. EPA. VI.J. Any redesignation or denial of a proper request for redesignation made pursuant to this section VI., shall be subject to judicial review in accord with Colorado Revised Statute section 25-7-120. VI.K. Any area other than an area to which V.A., or V.C., refers to may be redesignated as Class III if any major stationary source or major modification could receive a permit only if the area in question were redesignated as Class III, and any material submitted as part of that application were available, insofar as was practicable, for public inspection prior to any public hearing on redesignation of any area as Class III.

VII. AIR QUALITY LIMITATIONS VII.A. Ambient Air Increments VII.A.1. The maximum allowable increases over the baseline concentration for sulfur dioxide, PM , or nitrogen dioxide except as provided in section V.B., of this Regulation No. 3, Part B, are:

1. VII.A.1.a. For any Class I area:
   1. PM10 (µg/m )

      Annual arithmetic mean 4 Twenty-four hour 8 maximum Sulfur dioxide (µg/m )

      Annual arithmetic mean 2 Twenty-four hour 5 maximum Three hour maximum 25 Nitrogen dioxide (µg/m )

      Annual arithmetic mean 2.5 VII.A.1.b. For any Class II area:

      PM10 (µg/m )

      Annual arithmetic mean 17 Twenty-four hour 30 maximum Sulfur dioxide (µg/m )

      Annual arithmetic mean 20 Twenty-four hour 91 maximum Three hour maximum 512 Nitrogen dioxide (µg/m )

      Annual arithmetic mean 25 VII.A.1.c. For any Class III area:

      PM10 (µg/m )

      Annual arithmetic mean 34 Twenty-four hour 60 maximum Sulfur dioxide (µg/m )

      Annual arithmetic mean 40 Twenty-four hour 182 maximum Three hour maximum 700 Nitrogen dioxide (µg/m )

      Annual arithmetic mean 50 VII.A.2. The maximum allowable increases over the baseline concentration for any other air pollutant shall be the same as those increases established pursuant to section 166(a) of the Federal Act.

      1. VII.A.3. For any period but an annual period, the applicable maximum allowable increase may be exceeded during one such period per year at any one location. VII.A.4. Periodic Review VII.A.4.a. The division shall, on a periodic basis, review the adequacy of this Regulation No. 3 for preventing significant deterioration of air quality. Within thirty days after any information becomes available and there is cause to believe that an applicable increment is being violated, the division shall present the cause for such belief to the commission.
         1. VII.A.4.b. If the commission concurs that there is cause to believe that an increment is being violated, it shall hold a hearing to determine whether an increment violation exists. The hearing shall be held pursuant to the procedures of Colorado Revised Statute section 25-7-119. Notice should be given by first class mail to permitted sources that can be reasonably identified as emitting the pollutant in violation and affecting the area of violation.

            VII.A.4.c. Should the commission determine that an increment violation exists, the division shall review all sources affecting the area of increment violation and ensure that all such sources are in compliance with all applicable permit conditions and state and local regulations. Within thirty days after completing such a review, the division shall recommend revisions, if necessary, to the commission to correct the violation. Upon receipt of recommended revisions from the division, the commission shall as soon as practicable act to revise this regulation as it deems necessary.

            VII.A.5. Increment Consumption Restriction VII.A.5.a. No new major stationary source or major modification shall individually consume more than seventy-five percent of an applicable increment. VII.A.5.a.(i) Applicants may request a hearing before the commission to request a waiver of this restriction. The hearing shall be heard in accordance with the provisions of Colorado Revised Statute sections 25-7-114(4)(h), 25- 7-119 (Colorado Air Pollution Prevention and Control Act), and Colorado Revised Statute 24-4-105 (State Administrative Procedure Act). VII.A.5.a.(i)(A) The commission shall not set a hearing date for a waiver request until submittal of comments, or evidence of an opportunity for submittal of comments by all appropriate regional planning agencies and councils of government organizations, affected municipalities and other affected political subdivisions has occurred.

            VII.A.5.a.(i)(B) Ambient Air Limits. No concentrations of a pollutant shall exceed a national ambient air quality standard or a state ambient air standard where no national ambient air quality standard has been established.

VIII. EXCLUSIONS FROM INCREMENT CONSUMPTION VIII.A. The following concentrations are excluded in determining compliance with a maximum allowable increase:

1. VIII.A.1. Concentrations attributable to the increase in emissions from stationary sources that have converted from the use of petroleum products, natural gas, or both by an order in effect under sections 2(a) and (b) of the Federal “Energy Supply and Environmental Coordination Act of 1974” (or any superseding legislation) over the emissions from such sources before the effective date of such an order, but not more than five years after the effective date of such an order.
   1. VIII.A.2. Concentrations attributable to the increase in emissions from sources that have converted from using natural gas by reason of a natural gas curtailment plan in effect pursuant to the Federal “Power Act” over the emissions from such sources before the effective date of such plan, but not more than five years after the effective date of the plan.
      1. VIII.A.3. Concentrations of particulate matter attributable to an increase in emissions from a temporary source, modification, or activity.
         1. VIII.A.4. Reserved VIII.A.5. Concentrations attributable to the temporary increase in emissions of sulfur dioxide, particulate matter, or nitrogen oxides from stationary sources that are affected by revisions of the Colorado State Implementation Plan that are approved by the Administrator of the U.S. EPA and that provide:

            VIII.A.5.a. The time period of such temporary increase in emissions is not renewable and may not exceed two years in duration, unless a longer time is approved by the division and the U.S. EPA;

            VIII.A.5.b. Such temporary increase in emissions shall not impact a Class I area or an area where an applicable increment is known to be violated or cause or contribute to the violation of a national ambient air quality standard; and VIII.A.5.c. Emission limitations shall be in effect at the end of the time period specified in the plan revision that will ensure that the emissions levels from stationary sources affected by the plan revision will not exceed those levels occurring from such sources before the plan revision was approved by the U.S. EPA.

IX. INNOVATIVE CONTROL TECHNOLOGY IX.A. An owner or operator of a proposed major stationary source or major modification otherwise subject to the requirements of Part B, section IV.D.3., of this Regulation No. 3 may request the division to grant a waiver from the Best Available Control Technology requirements and to approve a system of innovative control technology, in order to encourage the use of such technology. IX.B. The division or the commission may, with the consent of the governor(s) of other affected states, grant a waiver from the Best Available Control Technology requirements of Part B, section IV.D.3.a.(i), of this regulation necessary for the employment of innovative control technology and determine that the source or modification may employ such system if: IX.B.1. The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function; IX.B.2. The owner or operator agrees to achieve a level of continuous emissions reduction greater than or equivalent to that that would have been required under section IV.D.3.a. (i), by a date specified by the division. Such date shall not be later than four years from the time of startup or seven years from permit issuance; IX.B.3. The source or modification would meet the requirements of sections IV.D.3.a.(i), and IV.D.3.a.(ii), based on the emissions rate that the stationary source employing the system of innovative control technology would be required to meet on the date specified by the division;

1. IX.B.4. The source or modification would not, before the date specified by the division under section IX.B.2., above:
   1. IX.B.4.a. Cause or contribute to any violation of an applicable national ambient air quality standard; or IX.B.4.a.(i) Impact any area where an applicable increment is known to be violated;
      1. IX.B.5. All other applicable requirements including those for public participation have been met; and IX.B.6. The provisions of section V., of this regulation (relating to Class I areas) have been satisfied with respect to all periods during the life of the source or modification. IX.C. The division shall withdraw any approval to employ a system of innovative control technology made under this section, if:
         1. IX.C.1. The proposed system fails by the specified date to achieve the required continuous emissions reduction rate; or IX.C.2. The proposed system fails before the specified date so as to contribute to an unreasonable risk to public health, welfare, or safety; or IX.C.3. The division decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety. IX.D. If a source or modification fails to meet the required level of continuous emissions reduction within the specified time period, or if the approval is withdrawn in accordance with section IX.C., above, the division may allow the source or modification up to an additional three years to meet the requirement for the application of best available control technology through use of a demonstrated system of control.

X. FEDERAL CLASS I AREAS X.A. Within twenty days of receipt of a permit application for a new major stationary source or major modification that may affect visibility or air quality related values in any Federal Class I area, the division shall transmit a copy of the application to all affected Federal Land Managers and consult with them as to its completeness in its analysis and monitoring (if required) of air quality related values. If the division receives advance notification of a permit application of a source that may affect visibility or air quality related values, it will notify all affected Federal Land Managers within thirty days of such notification. The division will consider any analysis performed by a Federal Land Manager that indicates there will be an adverse impact on visibility or air quality related values if such analysis is received within thirty days after the Federal Land Manager receives a copy of the complete application. If the division disagrees with the Federal Land Manager, any notices for public comment or of a public hearing on the application will explain the disagreement or state where the explanation can be obtained.

X.B. In addition to the general impact analysis required by Part B, section IV.D.3.a.(vi), any source that will have or is likely to have an impact on any designated Class I area may be required to conduct monitoring to establish the condition of and impact on air quality related values in such Class I area(s) both prior to completing an application for a permit to construct and during the construction and operation of such source.

1. X.B.1. If monitoring is required, the source shall conduct a private monitoring program. However, if monitoring is being conducted by any other existing source or government agency, the new source may enter into a joint monitoring program with that source or agency. All monitoring programs must be approved in advance by the division. X.B.2. Pre-application monitoring may include the monitoring of not more than three air quality related values or sensitive receptors of air quality related values specified by the division after consultation with the Federal Land Manager. The air quality related values or sensitive receptor(s) selected must be important to the affected Class 1 area, and there must be cause to believe that monitoring of the air quality related values or sensitive receptors will provide a basis for evaluating effects to the relevant air quality related values.
   1. X.B.3. Monitoring during construction and operation may only be required for the sensitive receptors specified for pre-application monitoring, unless new information becomes available that demonstrates a significant economic or technological advantage of monitoring a different sensitive receptor, and it is acceptable to the source owner or operator.
      1. X.B.4. Monitoring of air quality related values or sensitive receptors of air quality related values may only be required if:
         1. X.B.4.a. Monitoring methods are reasonably available and research and development of monitoring methods are unnecessary;

            X.B.4.b. The major effect on the air quality related values or sensitive receptor would reasonably be predicted to be a result of the applicant's individual emissions or of the applicant's emissions in combination with any person's emissions with whom the applicant may be required to conduct joint monitoring; and X.B.4.c. It is economically reasonable for the source to conduct such monitoring. X.C. Sources Impacting Federal Class I Area - Additional Requirements. Federal Land Managers may present to the division, after its preliminary analysis required under section IV.B., of this Regulation No. 3, Part B, a demonstration that the emissions from the proposed source or modification would have an adverse impact on the air quality related values (including visibility) of any federal mandatory Class I lands, notwithstanding that the change in air quality resulting from emissions from such source or modification would not cause or contribute to concentrations that would exceed the maximum allowable increases for a Class I area. If the division concurs with such demonstration, or in the event the Federal Land Manager fails to perform an adverse impact analysis and the division determines that there is an adverse impact on visibility, or the division determines that a demonstration of no adverse impact is in error, the division shall not issue the permit.

X.D. Class I Variances. The owner or operator of a proposed major stationary source or major modification may demonstrate to the satisfaction of the Federal Land Manager that the emissions from such source or modification would not have an adverse impact on the air quality related values (including visibility) of Class I lands under the Federal Land Manager's jurisdiction, notwithstanding that the change in air quality resulting from emissions from such source or modification would cause or contribute to concentrations that would exceed the maximum allowable increases for a Class I area. If the Federal Land Manager concurs with such demonstration and so certifies to the division, the division or the commission may, provided that applicable requirements are otherwise met, issue the permit with such emission limitations as may be necessary to assure that emissions of sulfur dioxide, and PM , and nitrogen oxides would not exceed the following maximum allowable increases over the minor source baseline concentration for such pollutants.

1. Maximum allowable increase Particulate matter PM10, Annual arithmetic 17 µg/m mean PM10, Twenty-four hour 30 µg/m maximum Sulfur dioxide Annual arithmetic mean 3 20 µg/m Twenty-four hour 3 91 µg/m maximum Three hour maximum 3 325 µg/m Nitrogen dioxide Annual arithmetic mean 3 25 µg/m X.E. Sulfur Dioxide Variance by Governor X.E.1. The owner or operator of a proposed major stationary source or major modification that cannot be approved under section X.D., above, may demonstrate to the governor that the source or modification cannot be constructed by reason of any maximum allowable increase for sulfur dioxide for periods of twenty-four hours or less, applicable to any Class I area and, in the case of the federal mandatory Class I areas, that a variance under this section would not have an adverse affect on the air quality related values of the area (including visibility).
   1. X.E.2. The governor, after consideration of the Federal Land Manager's recommendation (if any) and subject to his concurrence, may grant, after notice and an opportunity for a public hearing, a variance from such maximum allowable increase. X.E.3. If such variance is granted, the division may issue a permit to such source or modification in accordance with section X.G., below, provided that the applicable requirements of Regulation No. 3 are otherwise met.

X.F. Variance by the Governor with the President's Concurrence X.F.1. The recommendations of the governor and the Federal Land Manager shall be transferred to the president in any case where the governor recommends a variance with which the Federal Land Manager does not concur.

1. X.F.2. If the president approves the variance, the division may issue a permit in accordance with section X.G., below, provided that the applicable requirements of Regulation No. 3 are otherwise met.

X.G. Emission Limitations for Presidential and Gubernatorial Variance. In the case of a permit to be issued under sections X.E., and X.F., the source or modification shall comply with emission limitations as may be necessary to assure that emissions of sulfur dioxide from the source or modification would not (during any day on that the otherwise applicable maximum allowable increases are exceeded) cause or contribute to concentrations that would exceed the following maximum allowable increases over the baseline concentration assure that such emissions would not cause or contribute to concentrations that exceed the otherwise applicable maximum allowable increases for periods of exposure of twenty-four hours or less for more than eighteen days, not necessarily consecutive, during any annual period: Maximum Allowable Increase (µg/m )

1. Period of Exposure Terrain Areas Low High 24-hour maximum 36 62 3-hour maximum 130 221

XI. VISIBILITY XI.A. Purpose This section assures reasonable progress towards the national goal of preventing future, and remedying existing, visibility impairment in Class I areas, where such impairment results from man-made air pollution.

XI.B. Applicability This section applies to all Class I areas and to sources in Colorado the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility in any such area (even if the area is in another state).

XI.C. Definitions For purposes of this section XI.:

1. XI.C.1. Adverse impact on visibility means for the purpose of section XI.E., visibility impairment that interferes with the management, protection, preservation, or enjoyment of the visitor's visual experience of the Class I area. Any determination shall be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of visibility impairments, and how these factors correlate with times of visitor use of the Class I area, and the frequency and timing of natural conditions that reduce visibility.
   1. XI.C.2. Best Available Retrofit Technology means an emission limitation achievable through the application of the best system of continuous emission reduction for each pollutant that is emitted by an existing stationary facility. The emission limitation shall be established on a case-by-case basis taking into consideration the technology available, the costs of compliance, the energy and non-air quality environmental impacts of compliance, any pollution control equipment in use or in existence at the source, the remaining useful life of the source, and the degree of improvement in visibility that may reasonably be anticipated to result from the use of such technology.
      1. XI.C.3. Existing stationary facility means any of the stationary sources of air pollutants listed in section I.B.59., definition of major stationary source, section I.B.59.e.(i), in Part A of this Regulation, including any reconstructed source, that was not in operation prior to August 7, 1962, and had commenced construction on or before August 7, 1977, and has the potential to emit two hundred and fifty tons per year or more of any air pollutant. In determining potential to emit, fugitive emissions, to the extent quantifiable shall be counted.
         1. XI.C.4. Long-term strategy means a ten to fifteen year plan for making reasonable progress toward the national goal specified in XI.A.

            XI.C.5. Natural conditions includes naturally occurring phenomena that reduce visibility as measured in terms of visual range, contrast, or coloration. XI.C.6. Reasonably attributable means attributable by visual observation or any other technique the state deems appropriate.

            XI.C.7. Significant impairment means, for purposes of section XI.D.2.c., visibility impairment, that interferes with the management, protection, preservation or enjoyment of the visitor's visual experience of the Class I area.

            XI.C.8. Visibility impairment means any humanly perceptible change in visibility (visual range, contrast, coloration) that would have existed under natural conditions. XI.C.9. Class I area means an area listed in section V.A., Part B, of this regulation and any area that may be redesignated to Class I in the future.

XI.D. Existing Impairment XI.D.1. The Federal Land Manager or the division may, at any time, certify to the division director that visibility impairment exists in any Class I area. The division may also certify that visibility impairment exists in any Class I area without the concurrence of the Federal Land Manager.

1. XI.D.2. Each existing stationary facility located in Colorado to which the cause of or contribution to visibility impairment in any Class I area is reasonably attributable, shall apply for and obtain from the division a permit that requires the installation and operation of Best Available Retrofit Technology. The facility shall install and operate Best Available Retrofit Technology as expeditiously as practicable but in no case later than five years after permit issuance.
   1. XI.D.2.a. For fossil-fuel fired generating plants having a total generating capacity in excess of 750 megawatts, Best Available Retrofit Technology shall be determined pursuant to “Guidelines for Determining Best Available Retrofit Technology for Coal-fired Power Plants and Other Existing Stationary Facilities” (U.S. EPA Publication No. 450/3-80-009b, 1980), and state of the art information available at the time of Best Available Retrofit Technology analysis. Pursuant to Colorado Revised Statute section 24-4-103 (12.5), the document referenced in this section is available for public inspection during normal working hours, or copies are available for cost, from the technical secretary of the commission, 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530. This Regulation No. 3 does not include later amendments to or editions of the referenced documents. XI.D.2.b. Should technological or economic limitations make the application of Best Available Retrofit Technology as previously defined infeasible, the state may instead prescribe a design, equipment, work practice, or other operational standard, or combination thereof, as representing Best Available Retrofit Technology. Where a facility is subject to section XI.D.2.a., due to technological limitations, the facility shall install and operate Best Available Retrofit Technology as previously defined when new technology for control of the pollutant becomes reasonably available provided: (1) the pollutant is emitted by the existing facility;
      1. (2) controls representing Best Available Retrofit Technology for the pollutant have not previously been required under this section; and (3) the impairment of visibility in any Class I area is reasonably attributable to the emissions of that pollutant.
         1. XI.D.2.c. Any existing stationary facility required to install and operate Best Available Retrofit Technology under this section may apply to the division and the U.S. EPA Administrator for an exemption.

            XI.D.2.c.(i) An application under this section must include all available documentation relevant to the impact of the source's emissions on visibility in any Class I area and a demonstration by the existing stationary facility that it does not or will not by itself or in combination with other sources, emit any air pollutant that may be reasonably anticipated to cause or contribute to a significant impairment of visibility in any Class I area.

            XI.D.2.c.(ii) Any fossil fuel fired power plant with a total generating capacity of 750 megawatts or more may receive an exemption from Best Available Retrofit Technology only if the owner or operator of such power plant demonstrates to the satisfaction of the division that such power plant is located at such a distance from all Class I areas that such power plant does not or will not by itself or in combination with other sources emit any air pollutant that may reasonably be anticipated to cause or contribute to significant impairment of visibility in any such Class I area. XI.D.2.c.(iii) The existing stationary facility must give prior written notice to all affected Federal Land Managers of any application for exemption. XI.D.2.c.(iv) The Federal Land Manager may provide an initial recommendation or comment on the disposition of such application. Such recommendation, where provided, must be part of the exemption application. This recommendation is not to be construed as the concurrence required under section XI.D.2.c.(vi).

            XI.D.2.c.(v) After notice and opportunity for public hearing, before the commission the division may grant or deny the exemption. XI.D.2.c.(vi) An exemption granted by the division under this section will be effective only upon concurrence by all affected Federal Land Managers. XI.D.2.c.(vii) Any determination shall be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of the visibility impairment, and how these factors correlate with time of visitor use of the Class I area, and the frequency and timing of natural conditions that reduce visibility.

            XI.D.2.d. The division shall process any application for a permit required by section XI.D.2., above, or any application for exemption under section XI.D.2.b., of this section according to the time constraints stated in Part B, section IV.B., of this regulation. All applications for permits or exemptions will be subject to public notice and public hearing requirements applicable to sources subject to the provisions of Part B, section IV.D.3. Processing fees will be charged to the applicant to recover actual costs incurred by the division as stated in section VI., Part A, of Regulation No. 3.

XI.E. New Source Review Applicants for new major stationary sources and major modifications shall demonstrate that the proposed source will not have an adverse impact on visibility in a Class I area as required by Part B, sections IV.D.2.a.(vi), IV.D.3.a.(vi), and X., of this regulation. XI.F. Long-term Strategy XI.F.1. The commission shall review and revise, if appropriate, the long-term strategy every three years.

1. XI.F.1.a. During the long-term strategy development and review process, the commission shall consult with the Federal Land Managers.
   1. XI.F.1.b. A public hearing shall be held upon request of any interested person. The state shall provide written notification to each affected Federal Land Manager and other affected states at least sixty days prior to holding any public hearing. XI.F.1.c. The division shall prepare a report for the commission on any progress made toward the national visibility goal since the last long-term strategy revisions. The report will be made available on September 1, at least every third year following the submittal of the previous report. The report shall include an assessment of: XI.F.1.c.(i) The progress achieved in remedying existing impairment of visibility in any Class I area;
      1. XI.F.1.c.(ii) The ability of the long-term strategy to prevent future impairment of visibility in any Class I area;
         1. XI.F.1.c.(iii) Any change in visibility since the last such report, or in the case of the first report, since plan approval, including an assessment of existing conditions;

            XI.F.1.c.(iv) Additional measures, including the need for State Implementation Plan evisions, that may be necessary to assure reasonable progress toward the national visibility goal;

            XI.F.1.c.(v) The progress achieved in implementing Best Available Retrofit Technology and meeting other schedules set forth in the long term strategy;

            XI.F.1.c.(vi) The impact of any exemption granted under section XI.D.2.c.; and, XI.F.1.c.(vii) The need for Best Available Retrofit Technology to remedy existing impairment in an integral vista declared since plan approval. XI.G. Public Land Emission Inventories XI.G.1. Federal Public Lands XI.G.1.a. For the purposes of this section XI.G., federal land management agency means a federal agency that owns and manages at least 50,000 acres of federal land in Colorado.

            XI.G.1.b. Federal land management agencies shall submit to the commission emission inventories by December 31, 2001 and no less frequently than every five years thereafter. The initial submittal in December 31, 2001 may be supplemented with additional information toward fulfilling the requirements of this section XI.G. Any supplementary submittal must be to the commission by July 1, 2002. XI.G.1.c. The inventory shall include the sources listed in section XI.G.3.b. of this regulation and emissions of criteria pollutants, including surrogates or precursors for such pollutants, from activities in Colorado or other states that may affect any mandatory Class I federal area in Colorado by reducing visibility in such area. XI.G.2. Colorado State Public Lands XI.G.2.a. The division shall submit to the commission emission inventories for all state land management agencies including the State Land Board, the Department of Agriculture, and the Department of Natural Resources by July 1, 2002 and no less frequently than every five years thereafter.

            XI.G.2.b. The inventory shall include the sources listed in section XI.G.3.b. of this regulation and emissions of criteria pollutants, including surrogates or precursors for such pollutants, from activities in Colorado that may affect any mandatory Class I federal area in Colorado by reducing visibility in such area. XI.G.3. Public Land Emission Inventory Requirements XI.G.3.a. The inventory shall include both current emissions and projected future emissions, over at least a five-year period.

            XI.G.3.b. The following sources on public lands shall be included in the inventory: XI.G.3.b.(i) Stationary source emissions, based on existing air pollution emission notices filed with the division;

            XI.G.3.b.(ii) Mobile sources utilizing state lands, excluding state and federal highways;

            XI.G.3.b.(iii) Paved and unpaved roads;

            XI.G.3.b.(iv) Fires on public lands from all sources; and XI.G.3.b.(v) Biogenic sources, including emissions from flora and fauna. XI.G.4. Public Hearings Not later than December 31, 2002, and no less frequently than every five years thereafter, a public hearing before the commission shall be conducted to approve the public land emission inventories.

PART C CONCERNING OPERATING PERMITS I. APPLICABILITY The provisions of this Regulation No. 3, Part C shall apply statewide to all sources of air pollutants that are required to obtain an operating permit as specified in section II. The provisions of this Part C shall also apply, except as otherwise provided herein, to those minor sources of air pollutants that voluntarily choose to obtain an operating permit.

II. GENERAL REQUIREMENTS FOR OPERATING PERMITS II.A. General Considerations II.A.1. Except where specifically authorized by the terms of this Regulation No. 3, Part C, no person shall operate any of the following sources without first obtaining an operating permit in accordance with the provisions of this regulation. II.A.1.a. Any affected source;

1. II.A.1.b. Any major source; with the exception of those sources that would be major based only on total suspended particulates emissions II.A.1.c. Any source required to have a permit pursuant to the prevention of significant deterioration program of Part C, Title I, of the Federal Act; II.A.1.d. Any source required to have a permit pursuant to the program for the attainment and maintenance of national ambient air quality standards or Part D, of Title I, of the Federal Act; and II.A.1.e. Any solid waste incineration unit that is a distinct operating unit of any facility that combusts any solid waste material from commercial or industrial establishments or the general public (including single residences, hotels, and motels). Such term does not include: (1) incinerators or other units required to have a permit under United States Code Title, 42, Section 6925 of the Solid Waste Disposal Act; (2) materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals; (3) qualifying small power production facilities, as defined in United States Code Title 16, Section 769(17)(C), or qualifying cogeneration facilities, as defined in United States Code Title 16, Section 796(18)(B), of the Federal Power Act, that burn homogenous waste for the production of electric energy or in the case of qualifying cogeneration facilities that burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) that are used for industrial, commercial, heating, or cooling purposes; or (4) air curtain incinerators provided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with any applicable opacity limitations. Operating permits for solid waste incineration units shall be obtained within thirty-six months of promulgation of a new source performance standard applicable to such units, or by November 15, 1994, whichever is later.
   1. II.A.1.f. Any source designated by the Administrator and the commission as requiring an operating permit.
      1. II.A.1.g. A source is not required to obtain an operating permit solely because it is subject to regulation or requirements pursuant to section 112(r) of the Federal Act. II.A.2. Any construction permit that has been issued pursuant to Regulation No. 3, Part B, with respect to a source that is subject to the operating permit requirements of this Part C, shall continue in full force and effect until such time as the operating permit is issued for such source, if the source has filed a timely and complete operating permit application. If a complete operating permit application has been timely filed with the division by the source in accordance with the provisions of section III., below, the source will not be subject to an enforcement action for operating the source without an operating permit. No source subject to an operating permit may operate after the time it is required to file a timely and complete application except in compliance with a previously issued operating permit and as set forth in section II.B., below. A previously issued construction permit shall not constitute a defense for operating a source in violation of the requirement to have an operating permit.
         1. II.A.3. Any orders or decisions of the division shall be final upon issuance. II.B. Application Shield A timely and complete application for an operating permit under the provisions of this Part C shall operate as a defense to an enforcement action for the source's failure to have an operating permit until the division or the commission makes a final determination on the permit application. This defense to an enforcement action shall not apply if, subsequent to the completeness determination required by section IV.B.1., of this Part C, the applicant fails to submit by the deadline specified in writing by the division any additional information identified as necessary to process the application, or to otherwise supplement its application in accordance with the provisions of section IV.B.3., and IV.B.4., of this Part C. This defense to an enforcement action shall not be available to an applicant that files a fraudulent application. Permit expiration terminates the source's right to operate unless a timely and complete renewal application has been submitted to the division.

II.C. Transfer or assignment of ownership If transfer or assignment of ownership or operation of an air pollution emission source permitted pursuant to the operating permit requirements of this Part C of Regulation No. 3 is anticipated, the prospective owner or operator shall apply to the division, on division supplied administrative permit amendment forms, for reissuance of the existing permit. Part A, section III., governs the administrative permit amendment procedures required for transfer or assignment of ownership of a source subject to the operating permit requirements. No administrative permit amendment shall be complete until a written agreement containing a specific date for transfer of permit, responsibility, coverage, and liability between the current and new permittee has been submitted to the division.

II.D. Portable Sources A portable source that conducts the same or similar type activity at multiple temporary locations throughout the state may be issued a single operating permit under this Part C, provided that the operation involves at least one change in location of the source during the five year permit term. Portable sources must notify the division at least ten days in advance of each change in location. The owner or operator of a portable source must demonstrate that all applicable requirements will be met at all locations at which the source will operate before an operating permit authorizing operations at the multiple locations will be issued. Sources subject to the acid rain provisions of Title IV of the Federal Act shall not constitute portable sources. II.E. Insignificant Activities and Exemptions from Operating Permit Requirements Sources that are otherwise required to obtain an operating permit are not required to include insignificant activities from the following list in their operating permit applications, except as otherwise provided below.

1. None of the exemptions listed below, including emission de minimis levels, shall apply if by taking such exemption a source would avoid any specific federal or state applicable requirement, including, but not limited to, New Source Performance Standards, Regulation No. 7, Prevention of Significant Deterioration (section IV.D.3., Part B of this Regulation No. 3), nonattainment New Source Review requirements (section IV.D.2.a., of Part B of this Regulation No. 3), Title III (including National Emission Standards for Hazardous Air Pollutants, Title V, and Colorado Maximum Achievable Control Technology or Generally Available Control Technology. (If the potential to emit, taking into account full design rate and continuous operation, triggers Prevention of Significant Deterioration or New Source Review requirements, the source must submit an Air Pollutant Emission Notice and apply for the appropriate permit, or must apply for a permit to limit the physical or operational capacity of the source such that the source is not considered to be a major source as defined in section I.B.59., of Part A of this regulation.). Sources otherwise required to obtain an operating permit are required to include a list of insignificant activities in their permit applications if the insignificant activities are listed in sections II.E.1., and II.E.2., or marked with an asterisk in section II.E.3. The asterisk denotes an insignificant activity source category based on the size of the activity, emissions levels from the activity or the production rate of the activity. The owner or operator of individual emission points marked with an asterisk in section II.E.3., below, must maintain sufficient record keeping to verify that the exemption applies. Such records shall be made available for division review upon request.
   1. The following sources are exempt from the requirement to obtain an operating permit pursuant to this Part C:
      1. II.E.1. Sources subject to regulation or requirements pertaining to standards of performance for new residential wood heaters pursuant to Regulation No. 6; or II.E.2. Sources subject to regulation or requirements pertaining to national emissions standards for hazardous air pollutants for asbestos in the course of demolition and renovation pursuant to Regulation No. 8.
         1. II.E.3. Certain categories of sources and activities which are considered to be insignificant contributors to air pollution as listed below. A source solely comprised of one or more of these activities is not required to obtain an operating permit pursuant to this regulation, unless the source's emissions trigger the major source threshold as defined in section I.B.59., Part A of this Regulation No. 3 (definition of major source for purposes of Part C): II.E.3.a. *Individual emission points in nonattainment areas having uncontrolled actual emissions of any criteria pollutant as defined in Part A, section II.B.9., of this Regulation No. 3 of less than one ton per year, and individual emission points in attainment areas having uncontrolled actual emissions of any criteria pollutant of less than two tons per year, and each individual emission point with uncontrolled actual emissions of lead less than one hundred pounds per year, regardless of where the source is located.

            II.E.3.b. Individual emission points of non-criteria reportable pollutants having uncontrolled actual emissions less than the de minimis levels as determined following the procedures set forth in Appendix A.

            II.E.3.c. Air conditioning or ventilating systems not designed to remove air pollutants generated by or released from other processes or equipment. II.E.3.d. Fireplaces used for recreational purposes, inside or outside. II.E.3.e. Fires and equipment used for noncommercial cooking of food for human consumption, or cooking of food for human consumption at commercial food service establishments, except for char broilers and wood fired equipment (but not including campfires) in PM nonattainment areas. Charbroiled shall mean a cooking device in a commercial food service establishment, either gas fired or using charcoal or other fuel, upon which grease drips down upon an open flame, charcoal or embers.

            II.E.3.f. Flares used to indicate danger to the public. II.E.3.g. Agriculture operations such as farming, cultivating and harvesting, seasonal crop drying, grain handling operations that are below New Source Performance Standards de minimis levels (including milling and grain elevator operations), and animal feeding operations that are not housed commercial swine feeding facilities as defined in Regulation No. 2, Part B. This exemption does not apply to an agricultural operation that: (1) is a major stationary source (Regulation No. 3 Part A, section I.B. 60.); (2) meets or exceeds the storage capacity thresholds of a federal New Source Performance Standards (Regulation No. 6, Part A); or (3) participates in the early reduction program of the Federal Act, section 112. Ancillary operations such as fueling stations located at farms or ranches are not exempt from Air Pollutant Emission Notice and permit requirements unless otherwise below the de minimis emission levels contained in this regulation, and are not exempt from other applicable regulations promulgated by the commission.

            II.E.3.h. Emissions from, or construction, or alteration of residential structures, including all buildings or other structures used primarily as a place of residence, and including home heating devices.

            II.E.3.i. Research laboratories II.E.3.i.(i) Noncommercial (in-house) experimental and analytical laboratory equipment that is bench scale in nature including quality control/quality assurance laboratories, process support laboratories, environmental laboratories supporting a manufacturing or industrial facility, and research and development laboratories.

            II.E.3.i.(ii) *Research and development activities that are of a small pilot scale and that process less than ten thousand pounds of test material per year; II.E.3.i.(iii) *Small pilot scale research and development projects less than six months in duration with controlled actual emissions less than five hundred pounds of any criteria pollutant or ten pounds of any non-criteria reportable pollutant.

            II.E.3.j. *Disturbance of surface areas for purposes of land development, that do not exceed twenty-five contiguous acres and that do not exceed six months in duration. (This does not include mining operations or disturbance of contaminated soil).

            II.E.3.k. *Each individual piece of fuel burning equipment, other than smokehouse generators and internal combustion engines, that uses gaseous fuel, and that has a design rate less than or equal to five million British thermal unit per hour. (See definition of fuel burning equipment in the Common Provisions Regulation). II.E.3.l. Internal combustion engines powering portable drilling rigs. II.E.3.m. *Petroleum industry flares, not associated with refineries, combusting natural gas containing no hydrogen sulfide except in trace amounts (less than five hundred parts per million weight), approved by the Colorado Oil and Gas Conservation Commission and having uncontrolled emissions of any pollutant of less than five tons per year.

            II.E.3.n. *Chemical storage tanks or containers that hold less than five hundred gallons, and that have an annual average throughput less than twenty-five gallons per day.

            II.E.3.o. Unpaved public and private roadways, except for haul roads located within a stationary source site boundary.

            II.E.3.p. Sanding of streets and roads to abate traffic hazards caused by ice and snow. II.E.3.q. Open burning activities, except that all reporting and permitting requirements that apply to such operations must be followed (see Regulation No. 9). II.E.3.r. Brazing, soldering, or welding operations that use lead based compounds. All welding that occurs strictly for maintenance purposes is exempt. II.E.3.s. Street and parking lot striping.

            II.E.3.t. Battery recharging areas.

            II.E.3.u. Aerosol can usage.

            II.E.3.v. Sawing operations, that are ancillary to facility operations, and are not part of the production process.

            II.E.3.w. The process of demolition and re-bricking of furnaces and kilns. This does not include subsequent operation of such furnaces or kilns. II.E.3.x. Road and lot paving operations at commercial and industrial facilities, except that asphalt and cement batch plants require Air Pollutant Emission Notices and permits, unless exempt under some other section.

            II.E.3.y. Adhesive use that is not related to production. II.E.3.z. Fire training activities.

            II.E.3.aa. Caulking operations that are not part of a production process. II.E.3.bb. *Landscaping and site housekeeping devices equal to or less than ten horsepower in size (lawnmowers, trimmers, snow blowers, etc.). II.E.3.cc. Fugitive emissions from landscaping activities (e.g., weeding, sweeping). II.E.3.dd. Landscaping use of pesticides, fumigants, and herbicides. II.E.3.ee. *Crude oil loading truck equipment at exploration and production sites where the loading rate does not exceed 10,000 gallons of crude oil per day averaged on an annual basis. Condensate truck loading equipment at exploration and production sites that splash fill less than 6750 barrels of condensate per year or that submerge fill less than 16308 barrels of condensate per year. II.E.3.ff. Emergency events such as accidental fires.

            II.E.3.gg. Smoking rooms and areas.

            II.E.3.hh. Plastic pipe welding.

            II.E.3.ii. Vacuum cleaning systems used exclusively for industrial, commercial, or residential housekeeping purposes.

            II.E.3.jj. Beauty salons.

            II.E.3.kk. Operations involving acetylene, butane, propane and other flame cutting torches.

            II.E.3.ll. Pharmacies.

            II.E.3.mm. *Chemical storage areas where chemicals are stored in closed containers, and where total storage capacity does not exceed five thousand gallons. This exemption applies solely to storage of such chemicals. This exemption does not apply to transfer of chemicals from, to, or between such containers. II.E.3.nn. Architectural painting, roof coating material and associated surface preparation (except for sandblasting and except for volatile organic compound emissions, associated with surface preparation, above Air Pollutant Emission Notice de minimis levels) for maintenance purposes at industrial or commercial facilities. II.E.3.oo. Emissions of air pollutants that are not criteria or non-criteria reportable pollutants (see section I.B.39., Part A). These emissions include methane, ethane and carbon dioxide.

            II.E.3.pp. Janitorial activities and products.

            II.E.3.qq. Grounds keeping activities and products.

            II.E.3.rr. Sources of odorous emissions that do not utilize emission control equipment for control of odorous emissions. This exemption applies to the odor emissions only. All other emissions are subject to other exemptions set forth in this regulation. This exemption does not exempt any source from the requirements of Regulation No. 2.

            II.E.3.ss. Truck and car wash units.

            II.E.3.tt. Office emissions, including cleaning, copying, and restrooms. II.E.3.uu. *Oil production wastewater (produced water tanks), containing less than one percent by volume annual average crude oil, except for commercial facilities that accept oil production wastewater for processing.

            II.E.3.vv. Electrically operated curing ovens, drying ovens and similar activities, articles, equipment, or appurtenances. This exemption applies to the ovens only, and not to the items being dried in the ovens.

            II.E.3.ww. Equipment used exclusively for portable steam cleaning. II.E.3.xx. Blast-cleaning equipment using a suspension of abrasive in water and any exhaust system or collector serving them exclusively.

            II.E.3.yy. Commercial laundries (except dry cleaners) that do not burn liquid or solid fuel. II.E.3.zz. Storage of butane, propane, or liquefied petroleum gas in a vessel with a capacity of less than sixty thousand gallons, provided the requirements of Regulation No. 7, section IV., are met, where applicable. II.E.3.aaa. Storage tanks of capacity less than forty thousand gallons of lubricating oils or waste lubricating oils.

            II.E.3.bbb. *Venting of compressed natural gas, butane or propane gas cylinders, with a capacity of one gallon or less.

            II.E.3.ccc. *Fuel storage and dispensing equipment in ozone attainment areas operated solely for company-owned vehicles where the daily fuel throughput is no more than four hundred gallons per day, averaged annually. Sources in the Denver- Metropolitan ozone attainment-maintenance area must utilize Stage 1 vapor recovery on all tanks greater than five hundred and fifty gallons capacity, as required by Regulation No. 7, in order to take this exemption. II.E.3.ddd. *Crude oil storage tanks with a capacity of 40,000 gallons or less. II.E.3.eee. Indirect sources are exempt until a (permit) regulation specific to indirect sources is promulgated by the commission.

            II.E.3.fff. *Storage tanks meeting all of the following criteria: II.E.3.fff.(i) Annual throughput is less than four hundred thousand gallons; and II.E.3.fff.(ii) The liquid stored is one of the following: II.E.3.fff.(ii)(A) Diesel fuels 1 - D, 2 - D, or 4 - 6; II.E.3.fff.(ii)(B) Fuel oils #1 - #6;

            II.E.3.fff.(ii)(C) As turbine fuels 1 - GT through 4 - GT; II.E.3.fff.(ii)(D) An oil/water mixture with a vapor pressure less than or equal to that of diesel fuel (Reid vapor pressure of .025 psia). II.E.3.ggg. Each individual piece of fuel burning equipment that uses gaseous fuel, and that has a design rate less than or equal to ten million British thermal unit per hour, and that is used solely for heating buildings for personal comfort. II.E.3.hhh. Natural gas vehicle fleet fueling facilities. II.E.3.iii. Electric motors driving equipment at non-commercial machining shops. II.E.3.jjj. Recreational swimming pools.

            II.E.3.kkk. Forklifts.

            II.E.3.lll. Handling equipment and associated activities for glass that is destined for recycling.

            II.E.3.mmm. Containers, reservoirs, or tanks used exclusively for dipping operations, that contain no organic solvents, for coating objects with oils, waxes, greases, or natural or synthetic resins.

            II.E.3.nnn. Emergency power generators that:

            II.E.3.nnn.(i) Have a rated horsepower of less than 260 or; II.E.3.nnn.(ii) *Operate no more than 250 hours per year and have a rated horsepower of less than 737; or II.E.3.nnn.(iii) *Operate no more than 100 hours per year and have a rated horsepower of less than 1,840.

            II.E.3.ooo. The collection, transmission, liquid treatment, and solids treatment processes at domestic wastewater treatment works, or treatment facilities that treat only domestic type wastewater, except for combustion processes. II.E.3.ppp. Gasoline stations located in ozone attainment areas. II.E.3.qqq. *Surface mining activities that mine seventy thousand tons or fewer of product material per year. A fugitive dust control plan is required for such sources. Crushers, screens and other processing equipment activities are not included in this exemption.

            II.E.3.rrr. Composting piles, however, all odor requirements of Regulation No. 2 must be met.

            II.E.3.sss. Fugitive emissions of hazardous air pollutants that are natural constituents of native soils and rock (not added or concentrated by chemical or mechanical processes) from under ground mines or surface mines unless such source is a major source of hazardous air pollutants under Part C of this Regulation No. 3. II.E.3.ttt. The use of pesticides, fumigants, and herbicides when used in accordance with requirements established under the federal Insecticide, Fungicide and Rodenticide Act as established by the U.S. EPA (United States Code Title 7, Section 136 et seq.).

            II.E.3.uuu. Ventilation of emissions from mobile sources operating within a tunnel, garage, or building.

            II.E.3.vvv. Non-asbestos demolition.

            II.E.3.www. Sandblast equipment when the blast media is recycled and the blasted material are collected.

            II.E.3.xxx. Stationary internal combustion engines:

            II.E.3.xxx.(i) *Less than or equal to 175 horsepower which operate less than 1,450 hours per year.

            II.E.3.xxx.(ii) *Greater than 175 horsepower and less than or equal to 300 horsepower which operate less than 850 hours per year.

            II.E.3.xxx.(iii) *Greater than 300 horsepower and less than or equal to 750 horsepower which operate less than 340 hours per year.

            II.E.3.yyy. Surface water storage impoundment of non-potable water and storm water evaporation ponds.

            II.E.3.zzz. Non-potable water pipeline vents.

            II.E.3.aaaa. Steam vents and safety release valves.

            II.E.3.bbbb. Deaerator/vacuum pump exhausts.

            II.E.3.cccc. Seal and lubricating oil systems for steam turbine electric generators. II.E.3.dddd. Venting of natural gas lines for safety purposes. II.E.3.eeee. Chemical storage tanks II.E.3.eeee.(i) *Sulfuric acid storage tanks not to exceed ten thousand five hundred gallons capacity.

            II.E.3.eeee.(ii) *Sodium hydroxide storage tanks.

            II.E.3.ffff. Wet screening operations notwithstanding the applicability of the New Source Performance Standards included in the Code of Federal Regulations, Title 40, Part 60, Subpart OOO.

            II.E.3.gggg. *Any condensate storage tank with a production rate of 730 barrels per year or less or condensate storage tanks that are manifolded together with a production rate of 730 barrels per year or less that are owned and operated by the same person, and are located at exploration and production sites. II.F. Sources that are not required by this Part C to obtain an operating permit may elect to apply for, and may be issued, an operating permit. Any such permit issued must contain terms and conditions sufficient to satisfy the requirements of this regulation. II.G. All federally-enforceable terms and conditions in an operating permit, including any provisions designed to limit a source's potential to emit, are enforceable by the Administrator, as well as citizens pursuant to United States Code Title 42, Section 7604.

III. OPERATING PERMIT APPLICATION REQUIREMENTS III.A. Option for pre-application meeting Prior to submitting an application for a permit an applicant may request and, if so requested, the division shall grant, a pre-application meeting with the applicant. At such meeting, the division shall advise the applicant of the applicable permit requirements, including the information, plans, specifications and the data required to be furnished with the permit application, based on the best information available from the applicant at the time. Failure of the division to identify all requirements and information does not exempt the source from compliance with applicable requirements or these regulations.

III.B. Application for operating permit and combined construction/operating permit applications III.B.1. An application for an operating permit shall be prepared on forms supplied by the division that meet all the requirements of the Federal Act. Applicants shall submit sufficient copies of their applications for provision of copies to the Administrator, affected states and county clerks as required by sections V.B.5., VI., and IX., of this Part C. III.B.2. Each source required to obtain an operating permit pursuant to section III., of this Part C, for the first time, shall submit an application for such a permit no later than twelve months after the source becomes subject to the operating permit requirement. A source that becomes subject to the operating permit program by operation of law, such as the adoption of new legal requirements, shall submit an application for an operating permit within twelve months of the effective date of such new legal requirements unless otherwise specified by the requirements. A new source or an existing source that modifies in a way that renders it newly subject to the operating permit requirements, shall submit a complete application for an operating permit within twelve months of commencing operation, except as otherwise provided herein. Modifications made to a source with an operating permit, through a permit issued under Part B of this regulation shall apply for a modification to their operating permit within twelve months of startup. A new source (including any significant modification), shall meet the applicable requirements of Part B. III.B.3. Reserved.

1. III.B.4. Reserved.
   1. III.B.5. All other major sources existing on January 1, 1995 shall submit their operating permit applications unless otherwise notified by the division. III.B.6. Each source subject to an operating permit shall submit an application for renewal of the operating permit at least twelve months, but not more than eighteen months, prior to the expiration of the operating permit. All of the provisions governing the application for and issuance of operating permits are applicable to applications for renewal of operating permits, except that an application for permit renewal may address only those portions of the permit that require revision, supplementing, or deletion, incorporating the remaining permit terms by reference from the previous permit. A copy of any materials incorporated by reference must be included with the application. The division may choose to issue a draft renewal or proposed renewal permit specifying only those portions that will be revised, supplemented, or deleted, incorporating the remaining permit terms by reference. All requirements for compliance plans, compliance schedules and compliance certifications found in sections III.B.7., III.B.8., and III.C.8. - III.B.13., are applicable to the entire operating permit upon renewal.
      1. III.B.7. A source required to obtain a construction permit pursuant to Part B of this Regulation No. 3, may submit an application for a combined construction permit and operating permit on a standard application form supplied by the division prior to commencing construction, modification, installation or commencement of any activities or operations for which a construction permit is required pursuant to Part B. In accordance with the provisions of Part B, a source applying for a combined construction/operating permit cannot construct before issuance of a permit.
         1. III.B.8. Applications shall be signed by a responsible official who shall also sign the compliance certification on the application. The compliance certification shall include: (a) a certification of compliance with all applicable requirements; (b) a statement of methods used for determining compliance, including a description of monitoring, record keeping, and reporting requirements and test methods; (c) a schedule for submission of compliance certifications during the permit term not less than annually, or more frequently as specified by the terms and conditions of the permit; (d) a statement indicating the source's compliance status with any applicable compliance assurance monitoring and compliance certification requirements; (e) if applicable to a source, a statement indicating the source has properly registered its risk management plan required pursuant to section 112(r) of the Federal Act. Compliance certifications for state-only conditions shall be separate from compliance certifications required under the Federal Act, and shall only be required for sources of such state-only conditions seeking the operational flexibility provisions of sections X., XI., and XII., of this Part C. Sources seeking protection under the terms of the permit shield for such state-only conditions, or sources of state-only conditions are otherwise required to obtain an operating permit pursuant to the state Act. III.B.9. Each application form, report and compliance certification submitted pursuant to this regulation shall contain a certification by a responsible official of the truth, accuracy and completeness of such form, report or certification stating that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate and complete.

III.C. Complete applications The applicant shall furnish all information and data required by the division to evaluate the permit application and to make its preliminary analysis in accordance with section IV., of this Part C including, but not limited to:

1. III.C.1. Identifying information, including company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and name of plant site manager/contact;
   1. III.C.2. A description of the source's processes and products (by standard industrial classification code) including any associated with alternate scenarios identified by the source; III.C.3. The following emission-related information:
      1. III.C.3.a. All emissions of pollutants for which the source is major, and all emissions of regulated air pollutants. A permit application shall describe all emissions of regulated air pollutants emitted from any emissions unit, except where such units are exempted under section II.E., of this Part C, and all additional information related to the emissions of air pollutants sufficient to verify which requirements are applicable to the source and other information necessary to collect any permit fees owed pursuant to section VI., Part A;
         1. III.C.3.b. Identification and description of all points of emissions described in section III.C.3.a., above, in sufficient detail to establish the basis for fees and applicability of requirements of the Federal Act;

            III.C.3.c. Emissions rate in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method; III.C.3.d. The following information to the extent it is needed to determine or regulate emissions: fuels, fuel use, raw materials, production rates, and operating schedules;

            III.C.3.e. Identification and description of air pollution control equipment and compliance monitoring devices or activities;

            III.C.3.f. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated air pollutants at the source; III.C.3.g. Other information required by any applicable requirement, including information related to stack height limitations developed pursuant to United States Code Title 42, Section 7423 (Part A, section VIII., of this Regulation No. 3); and III.C.3.h. Calculations on which the information required in sections III.C.3.a. - III.C.3.g., are based.

            III.C.4. The following air pollution control requirements: III.C.4.a. Citation and description of all applicable requirements, and III.C.4.b. Description of, or reference to, any applicable test method for determining compliance with each applicable requirement.

            III.C.5. Other specific information that may be necessary to implement and enforce other applicable requirements of the Federal Act or of this section III., or to determine the applicability of such requirements.

            III.C.6. An explanation of any proposed exemptions from otherwise applicable requirements. III.C.7. Additional information as determined to be necessary by the division to define alternative operating scenarios identified by the source pursuant to section IV., of Part A, or to define permit terms and conditions implementing section XII., of this Part C. III.C.8. A compliance plan which contains: (a) a description of the compliance status of the source with respect to all applicable requirements; (b) for applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements; (c) for applicable requirements that will become effective during the permit term, a statement that the source will meet the requirements on a timely basis; and (d) for requirements for which the source is not anticipated to be in compliance at the time of permit issuance, a narrative description of how the source will achieve compliance with such requirements.

            III.C.9. A compliance schedule which contains: (a) for applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements; or (b) for applicable requirements that will become effective during the permit term, a statement that the source will meet the requirements on a timely basis. A statement that the source will meet in a timely manner applicable requirements that become effective during the permit term shall satisfy the provision, unless a more detailed schedule is expressly required by the applicable requirement; and (c) a schedule of compliance for sources that are not anticipated to be in compliance at the time of permit issuance. This schedule shall include a schedule of enforceable remedial milestones, leading to compliance with any applicable requirements for which the source will be in noncompliance at the time of permit issuance. This compliance schedule shall be at least as stringent as that contained in any judicial consent decree or administrative order to which the source is subject. Any such schedule of compliance shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based.

            III.C.10. A schedule for submission of progress reports no less frequently than every six months for sources required to have a schedule of compliance to remedy a violation. III.C.11. The compliance plan content requirements specified in this section shall apply and be included in the acid rain portion of a compliance plan for an affected source, except as specifically superseded by regulations promulgated under Title IV of the Federal Act, Code of Federal Regulations Title 40, Part 72, with regard to the schedule and method(s) the source will use to achieve compliance with the acid rain emissions limitations. III.C.12. Data necessary to allow the division to determine whether the source complies with: III.C.12.a. All applicable emission control regulations; III.C.12.b. Applicable regulations for the control of hazardous air pollutants; III.C.12.c. Requirements of the nonattainment and attainment programs, sections IV.D.2., and IV.D.3., of Part B; and III.C.12.d. Any applicable ambient air quality standards (for temporary sources and new or modified sources applying for a combined construction/operating permit only). When the data includes modeling, the model used shall be an appropriate one given the topography, meteorology, and other characteristics of the region that the source will impact; and III.C.12.e. All applicable regulations.

            III.C.13. Copies of Air Pollutant Emission Notices on file with the division indicating production/process rates for which the operating permit is to be evaluated, or, if Air Pollutant Emission Notice(s) have not been previously filed, a new Air Pollutant Emission Notice(s) shall be submitted in accordance with Part A, section II. The Air Pollutant Emission Notice fee will not be charged for submission of copies of current Air Pollutant Emission Notice(s) previously filed with the division.

III.D. Operating Permit Renewal In submitting an application for renewal of an operating permit issued under these regulations, a source may identify terms and conditions in its previous permit that remain unchanged and incorporate by reference those portions of its existing permit and the permit application and any permit amendments or modification applications that describe products, processes, operations, and emissions to which those terms and conditions apply. The source must identify specifically and list which portions of its previous permit and/or applications that are incorporated by reference. In addition, a renewal application must contain: III.D.1. Information for those products, processes, operations, and emissions, in accordance with the provisions of this Part C, that:

1. III.D.1.a. Are not addressed in the existing permit;
   1. III.D.1.b. Are subject to applicable requirements that are not addressed in the existing permit; or III.D.1.c. Are permit terms and conditions that differ from those in the existing permit. III.D.2. A compliance plan, schedule, and certification requirements for the entire permit in accordance with this Part C.

III.E. A major source may comply with this section through any one of the following methods: III.E.1. The source may obtain a single permit for all relevant emission points located within a contiguous or adjacent area under common control (whether or not falling under the same two-digit standard industrialized code);

1. III.E.2. The source may obtain separate permits for separate emission points or groups of emission points, or III.E.3. The division may issue a permit covering one or more emission points eligible for coverage under a general permit and the source may obtain a separate permit or permits for emission points not eligible for such coverage.

III.F. The acid rain portions of permit applications shall be made on nationally-standardized forms pursuant to regulation promulgated by the Administrator at Code of Federal Regulations Title 40, Part 72.

IV. PROCESSING OF APPLICATIONS IV.A. Standards for application determinations The division shall evaluate operating permit applications and combined construction/operating permit applications. The evaluation of permit applications shall consider, for the construction permit portion, whether operation of the proposed new source at the date of start-up, and for operating permits whether the permitted emissions, will comply with all applicable emissions control regulations, regulations for the control of hazardous air pollutants, applicable ambient air quality standards and regulations, requirements for the prevention of significant deterioration of air quality that is better than the National Ambient Air Quality Standards, and nonattainment area requirements. The submittal of a complete application shall not affect the requirement that any source have a construction permit pursuant to Part B of this Regulation No. 3, except as otherwise required herein.

IV.B. Completeness determinations IV.B.1. An application for an operating permit or a combined construction permit/operating permit, will not be deemed to be complete until all information and data required to evaluate the application have been submitted to the division. Within sixty calendar days after the receipt of an application or any supplemental information requested by the division, the division will give notice to the applicant if and in what respect the application is incomplete. If the division fails to notify an applicant that the application is incomplete within sixty calendar days of receipt of the original application or receipt of the requested supplemental information, the application shall be deemed to have been complete as of the day of receipt by the division of the application or the last submitted supplemental information, whichever is later, for the purposes specified in section II.B., of this Part C (concerning the application shield). Nothing herein precludes the division from requesting further information about the source in order to process the permit application. If the division concludes that the application is not complete, it shall inform the applicant of the additional information that must be submitted prior to consideration of the application. No completeness determination shall be required for applications for administrative or minor permit modification procedures under section III., of Part A, or sections X., and XI., of this Part C.

1. IV.B.2. The division shall review each application submitted to determine whether it is complete. An application shall be deemed to be complete when it contains the information required by sections III.B., III.C., and III.D., of this Part C in sufficient detail for the division to evaluate the subject source and the permit application, to determine all applicable requirements and to calculate all applicable fees.
   1. IV.B.3. A source shall supplement its permit application to correct or update information provided in its initial submission as soon as it becomes aware of any omissions or incorrect information submitted or to address changes made to the source after submission of the application, but prior to public notice as provided in section VI., of this Part C. IV.B.4. A source shall supplement its permit application to address any requirements that become applicable to the source after the date the source submitted its application, but prior to issuance of a draft permit.

IV.C. Permit application processing timeframes For operating permit applications, or for combined construction and operating permit applications, the division shall approve or disapprove the permit application within eighteen months of receipt of a complete application. Permit processing timeframes for operating permit applications for affected sources under the acid rain provisions shall be governed by Code of Federal Regulations Title 40, Part 72. If a timely and complete application is filed, but the division fails to issue or deny a renewal operating permit prior to expiration of the operating permit for which a source is seeking renewal, the previously-issued operating permit, and all of its terms and conditions, shall not expire until the renewal operating permit is issued and any previously extended permit shield continues in full force and operation.

1. To the extent feasible, applications shall be acted upon in the order received except that priority shall be given to taking final action on applications for construction or modification under Title I, Part C, and Part D, of the Federal Act. Final action on such applications shall be taken within twelve months following receipt of a complete application. IV.D. Requests for additional information If, after an application is deemed complete, the division determines that additional information is necessary to evaluate or take final action on an application, the division shall request necessary information in writing and set a reasonable deadline for response. Additional information submitted within the deadline will be evaluated by the division. If the applicant fails to provide the requested information or does not meet the deadline, the source's ability to operate without a permit shall terminate on the date of the deadline as provided in section II.B., of this Part C.

V. OPERATING PERMIT ISSUANCE, RENEWALS AND MODIFICATIONS V.A. Except as provided below, the division shall not issue, reissue or renew an operating permit until the source has obtained a final approval construction permit for all emission units pursuant to Regulation No. 3, Part B, section IV.H. However, nothing in this section shall preclude the division from issuing, reissuing, or renewing an operating permit if the holder of an initial approval construction permit has not commenced operation of the new construction or modification authorized by that construction permit.

1. When the source has not demonstrated compliance with the terms of an initial approval construction permit as required pursuant to Regulation No. 3, Part B, section IV.H., or has not obtained a final approval construction permit as required above, the division may issue, reissue or renew an operating permit under the following circumstances: V.A.1. If the source has not demonstrated compliance under the provisions of Regulation No. 3, Part B, section IV.H., and the source is not anticipated to be in compliance at the time of the operating permit issuance with any of the terms or conditions of the initial approval construction permit, the operating permit must contain a compliance plan and compliance schedule that meets the requirements of Regulation No. 3, Part C, sections III.C.8., III.C.9., and III.C.10., with respect to those permit term(s). In that instance, the deviation reporting required under Regulation No. 3, Part C, section V.C.7.b., may, at the division's discretion, serve as the demonstration required pursuant to Regulation No. 3, Part B, section IV.H., and no final approval construction permit will be issued; or V.A.2. If the source has not demonstrated compliance under the provisions of Regulation No. 3, Part B, section IV.H., and the source anticipates being in compliance at the time of the operating permit issuance with all of the terms or conditions of the initial approval construction permit, the division can elect to allow the initial approval construction permit to continue in full force and effect pursuant Regulation No. 3, Part B, section IV.H.4. In that instance, the first deviation report after permit issuance as required under Regulation No. 3, Part C, section V.C.7.b., may, at the division's discretion, serve as the demonstration required pursuant to Regulation No. 3, Part B, section IV.H., and no final approval construction permit will be issued; or V.A.3. If the source has demonstrated compliance under the provisions of Regulation No. 3, Part B, section IV.H., but not yet received a final approval construction permit, the division may, at its discretion, elect to either issue a final approval construction permit or allow the initial approval construction permit to continue in full force and effect. The division shall provide written notice to the permittee of its election. V.B. An operating permit, permit modification or permit renewal shall be issued only upon a determination by the division that the following criteria have been met: V.B.1. The division has received a complete application for a permit, permit modification, or permit renewal;
   1. V.B.2. Public comment and hearing requirements, except for modifications qualifying for minor permit modification procedures or administrative permit revisions; V.B.3. Requirements for notifying and responding to affected states pursuant to section IX., of this Part C. This section is not applicable to minor sources that voluntarily apply for an operating permit for purposes of sections X., XI., and XII., unless the source is required to have federally enforceable emissions limitations to be considered a minor source, nor to major sources of Colorado-only Hazardous Air Pollutants subject to the operating permit requirements solely due to state-only conditions under the state Act; V.B.4. Permit conditions provide for compliance with all applicable requirements and the requirements of this Regulation No. 3; and V.B.5. The Administrator has received a copy of the proposed permit and has not objected to its issuance within forty-five days of receipt of the proposed permit and all necessary supporting information. This section is not applicable to minor sources that voluntarily apply for an operating permit for purposes of sections X., XI., and XII., unless the source is required to have federally enforceable emissions limitations to be considered a minor source, nor to major sources of Colorado-only Hazardous Air Pollutants subject to the operating permit requirements solely due to state-only conditions under the state Act. V.B.6. The Administrator's objection to permit issuance shall be based on a determination that the proposed permit will not be in compliance with applicable requirements or requirements of Code of Federal Regulations Title 40, Part 70. Any such objection shall include a statement of the Administrator's reasons for objecting and a description of the terms and conditions that the permit must include to respond to the objection. Failure of the division to do any of the following shall also constitute grounds for an objection by the Administrator:
      1. V.B.6.a. Failure to comply with the provisions of section V.F., of this Part C for submission of copies of permit applications, proposed permits, and final permits to the Administrator;
         1. V.B.6.b. Failure to comply with the provisions of section IX., of this Part C for review by affected states;

            V.B.6.c. Failure to submit any information to the Administrator necessary to review adequately the proposed permit; or V.B.6.d. Failure to comply with the provisions of section VI., of this Part C for public participation.

            V.B.7. If the division fails, within ninety days after an objection by the Administrator, to revise and submit a proposed permit in response to the objection, the Administrator will issue or deny the permit in accordance with the requirements of the federal program promulgated under Title V of the Federal Act.

            V.B.8. The permit applicant has paid all applicable hourly fees as set forth in Part A, section VI., of this Regulation No. 3.

V.C. An operating permit shall contain, at a minimum, the following: V.C.1. Emissions limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance, including:

1. V.C.1.a. The permit shall specify and reference the origin of and authority for each term and condition, and identify any difference in form as compared to the applicable requirement upon which the term or condition is based; and V.C.1.b. The permit shall state that, where an applicable requirement of the Federal Act is more stringent than an applicable requirement of regulations promulgated under Title IV of the Federal Act, Code of Federal Regulations Title 40, Part 72, both provisions shall be incorporated into the permit and shall be federally enforceable; and V.C.1.c. If allowed by the state implementation plan, an alternative emissions limitation that is at least as stringent as an applicable requirement may be substituted for an applicable requirement as a permit term or condition, so long as the permit containing such equivalency determination contains provisions to ensure that any resulting emissions limitation is quantifiable, accountable, enforceable and based on replicable procedures.
   1. V.C.2. The permit term shall be five years.
      1. V.C.3. The effective date and termination date of the permit shall be specifically identified in the permit.
         1. V.C.4. A statement of all monitoring and related record keeping and reporting requirements shall be specifically identified in the permit.

            V.C.5. Each permit shall contain the following requirements with respect to monitoring: V.C.5.a. All emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any required procedures and methods for compliance assurance monitoring and compliance certification requirements;

            V.C.5.b. Where the applicable requirement does not require periodic testing or instrumental or non-instrumental monitoring, periodic monitoring, or record keeping, sufficient to yield reliable data for the relevant time period that are representative of the source's compliance with the permit as required to be reported pursuant to section V.C.16.e., of this Part C. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirements. V.C.5.c. As necessary, requirements concerning the use, maintenance and, where appropriate, installation of monitoring equipment or methods. V.C.6. Each permit shall incorporate all applicable record keeping requirements and require, where applicable, the following:

            V.C.6.a. Records of required monitoring information, that include the following: V.C.6.a.(i) Date, place, as defined in the permit, and time of sampling or measurements;

            V.C.6.a.(ii) Date(s) on which analyses were performed;

            V.C.6.a.(iii) The company or entity that performed the analysis; V.C.6.a.(iv) The analytical techniques or methods used; V.C.6.a.(v) The results of such analysis; and V.C.6.a.(vi) The operating conditions as existing at the time of sampling or measurement.

            V.C.6.b. The retention of records of all required monitoring data and support information for a period of at least five years from the date of the monitoring sample, measurement, report or application. Support information, for this purpose, includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit. The applicant may, with the division's approval, maintain any of the above records in a computerized form. Sources must retain records of all required monitoring data and support information for the most recent twelve month period, as well as compliance certifications for the past five years on-site at all times. A source shall make available for division review all other records of required monitoring data and support information required to be retained by a source upon forty-eight hours advance notice by the division. V.C.6.c. A permittee may request confidential treatment for information in any report submitted under this section pursuant to the limitations and procedures set forth in section VII., of Part A of this Regulation No. 3.

            V.C.7. Each permit shall incorporate all applicable reporting requirements, and shall require the following:

            V.C.7.a. Submittal of all reports of any required monitoring at least every six months except as otherwise required on a more frequent basis pursuant to compliance assurance monitoring rules or other applicable requirements. The division may approve alternative reporting formats and schedules proposed by an applicant consistent with the requirements of this section, allowing for coordination with other reporting requirements for that source. All instances of deviations from any permit requirements must be clearly identified in such reports. All required reports must be certified by a responsible official consistent with section III.B.8., of this Part C;

            V.C.7.b. Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. Each permit shall contain a definition of prompt reporting in relation to the degree and type of deviation likely to occur and the applicable requirements. Generally “prompt” reporting shall entail reporting as required in section V.C.7.a., above, requiring submission of reports of deviations from permit requirements at least every six months, except as otherwise specified by the division in the permit. Prompt reporting, for this purpose, does not constitute an exception to the requirements of section VII., relating to reporting of emergency events for the purpose of avoiding enforcement actions.

            V.C.8. A permit condition prohibiting emissions exceeding any allowances that the source lawfully holds under Title IV of the Federal Act or the regulations promulgated thereunder at Code of Federal Regulations Title 40, Part 72.

            V.C.9. State-only permit terms and conditions shall be listed separately on the operating permit. All procedural requirements of this Part C may apply to such state-only conditions, except as otherwise required by the state Act, in order for sources to obtain the permit shield and all operational flexibility provisions. The permit shall also contain a specific designation as not being federally enforceable any state-only terms and conditions included in the permit that are not required under the Federal Act or under any of its applicable requirements. A source may choose to obtain a separate construction permit pursuant to Part B for such state-only requirements, except as otherwise required under the state Act; V.C.10. A severability clause which demands the continued validity of the various permit requirements in the event of a challenge to any portion of the permit; V.C.11. Provisions stating the following permit terms and conditions: V.C.11.a. The permittee must comply with all conditions of the permit issued under this Part C. Any permit noncompliance relating to federally enforceable terms or conditions constitutes a violation of the Federal Act, as well as the state Act and this regulation. Any permit noncompliance relating to state-only terms or conditions constitutes a violation of the state Act and this regulation, shall be enforceable pursuant to state law, and shall not be enforceable by citizens under section 304 of the Federal Act. Any such violation of the Federal Act, the state Act or regulations implementing either statute is grounds for enforcement action, for permit termination, revocation and reissuance or modification or for denial of a permit renewal application.

            V.C.11.b. It shall not be a defense for a permittee in an enforcement action or a consideration in favor of a permittee in a permit termination, revocation or modification action or action denying a permit renewal application that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit;

            V.C.11.c. The permit may be modified, revoked, reopened, and reissued, or terminated for cause. The filing of any request by the permittee for a permit modification, revocation and reissuance, or termination, or any notification of planned changes or anticipated noncompliance does not stay any permit condition, except as provided in sections X., and XI., of this Part C;

            V.C.11.d. The permit does not convey any property rights of any sort, or any exclusive privilege;

            V.C.11.e. The permittee shall furnish to the division, within a reasonable time specified by the division, any information that the division may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the division copies of records required to be kept by the permittee, including information claimed to be confidential. Any information subject to a claim of confidentiality shall be specifically identified and submitted separately from information not subject to the claim; V.C.12. A requirement that the permittee shall pay to the division all applicable fees required by the state Act and regulations.

            V.C.13. A provision that no permit revision shall be required under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are specifically provided for in the permit; V.C.14. Terms and conditions for reasonably anticipated operating scenarios identified by the source in its application for a permit and approved by the division, in accordance with section IV.A., Part A.

            V.C.15. Terms and conditions, if the permit applicant requests them, for the trading of emissions increases and decreases in the permitted facility, in accordance with section IV.B., Part A. V.C.16. The following elements with respect to compliance: V.C.16.a. Consistent with sections III.B.7., III.B.8., III.C.8. – 13., and V.C.4.– V.C.7., of this Part C, compliance, certification, testing, monitoring, reporting, and record keeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any document (including reports) required by an operating permit shall contain a certification by a responsible official that meets the requirements of section III.B.8., of this Part C;

            V.C.16.b. Inspection and entry requirements that require, upon presentation of credentials and other documents as may be required by law, the permittee shall allow the division or any authorized representative to perform the following: V.C.16.b.(i) Enter upon the permittee's premises where an operating permit source is located, or emissions-related activity is conducted, or where records must be kept under the terms of the permit;

            V.C.16.b.(ii) Have access to, and copy, at reasonable times, any records that must be kept under the conditions of the permit:

            V.C.16.b.(iii) Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit. The permittee shall provide, as part of its permit application, a list of any specialized safety equipment which may be necessary for use by an inspector; and V.C.16.b.(iv) Any sampling or monitoring of substances or parameters at reasonable times for the purpose of assuring compliance with the permit or applicable requirements;

            V.C.16.c. A schedule of compliance consistent with section III.C., of this Part C; V.C.16.d. Progress reports consistent with an applicable schedule of compliance and section III.C., of this Part C, to be submitted at least semiannually or at a more frequent period if so specified in the applicable requirement or by the division. Such progress reports shall contain the following:

            V.C.16.d.(i) Dates for achieving the activities, milestones, or compliance required in the schedule for compliance, and dates when such activities, milestones, or compliance were achieved; and V.C.16.d.(ii) 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.

            V.C.16.e. Requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Permits shall include each of the following:

            V.C.16.e.(i) The frequency (which shall not be less than annually or such more frequent periods as specified in the applicable requirement or by the division) of submission of compliance certifications;

            V.C.16.e.(ii) In accordance with section V.C.4. - V.C.7., of this Part C, a means of monitoring the compliance of the source with its emissions limitations, standards and work practices;

            V.C.16.e.(iii) A requirement that the compliance certification include the following: V.C.16.e.(iii)(A) The identification of each permit term and condition that is the basis of the certification;

            V.C.16.e.(iii)(B) The compliance status;

            V.C.16.e.(iii)(C) Whether compliance was continuous or intermittent; V.C.16.e.(iii)(D) The method(s) used for determining the compliance status of the source, currently and over the reporting period, consistent with section V.C.4. - V.C.7., of this Part C; and whether the data collection using the methods referenced for compliance certification provide continuous or intermittent data; and V.C.16.e.(iii)(E) Such other facts as the division may require to determine the compliance status of the source.

            V.C.16.e.(iv) A requirement that all compliance certifications shall be submitted to the Administrator as well as to the division. This requirement shall not apply to sources subject to the operating permit requirements solely due to state-only conditions pursuant to the state Act;

            V.C.16.e.(v) Any additional requirements for compliance assurance monitoring and compliance certification;

            V.C.16.e.(vi) Such other provisions as the division may require. V.C.17. If a source is required to develop and register a risk management plan pursuant to section 112(r) of the Federal Act, the permit shall only refer to such plan and state the source's compliance with such registration requirement. The content of the risk management plan will not be incorporated as a permit term. V.D. The permit shield shall extend to applicable requirements that are included and specifically identified in the permit. Upon request, the division shall include in the permit a determination identifying specific requirements that do not apply to the source. The source shall specify in its permit application for such a determination the requirements as to which the determination is requested. The permit shall state that the permit shield applies to any requirements so identified. A request for a determination to extend the shield to requirements deemed applicable to the source may be made either in the original permit application or in a subsequent application for a permit modification.

V.E. If the division denies a permit, imposes conditions on a permit that are contested by the applicant, revokes a permit, or requires a permit from a source that may qualify for an exemption, the applicant or owner or operator of the source may request a hearing before the commission in accordance with the commission's Procedures for Adjudications. The request for a hearing must be filed with the commission within thirty days after the issuance of the permit, denial or revocation. The hearing shall be held in accordance with Colorado Revised Statute sections 25-7- 119 and 24-4-105 and the commission's Procedures for Adjudications. V.F. The division shall submit to the Administrator a copy of each permit application (including any application for permit modification), each proposed permit, and each final operating permit.

VI. PUBLIC PARTICIPATION REQUIREMENTS VI.A. Except for modifications qualifying for administrative permit amendments, minor permit modification procedures and operational flexibility provisions, as described in sections X., XI., and XII., of this Part C, sections III., and IV., of Part A, and except for applications for coverage under general operating permits as described in section VIII., all permit proceedings, including initial permit issuance, significant modifications, re-openings and renewals, are subject to public notice, comment and opportunity for public hearing requirements. A minor source voluntarily applying for an operating permit is not subject to the public participation requirements of this Part C unless the source is required to have a federally enforceable emission limitation to be considered a (synthetic) minor source. Minor sources that are not synthetic minors and major sources of Colorado-only Hazardous Air Pollutants subject to the operating permit requirements solely due to state-only conditions shall be subject to the public participation requirements where warranted in accordance with the provisions of Part B of this Regulation No. 3. VI.B. The division shall, within fifteen calendar days after the preparation of the preliminary analysis, cause public notice of the application to be published in a newspaper of general distribution in the area in which the proposed project or activity is or will be located, and by such other means if necessary to assure notice to the affected public, which may include posting of such notice on the publicly accessible portion of the division's web site, and cause a copy of the preliminary analysis and application to be filed with the county clerk for each county in which the source is or will be located. The division shall send written or electronic notice to the applicant, to persons requesting notice of permit applications for the type of source or geographic area and to affected states. The newspaper notice shall contain the information listed below in VI.B.1. - VI.B.9. The division's web site notice shall contain all the following information in section VI.B.1. - VI.B.15.: VI.B.1. The name and address of the permittee;

1. VI.B.2. The name and address of the affected facility;
   1. VI.B.3. The division's name and address;
      1. VI.B.4. The activity or activities proposed in the permit application; VI.B.5. The emissions change involved in any permit modification; VI.B.6. The name, address, and telephone number of a division staff contact from whom interested persons may obtain additional information, including copies of the permit draft, the application, all relevant supporting materials, the compliance plan, the monitoring and compliance certification report, and all other materials available to the division that are relevant to its permit decision;
         1. VI.B.7. Information regarding scheduling of any public comment hearing if one is requested; VI.B.8. That the division will receive and consider public comments for thirty calendar days after such publication;

            VI.B.9. The division's preliminary determination of approval, conditional approval, or disapproval of the application;

            VI.B.10. That any interested person may submit a written request for a public comment hearing to be held by the commission to receive comments regarding the concerns listed in sections VI.B.11. - VI.B.15., below, the sufficiency of the preliminary analysis, and whether the division should approve or deny the permit application. Any written request for a public comment hearing must be submitted to the division within thirty days of publication;

            VI.B.10.a. Written requests for a public comment hearing shall be directed to the division's office at 4300 Cherry Creek Drive South, Denver, Colorado 80246- 1530;

            VI.B.10.b. Requests shall: (i) identify the individual or group applying; (ii) state his or her address and phone number; (iii) state the reasons for the request; (iv) state the manner in which the person is affected by the proceedings; and (v) provide an explanation of why the person's interests are not already adequately represented.

            VI.B.11. That comments concerning the ability of the proposed activity to comply with applicable requirements are solicited from any interested person;

            VI.B.12. That comments are solicited on the air quality impacts of the source or modification; VI.B.13. That comments are solicited on alternatives to the source or modification; VI.B.14. That comments are solicited on the control technology required; VI.B.15. That comments are being solicited on any other appropriate air quality considerations. VI.C. Within fifteen calendar days after the preparation of the preliminary analysis for those applications subject to the requirements of this Part C, the division shall forward to the applicant written notice of the applicant's right to a public comment hearing with respect to the application pursuant to section 1.7.0., of the commission's procedural rules.

VI.D. A public comment hearing request pursuant to section VI.B., of this Part C must be transmitted by the division to the commission, along with the complete permit application, the preliminary analysis, the draft permit, and any written comments received by the division within five days after the end of the thirty day comment period. At least thirty days prior to the date set for the public comment hearing, the notice of public comment hearing, the preliminary analysis and the draft permit shall be posted on the division's web site. No substantive revisions shall be made to the draft permit during the thirty days prior to the public comment hearing. The applicant may submit, within ten days following the close of the public comment period, a response to any comments made. Nothing herein shall impede the division's ability to meet required processing timeframes or other required time periods contained in this regulation. VI.E. The commission shall hold a public comment hearing within sixty days of its receipt of the request for a hearing pursuant to section VI.B., or section VI.C., of this Part C, unless such greater time is agreed to by the applicant and the division. The division shall appear at the public comment hearing in order to present the permit application. At least thirty days prior to such hearing, notice thereof shall be mailed by the commission to the applicant, and to any interested person who submitted a request for a public hearing, printed in a newspaper of general distribution in the area of the proposed source or modification, and submitted for public review with the county clerk for each county in which the source or modification is or will be located. VI.F. The division shall maintain a record of the commenters and of the issues raised during the public comment and public hearing process for a period of five years. VI.G. The division shall notify the Administrator and any affected state, in writing, of any refusal to accept all recommendations for the proposed permit that the affected state submitted during the public or affected state review period, as well as reasons for such refusal. VI.H. If the Administrator does not object in writing to the issuance of any proposed permit within forty- five days of receipt of the proposed permit, any person may petition the Administrator within sixty days of expiration of the Administrator's forty-five day review period to make such objection. Any such petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period as provided for in section VI.B., of this Part C, unless the petitioner demonstrates that it was impracticable to raise such objections within that period, or unless the grounds for such objection arose after such period VI.H.1. A petition for review does not stay the effectiveness of a permit or its requirements if the permit was issued after the end of the forty-five day review period and prior to an U.S. EPA objection.

1. VI.H.2. If, pursuant to a petition filed under this section VI.H., the U.S. EPA objects to the issuance of a permit prior to its issuance, the division shall not issue the permit until the U.S. EPA's objection has been resolved.
   1. VI.H.3. If, pursuant to a petition filed under this section VI.H., the U.S. EPA objects to the issuance of a permit after it has been issued by the division, the Administrator may modify, terminate, or revoke such permit and the division may thereafter issue only a revised permit that satisfies the U.S. EPA's objection. VI.H.4. In no event will any proceeding under this section VI.H., cause a source to be in violation of the requirement to have submitted a timely and complete application.

VII. EMERGENCY PROVISIONS VII.A. An emergency means any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of god, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology- based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error.

VII.B. An emergency constitutes an affirmative defense to an action brought for noncompliance with such technology-based emission limitations if the conditions of section VII.C., are met. In any enforcement proceeding, the permittee seeking to establish the occurrence of an emergency has the burden of proof.

VII.C. The affirmative defense for an emergency shall be demonstrated through properly signed, contemporaneous operating logs, or other relevant evidence that: VII.C.1. An emergency occurred and that the permittee can identify the cause(s) of the emergency;

1. VII.C.2. The permitted facility was at the time being properly operated; VII.C.3. During the period of the emergency, the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards, or other requirements in the permit; and VII.C.4. The permittee submitted oral notice of the emergency to the division no later than noon of the next working day following the emergency, and followed by written notice within one month of the time when emission limitations were exceeded due to the emergency. This notice fulfills the requirement of section V.C.7.b., of this Part C. This notice must contain a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.
   1. VII.C.5. This provision is in addition to any emergency or upset provision contained in any applicable requirement.

VIII. GENERAL OPERATING PERMITS VIII.A. The division may, after notice and opportunity for public participation provided under section VI., of this Part C, issue a general permit covering numerous similar sources that would otherwise be required to obtain an operating permit pursuant to this Part C. Any general permit shall comply with all requirements applicable to other operating permits and shall identify criteria by which sources may qualify for the general permit. For sources that qualify, the division shall grant the conditions and terms of the general permit. Notwithstanding the permit shield, a source shall be subject to enforcement action for operation without an operating permit if the source is later determined not to qualify for the conditions and terms of the general permit. General permits are not authorized for affected sources under the acid rain program unless otherwise provided in regulations promulgated under Title IV of the Federal Act. A general permit may be issued for the following purposes:

1. VIII.A.1. To establish terms and conditions to implement applicable requirements for a source category;
   1. VIII.A.2. To establish terms and conditions to implement applicable requirements in lieu of reopening the permit to incorporate additional applicable requirements pursuant to section XIII.;
      1. VIII.A.3. To establish terms and conditions for new requirements that apply to sources with existing permits, so long as no terms or conditions of the existing permit are being violated;
         1. VIII.A.4. To establish federally enforceable caps on emissions from sources in a specified category.

            VIII.A.5. The division may issue a general permit if it finds that: VIII.A.5.a. There are several permittees, permit applicants, or potential permit applicants who have the same or substantially similar operations, emissions, activities, or facilities;

            VIII.A.5.b. The permittees, permit applicants, or potential permit applicants emit the same type of regulated air pollutants;

            VIII.A.5.c. The operations, emissions, activities, or facilities are subject to the same or similar standards, limitations, and operating requirements; and VIII.A.5.d. The operations, emissions, activities, or facilities are subject to the same or similar monitoring, record keeping, and reporting requirements. VIII.B. A general permit developed under this section shall identify criteria by which sources may qualify for the general permit. After a general permit has been developed, any eligible source may submit an application to be covered under the permit.

VIII.C. An application for coverage under a general permit shall identify the source and provide information sufficient to demonstrate that it falls within the source category covered by the general permit, together with all information necessary to determine qualification for, and to assure compliance with, the general permit including a compliance plan in accordance with section III.C.8., of this Part C.

VIII.D. A final action approving a request for coverage under a general permit shall not be subject to judicial review. A source may seek judicial review of a final action denying coverage under a general permit.

VIII.E. If some, but not all, of a source's operations, activities, and emissions are eligible for coverage under one or more general permits, the source may apply for and receive coverage under the general permits for the operations, activities, and emissions that are so eligible. If the source is required under section II., of this Part C, to obtain an operating permit addressing the remainder of its operations, activities, and emissions, it may apply for, and receive, an operating permit that addresses specifically those items not covered by general permits. In such a case, the source's operating permit shall identify all operations, activities, and emissions that are subject to general permits and incorporate those general permits by reference. VIII.F. Sources that would qualify for a general permit must apply to the division for coverage under the terms of the general permit or must apply for an operating permit under section III., of this Part C. without repeating the public participation procedures required under section VI., of this Part C, the division may grant a source's request for authorization to operate under a general permit. Such a grant shall not be a final permit action for purposes of judicial review. VIII.G. Upon granting of the general permit by the division, the source must keep a copy of the permit on- site at all times.

VIII.H. A general operating permit shall not be issued to a major source where issuance of a general permit would cause a violation of any applicable requirement in any other operating permit held by the source, or where issuance of a general operating permit operates to allow the source to avoid a modification under Title I of the Federal Act.

VIII.I. A source may commence operations under the general operating permit sixty days after submitting its application for a general operating permit unless notified by the division within that time period that additional information is required to determine whether the source qualifies for a general operating permit. Nothing herein precludes the division from requesting additional information after sixty days have elapsed since the source's submission of a general operating permit application.

VIII.J. The application shield shall become effective upon the source's submission of a complete application, in accordance with section II.B., of this Part C. VIII.K. The permit shield shall become effective upon issuance of the general operating permit by the division.

VIII.L. The general operating permits, as developed by the division, shall be required to undergo review by the Administrator, affected states and the public, as set forth in sections V.B., VI., and IX., of this Part C every five years.

IX. REVIEW BY AFFECTED STATES IX.A. The division shall give notice of each draft operating permit to any affected state on or before the time that the division provides public notice under section VI. of this Part C, except where the requirements for timing of notices are different pursuant to sections X., X.I., and XII., of this Part C.

IX.B. The division shall notify the U.S. EPA and any affected state in writing of any refusal by the division to accept all recommendations for the proposed permit that the affected state submitted during the public or affected state review period. Said notice will include the division's reasons for not accepting any such recommendation. The division is not required to accept recommendations that are not based on applicable requirements.

X. MINOR PERMIT MODIFICATION PROCEDURES X.A. Minor permit modification procedures may be used only for those permit modifications that: X.A.1. Do not violate any applicable requirement;

1. X.A.2. Do not involve significant changes to existing monitoring, reporting, or record keeping requirements in a permit;
   1. X.A.3. Do not require or change a case-by-case determination of an emission limitation or other standard or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;
      1. X.A.4. Do not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject. Such terms and conditions include:
         1. X.A.4.a. A federally enforceable emissions cap assumed to avoid classification as a modification under any provision of Title I of the Federal Act, including but not limited to modifications under Part 2 of the state Act (prevention of significant deterioration), Part 3 of the state Act (attainment), or New Source Performance Standards (Regulation No. 6);

            X.A.4.b. An alternative emissions limit approved pursuant to regulations promulgated under Colorado Revised Statute section 25-7-109.3 or section 112(i)(5) of the federal Act (Regulation No. 8);

            X.A.5. Are excepted from the definition of modification in Part A, section I.B.36.e., of this Regulation No. 3.

            X.A.6. Are not otherwise required by the division to be processed as a significant modification. X.B. Notwithstanding section X.A.5., above and XI., below (group processing criteria), minor permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other approved approaches, to the extent that such minor permit modification procedures are otherwise provided for in the state implementation plan promulgated pursuant to the state Act. X.C. An application for a minor permit modification shall be prepared on forms supplied by the division. X.D. Applications shall meet the requirements of an application for an operating permit as set forth in commission Regulation No. 3, Part C, section III., and be signed by a responsible official. The applicant shall furnish all information and data required by the division to evaluate the minor permit modification application, and shall include the following: X.D.1. A description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs; X.D.2. The source's suggested draft permit;

            X.D.3. Certification by a responsible official that the proposed modification meets the criteria for use of minor permit modification procedures and a request that such procedures be used; and X.D.4. Completed forms supplied by the division for the division to use to notify the Administrator and affected states.

            X.D.5. Data necessary to allow the division to determine whether the source complies with: X.D.5.a. All applicable emission control regulations;

            X.D.5.b. Applicable regulations for the control of hazardous air pollutants; X.D.5.c. Requirements of the nonattainment and attainment programs (sections IV.D.2., and IV.D.3., in Part B); and X.D.5.d. Any applicable ambient air quality standards and all applicable regulations. When the data includes modeling, the model used shall be an appropriate one given the topography, meteorology, and other characteristics of the region which the source will impact;

            X.D.6. Copies of Air Pollutant Emission Notice(s) on file with the division indicating production/process rates for which the operating permit is to be evaluated, or, if Air Pollutant Emission Notice(s) have not been previously filed, a new Air Pollutant Emission Notice(s) shall be submitted in accordance with Part A, section II. The Air Pollutant Emission Notice fee will not be charged for submission of copies of current Air Pollutant Emission Notice(s) previously filed with the division.

X.E. An application for a minor permit modification will not be deemed to be complete until all information and data (including any required ambient air impact analysis in accordance with section VIII., of Part A) required to evaluate the application have been submitted to the division. X.F. Within five working days of receipt of a complete minor permit modification application, the division shall send a copy of the notice completed pursuant to section X.D.4., above, to the Administrator. X.G. Within five working days of receipt of a complete minor permit modification application, the division shall send a copy of the notice completed pursuant to section X.D.4., above, to affected states. Notice to affected states shall not be required for minor sources that voluntarily apply for an operating permit to obtain the operational flexibility set forth in this Part C. The division shall notify the Administrator and any affected state of any refusal by the division to accept all recommendations for the proposed revised permit under the minor permit modification procedures that the affected state submitted during its review period. The division shall include in such notice its reasons for not accepting any such recommendation. The division is not required to accept recommendations that are not based on applicable requirements under the state or Federal Act. Notice to affected states and to the Administrator is not required for minor modifications involving state-only conditions.

X.H. Within ninety calendar days of receipt of a complete application for minor permit modification, or fifteen calendar days after the end of the Administrator's forty-five day review period, whichever is later, the division shall:

1. X.H.1. Issue the minor permit modification as proposed; X.H.2. Deny the minor permit modification application;
   1. X.H.3. Determine that the requested modification does not meet the minor permit modification criteria and should be reviewed under the significant modification procedures; or X.H.4. Revise the draft minor permit modification and transmit to the Administrator the new proposed minor permit modification as required in this Regulation No. 3, Part C, section V.B.5.

X.I. A source shall be allowed to make the changes proposed in its application for minor permit modification immediately after it files such application. If the source elects to make such changes, and until the division issues its final determination in accordance with sections H.1. - H.4., above, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions. During this time, the source does not need to comply with existing permit terms and conditions it seeks to modify, but if the source fails to comply with its proposed permit terms and conditions during this period, the existing permit terms and conditions it seeks to modify shall be fully enforceable by the division. X.J. The permit shield shall not extend to minor permit modifications. X.K. A permit modification for purposes of the acid rain portion of a permit shall be governed by regulations promulgated under Title IV of the Federal Act, found at Code of Federal Regulations Title 40, Part 72.

XI. PROCEDURES FOR GROUP PROCESSING OF MINOR PERMIT MODIFICATION APPLICATIONS XI.A. Group processing of applications for modifications eligible for minor permit modification processing may be used only for those permit modifications that:

1. XI.A.1. Meet the requirements of Part C, sections X.A.1. - X.A.6., above, for minor permit modification procedures; and XI.A.2. That collectively are below the lowest threshold level as set forth below: XI.A.2.a. Ten percent of the emissions allowed by the permit for the emissions unit for which the change is requested; or XI.A.2.b. Twenty percent of the applicable definition of major source; or XI.A.2.c. Five tons per year, whichever is less.

XI.B. An application shall be filed with the division for each change the source proposes to make, describing the change and the new emissions resulting from the change and notifying the division that the source intends to request group processing of such minor modification applications in accordance with section XI.C.4., below. An application for group processing of minor permit modifications shall be prepared on forms supplied by the division. XI.C. Applications shall meet the requirements of an application for an operating permit as set forth in commission Regulation No. 3, Part C, section III., and be signed by a responsible official. The applicant shall furnish all information and data (including any required ambient air impact analysis in accordance with section VIII., of Part A) required by the division to evaluate the minor permit modification application and shall include the following: XI.C.1. A description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs; XI.C.2. The source's suggested draft permit;

1. XI.C.3. Certification by a responsible official that the proposed modification meets the criteria for use of group processing procedures and a request that such procedures be used; XI.C.4. A list of the source's other pending applications awaiting group processing, and a determination of whether the requested modification, aggregated with these other applications, equals or exceeds the threshold set under sections XI.A.2.a. - XI.A.2.c.; XI.C.5. Certification by a responsible official that the source has notified the U.S. EPA of the proposed modification. Such notification need only contain a brief description of the requested modification;
   1. XI.C.6. Copies of Air Pollutant Emission Notice(s) on file with the division indicating production/process rates for which the operating permit is to be evaluated, or, if Air Pollutant Emission Notice(s) have not been previously filed, a new Air Pollutant Emission Notice(s) shall be submitted in accordance with Part A, section II. The Air Pollutant Emission Notice fee will not be charged for submission of copies of current Air Pollutant Emission Notice(s) previously filed with the division.
      1. XI.C.7. Completed forms for the permitting authority to use to notify the Administrator and affected states. Notice to affected states is not required for minor sources voluntarily applying for an operating permit to obtain the operational flexibility set forth in this Part C. Notice to affected states and the Administrator is not required for group processing of minor modifications involving state-only conditions.
         1. XI.C.8. As provided for in the state implementation plan, minor permit modifications made pursuant to this section XI., will not trigger the procedural requirements otherwise applicable for modifications pursuant to Part B.

XI.D. On a quarterly basis, or within five business days of receipt of an application demonstrating that the aggregate of a source's pending applications equals or exceeds the thresholds set forth in section XI.A.2., whichever is earlier, the division shall promptly notify the Administrator and affected states. A source shall only be allowed to aggregate its increased emissions caused by changes made in accordance with this section XI., during each five-year permit term, except that any aggregation of emissions that equals or exceeds the thresholds set forth in section A.2., shall trigger the procedural requirements set forth in this section XI. All aggregation of emissions not addressed through the procedures set forth in this section XI., shall be incorporated into the operating permit upon renewal.

1. The division shall promptly notify the Administrator and any affected state of any refusal by the division to accept all recommendations for the proposed revised permit under the group processing of minor permit modifications that the affected state submitted during its review period. The division shall include in such notice the reasons for not accepting any such recommendation. The division is not required to accept recommendations that are not based on applicable requirements under the state or Federal Acts. XI.E. Within one hundred and eighty calendar days of receipt of a complete application for group processing of minor permit modifications under this section XI., or fifteen calendar days after the end of the Administrator's forty-five days review period, whichever is later, the division shall: XI.E.1. Issue the minor permit modification as proposed; XI.E.2. Deny the minor permit modification application; XI.E.3. Determine that the requested modifications do not meet the minor permit modification criteria and should be reviewed under the significant modification procedures; or XI.E.4. Revise the draft minor permit modification and transmit to the Administrator the new proposed minor permit modification.

XI.F. A source shall be allowed to make the changes proposed in its application for group processing of minor permit modifications immediately after it files such application. If the source elects to make such changes, and until the division issues its final determination in accordance with sections XI.E.1. - XI.E.4., above, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions. During this time, the source does not need to comply with existing permit terms and conditions it seeks to modify, but if the source fails to comply with its proposed permit terms and conditions during this period, the existing permit terms and conditions it seeks to modify shall be fully enforceable by the division. XI.G. The permit shield shall not extend to minor permit modifications made pursuant to the group processing procedures in this section XI.

XII. OPERATIONAL FLEXIBILITY XII.A. Section 502(b)(10) changes XII.A.1. No permit revision is necessary for changes within a permitted facility, if the changes are excepted from the definition of modification in Part A, section I.B.36.e., of this Regulation

1. No. 3, and the changes do not exceed the emissions allowable under the permit, whether expressed therein as a rate of emissions or in the terms of total emissions, and provided that notice is provided to the division as set forth below: XII.A.1.a. For each such change, the facility shall provide the Administrator and the division with a minimum of seven days' written notification in advance of the proposed changes. The notice must be received by the division no later than seven days in advance of the proposed changes. The source, the division, and the Administrator shall attach each such notice to their copy of the relevant permit;
   1. XII.A.1.b. For each such change, the written notification required above shall include a brief description of the change within the permitted facility, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change;
      1. XII.A.1.c. A source shall be allowed to make such change proposed in its notice on the day following the last day of the advance notice described in this section if the division has not responded nor objected to the proposed change on or before that day; and XII.A.1.d. The permit shield shall not apply to any changes made pursuant to this section. If subsequent changes cause the facility's operations and emissions to revert to those anticipated in the operating permit, the permittee resumes compliance with the terms and conditions of the permit, and has provided the division and Administrator with a minimum of seven days advance notice of such changes in accordance with the provisions of section XII.A.1.a., above, the permit shield may be reinstated in accordance with the terms and conditions stated in the operating permit.
         1. XII.A.2. Changes made pursuant to this section XII.A., shall be incorporated into the operating permit at the time of renewal, at which time the permit shield shall apply. XII.B. Off Permit Changes No permit revision shall be necessary for changes within a permitted facility, not otherwise addressed or prohibited in the permit or in the provisions of this section XII.B., governing off permit changes. This provision shall apply to changes which are excepted from the definition of modification in Part A, section I.B.36.e., of this Regulation No. 3., or if such changes are subject to requirements of Title IV of the Federal Act (acid rain program). As provided for in the state implementation plan, changes made pursuant to this section XII.B., shall not trigger the procedural requirements contained in Part B, for obtaining a construction permit. XII.B.1. Each such change shall meet all applicable requirements and shall not violate any existing permit term or condition.

            XII.B.2. The source must provide contemporaneous written notice to the permitting authority and the Administrator of each such change, except for changes that have been determined to be insignificant by the commission pursuant to regulation. Such written notice shall describe each such change, including the date, any change in emissions, pollutants emitted, and any applicable requirement that would apply as a result of the change. A revised Air Pollutant Emission Notice shall be submitted in accordance with the provisions of Part A, section II., along with the written notice required in this section XII.B.2.

            XII.B.3. The permit shield shall not apply to any such change made pursuant to this section XII.B. XII.B.4. The source shall keep a record describing changes made at the source that result in emissions of a regulated air pollutant subject to an applicable requirement, but not otherwise regulated under the permit, and the emissions resulting from those changes, including any other data necessary to show compliance with applicable ambient air quality standards.

            XII.B.5. Changes made pursuant to this section XII.B., shall be incorporated into the operating permit at the time of renewal.

XIII. REOPENING FOR CAUSE OF PERMITS ISSUED PURSUANT TO PART C XIII.A. A permit issued pursuant to Part C of this commission Regulation No. 3, shall be reopened and revised under any of the following circumstances:

1. XIII.A.1. Additional applicable requirements become applicable to a major source with a remaining permit term of three or more years. Such reopening shall be completed no later than eighteen months after promulgation of the applicable requirement. No such reopening is required if the effective date of the requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended, or if a general permit is obtained to address the new requirement pursuant to section VIII.A.2.;
   1. XIII.A.2. Additional requirements (including excess emissions requirements) become applicable to an affected source under the acid rain program. Upon approval by the Administrator, excess emissions offset plans shall be deemed to be incorporated into the permit; XIII.A.3. The division or the Administrator determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit;
      1. XIII.A.4. The division or the Administrator determines that the permit must be revised or revoked to assure compliance with the applicable requirements;
         1. XIII.A.5. Permit reopening and reissuance shall be processed using the procedures set forth in Part C, sections III., IV., and V., of this commission Regulation No. 3 for permit issuance and permit renewal;

            XIII.A.6. Proceedings to reopen and reissue permits affect only those parts of the permit for which cause to reopen exists; and XIII.A.7. Reopening under this section of Part C shall not be initiated before notice of such intent is provided to the source by the division at least thirty days in advance of the date that the permit is to be reopened. The division may provide a shorter time period within which to give notice in the case of an emergency.

XIII.B. The division shall extend the permit shield to those parts of the permit that have been changed pursuant to the reopening and reissuance proceedings of this section of Part C. XIII.C. A source may choose to have its operating permit renewed during any proceeding for reopening the permit under this section, provided a complete application is submitted pursuant to Part C.

XIV. COMPLIANCE ASSURANCE MONITORING The regulations promulgated by the U.S. EPA listed in section XIV.A.1. below, are hereby incorporated by reference by the commission and made a part of the Colorado commission regulations. Materials incorporated by reference are those in existence as of the date indicated and do not include later amendments. The material incorporated by reference is available for public inspection during regular business hours at the Office of the Commission, located at 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530, or may be examined at any state publications depository library. Parties wishing to inspect these materials should contact the Technical Secretary of the commission, located at the office of the commission. XIV.A.1. Air Pollution Control, Monitoring, Operating Permits, Reporting and Record Keeping Requirements: Compliance Assurance Monitoring, Code of Federal Regulations Title 40, Parts 64 and 70.6, October 22, 1997 (62 FR 54900).

1. Air Pollution Control, Monitoring, Operating Permits, Reporting and Record keeping Requirements: Compliance Assurance Monitoring, Code of Federal Regulations Title 40, Parts 64, 70.6 and 71.6, October 22, 1997 (62 FR 54900 APPENDIX A Method For Determining De Minimis Levels For Non-Criteria Reportable Pollutants The following procedures must be followed in order to determine the appropriate de minimis (minimum) reporting level for each pollutant that is emitted from each emission point at a contiguous site. If you do not wish to use the three-scenario approach at your facility, you may elect to use Scenario 1 for all emission points.

Definitions Release Point - the lowest height above ground level from which the pollutants are emitted to the atmosphere.

Property Boundary - the distance from the base of the release point to the nearest property boundary. Point - an individual emission point or a group of individual emission points reported on one Air Pollutant Emission Notice as provided for in Part A, section II.B.4. Methodology To determine the de minimis level for a single pollutant being emitted from a point (single or grouped). STEP 1:

Determine which of the three scenarios below applies to the emission point. If different scenarios can be applied to the same emission point, use the highest numbered scenario that applies. In the case of grouped emission points, use the lowest scenario number (for the entire group) that applies to any of the single emission points within the group.

1. Scenario 1: Release point less than 10 meters or property boundary less than 100 meters;
   1. Scenario 2: Release point equal to or greater than 10 meters, but less than 50 meters, or property boundary equal to or greater than 100 meters, but less than 500 meters; or Scenario 3: Release point equal to or greater than 50 meters, or property boundary equal to or greater than 500 meters.

STEP 2:

Use Appendix B to identify which of the three bins (Bin A, B, or C) the chemical is listed under. If the pollutant is not listed, it does not have to be reported unless it is included in a chemical compound group.

STEP 3:

Use the table below to determine the de minimis level.

All values are in pounds per year.

1. Chemical Bin Scenario 1 De Minimis Scenario 2 De Minimis Scenario 3 De Minimis Bin A 50 125 250 Bin B 500 1250 2500 Bin C 1000 2500 5000 STEP 4:

Repeat the above steps for each pollutant emitted from each emission point (single or grouped). One Air Pollutant Emission Notice must be filed for each emission point that emits one or more chemicals above the de minimis level.

1. APPENDIX B NON-CRITERIA REPORTABLE POLLUTANTS (Sorted by BIN)
   1. Note: HAP means federal, or federal and state hazardous air pollutant HAPs means state-only hazardous air pollutant CAS Toxics HAP 79345 1,1,2,2-Tetrachloroethane HAP 79005 1,1,2-Trichloroethane HAP 75354 1,1-Dichloroethylene (Vinylidene chloride)

      HAP 57147 1,1-Dimethyl hydrazine HAP 120821 1,2,4-Trichlorobenzene HAP 96128 1,2-Dibromo-3- chloropropane HAP 122667 1,2-Diphenylhydrazine HAP 106887 1,2-Epoxybutane HAP 75558 1,2-Propylenimine (2- Methyl aziridine)

      HAP 106990 1,3-Butadiene HAP 542756 1,3-Dichloropropene HAPs 55981 1,4-Butanediol dimethanesulphonate HAP 106467 1,4-Dichlorobenzene HAPs 7644410 1,4-Dichloro-2-butene HAP 123911 1,4-Dioxane (1,4- Diethyleneoxide)

      HAP 1746016 2,3,7,8-TCDD (Dioxin)

      HAP 88062 2,4,6-Trichlorophenol HAP 94757 2,4-D, salts and esters (2,4- Dichlorophenoxyacetic acid)

      HAP 51285 2,4-Dinitrophenol HAP 121142 2,4-Dinitrotoluene HAP 584849 2,4-Toluene diisocyanate 91087 2,6-Toluene diisocyanate HAP 532274 2-Chloroacetophenone HAP 79469 2-Nitropropane HAP 119937 3,3”-Dimethylbenzidine HAP 91941 3,3-Dichlorobenzidene HAP 119904 3,3-Dimethoxybenzidine HAP 101144 4,4'-Methylenebis (2- chloroaniline)

      HAP 101779 4,4-Methylenedianiline HAP 534521 4,6-Dinitro o-cresol, and salts HAP 92671 4-Aminobiphenyl HAP 75070 Acetaldehyde HAP 75058 Acetonitrile HAP 107028 Acrolein HAP 79061 Acrylamide HAP 79107 Acrylic acid HAP 107131 Acrylonitrile HAPs 1402682 Aflatoxins 116063 Aldicarb (Temik)

      HAPs 309002 Aldrin 107186 Allyl alcohol HAP 107051 Allyl chloride 20859738 Aluminum phosphide HAP 62533 Aniline HAP 0 Antimony compounds 86884 ANTU (alphanaphthyl thiourea)

      HAP 0 Arsenic compounds HAP 1332214 Asbestos HAP 71432 Benzene HAP 92875 Benzidine (p- Diaminodiphenyl)

      HAP 98077 Benzotrichloride HAP 100447 Benzyl chloride, (Chloromethyl)benzene HAP 0 Beryllium compounds HAP 542881 Bischloromethyl ether HAP 117817 Bis(2-ethylhexyl)

      1. phthalate (DEHP)
         1. (Dioctyl phthalate)

            7726956 Bromine HAP 75252 Bromoform HAP 0 Cadmium compounds HAP 156627 Calcium cyanamide HAP 133062 Captan 1563662 Carbofuran HAP 75150 Carbon disulfide HAP 56235 Carbon tetrachloride HAP 120809 Catechol HAP 133904 Chloramben (3-amino- 2,5-dichloro benzoic acid)

      HAP 57749 Chlordane HAP 7782505 Chlorine HAP 79118 Chloroacetic acid HAP 108907 Chlorobenzene 107073 Chloroethanol HAP 67663 Chloroform (Trichloromethane)

      HAP 107302 Chloromethyl methyl ether HAP 126998 Chloroprene (2-Chloro- 1,3-butadiene)

      HAP 0 Chromium compounds (incl. 6+ compounds, etc.)

      HAP 0 Cobalt compounds (as cobalt metal dust and fumes)

      HAP 0 Coke Oven Emissions HAP 1319773 Cresylic acid/Cresols 4170303 Crotonaldehyde 123739 Crotonaldehyde (E)

      HAP 98828 Cumene HAP 0 Cyanide compounds HAP 3547044 DDE (Dichlorodiphenyldichlor oethylene)

      1. 8065483 Demeton HAP 334883 Diazomethane 19287457 Diborane HAP 111444 Dichloroethyl ether (Bis(2-chloroethyl)ether)

      HAP 62737 Dichlorvos 141662 Dicrotophos HAPs 60571 Dieldrin HAP 111422 Diethanolamine 115264 Dimefox 60515 Dimethoate HAP 77781 Dimethyl sulfate HAP 68122 Dimethylformamide 78342 Dioxathion 152169 Diphosphoramide, octamethyl 298044 Disulfoton 115297 Endosulfan 72208 Endrin HAP 106898 Epichlorohydrin (1- Chloro-2,3- epoxypropane)

      1. 563122 Ethion HAP 140885 Ethyl acrylate HAP 106934 Ethylene dibromide (1,2- Dibromoethane)

      HAP 107062 Ethylene dichloride (1,2- Dichloroethane)

      HAP 151564 Ethylene imine (Aziridine)

      HAP 75218 Ethylene oxide HAP 96457 Ethylene thiourea 22224926 Fenaminophos (Fenamiphos)

      1. 115902 Fensulfothion HAP 0 Fine mineral fibers 944229 Fonofos HAP 50000 Formaldehyde 110009 Furan HAP 0 Glycol ethers HAP 76448 Heptachlor HAP 118741 Hexachlorobenzene HAP 87683 Hexachlorobutadiene HAP 77474 Hexachlorocyclopentadie ne HAP 67721 Hexachloroethane HAP 822060 Hexamethylene-1,6- diisocyanate HAP 302012 Hydrazine HAP 7647010 Hydrochloric acid (Hydrogen chloride)

      HAP 7664393 Hydrogen fluoride (Hydrofluoric acid)

      1. 7783064 Hydrogen sulfide 465736 Isodrin HAP 78591 Isophorone 4098719 Isophorone diisocyanate HAP 0 Lead compounds (except elemental lead)

      HAP Lindane (all isomers of hexachlorocyclohexane)

      HAP 0 Manganese compounds 950107 Mephosfolan HAP 0 Mercury compounds 126987 Methacrylonitrile 10265926 Methamidophos 950378 Methidathion HAP 72435 Methoxychlor 86500 Methyl azinphos HAP 74839 Methyl bromide (Bromomethane)

      HAP 74873 Methyl chloride (Chloromethane)

      HAP 60344 Methyl hydrazine HAP 74884 Methyl iodide (Iodomethane)

      HAP 624839 Methyl isocyanate 74931 Methyl mercaptan (Methanethiol)

      HAP 75092 Methylene chloride (Dichloromethane)

      HAP 101688 Methylene diphenyl diisocyanate (MDI)

      1. 7786347 Mevinphos 505602 Mustard gas (Dichlorodiethyl sulfide)

      HAP 121697 N,N-Dimethlaniline (N,N-Dimethylaniline)

      HAP 0 Nickel compounds (incl.

      1. nickel subsulfide)
         1. 54115 Nicotine 7697372 Nitric acid HAP 98953 Nitrobenzene HAPs 55185 N-Nitrosodiethylamine HAP 62759 N-Nitrosodimethylamine HAPs 924163 N-Nitroso-di-n- butylamine HAP 90040 o-Anisidine HAP 95534 o-Toluidine 1910425 Paraquat 2074502 Paraquat methosulfate HAP 56382 Parathion 298000 Parathion-methyl HAP 82688 Pentachloronitrobenzene (Quintobenzene)

      HAP 87865 Pentachlorophenol HAP 127184 Perchloroethylene (Tetrachloroethylene)

      HAPs 122601 Phenyl glycidyl ether (3 phenoxy 1,2 propanediol)

      1. 298022 Phorate HAP 75445 Phosgene HAP 7803512 Phosphine HAP 7723140 Phosphorous HAP 1336363 Polychlorinated biphenyls (PCBs) (Aroclors)

      HAP 0 Polycyclic Organic Matter HAP 57578 Propiolactone, beta HAP 114261 Propoxur (Baygon)

      HAP 78875 Propylene dichloride (1,2-Dichloropropane)

      HAP 75569 Propylene oxide HAP 106445 p-Cresol HAP 91225 Quinoline HAP 106514 Quinone HAP 0 Radionuclides (including radon)

      HAP 0 Selenium compounds 62748 Sodium fluoroacetate 131522 Sodium pentachlorophenate 57249 Strychnine 3689245 Sulfotep 13494809 Tellurium 107493 TEPP (Tetraethyldithiopyrophos phate)

      1. 13071799 Terbufos 509148 Tetranitromethane - Thallium compounds 108985 Thiophenol (Phenyl mercaptan)

      HAP 8001352 Toxaphene (Camphechlor)

      HAP 121448 Triethylamine HAP 1582098 Trifluralin HAP 593602 Vinyl bromide HAP 75014 Vinyl chloride 81812 Warfarin 129066 Warfarin sodium 1314847 Zinc phosphide HAP 1120714 1,3-Propane sultone HAP 95807 2,4-Toluene diamine HAPs 132274 2-Biphenylol sodium salt HAPs 60153493 3-(N- Nitrosomethylamine)

      1. (Propionitrile)

      HAP 60355 Acetamide 7664417 Ammonia HAPs 115286 Chlorendic acid HAPs 108171262 Chlorinated paraffins (C12, 60% chlorine)

      HAP 510156 Chlorobenzilate (ethyl- 4,4'-dichlorobenzilate)

      HAPs 117102 Chrysazin (Dorbane)

      HAPs 2646175 CI Solvent Orange 2 1464535 Diepoxybutane HAP 64675 Diethyl sulfate 1642542 Diethylchlorophosphate HAP 60117 Dimethyl aminoazobenzene HAP 79447 Dimethylcarbamoyl chloride HAPs 2475458 Disperse Blue 1 HAP 51796 Ethyl carbamate (Urethane)

      HAP 75343 Ethylidene dichloride (1,1-Dichloroethane)

      1. 144490 Fluoracetic acid HAP 680319 Hexamethylphosphorami de 55914 Isofluorphate HAPs 64091914 Ketone, 3-pyridyl-3-(N- methyl-N-nitrosoamino)
         1. propyl 16752775 Methomyl 79221 Methyl chloroformate HAP 108101 Methyl isobutyl ketone (MIBK) (Hexone)

      HAPs 78988 Methylglyoxal HAP 108394 m-Cresol HAP 91203 Naphthalene HAPs - Nitrilotriacetic acid, Ca-, Na-, K salts HAP 59892 N-Nitrosomorpholine HAP 684935 N-nitroso-N-methylurea 23135220 Oxamyl HAP 95487 o-Cresol 732116 Phosmet HAP 85449 Phthalic anhydride 107448 Sarin 7664939 Sulfuric acid 77816 Tabun 110576 Trans 1,4-dichlorobutene HAP 71556 1,1,1-Trichloroethane (Methyl chloroform)

      HAP 540841 2,2,4-Trimethylpentane HAP 95954 2,4,5-Trichlorophenol HAP 53963 2-Acetylaminofluorene HAP 111762 2-Butoxyethanol HAP 92933 4-Nitrobiphenyl HAP 100027 4-Nitrophenol HAP 98862 Acetophenone 814686 Acrylyl chloride 54626 Aminopterin 78535 Amiton 3734972 Amiton oxalate 88051 Aniline, 2,4,6-Trimethyl 1397940 Antimycin A HAP 92524 Biphenyl 534076 Bis(chloromethyl)ketone 10294345 Boron trichloride 28772567 Bromodiolone HAP 63252 Carbaryl HAP 463581 Carbonyl sulfide 786196 Carbophenothion 470906 Chlorfenvinfos 24934916 Chlormephos 3691358 Chlorophacinone 1982474 Chloroxuron 21923239 Chlorthiophos 56724 Coumaphos 5836293 Coumatetralyl 535897 Crimidine 675149 Cyanuric fluoride 66819 Cyclohexamide 108918 Cyclohexylamine 919868 Demeton-s-methyl 10311849 Dialifor HAP 132649 Dibenzofurans HAP 84742 Dibutyl phthalate 149746 Dichloromethylphenylsila ne HAP 131113 Dimethyl phthalate 75183 Dimethyl sulfide (Methyl sulfide)

      1. 2524030 Dimethylphosphorochlori dothioate 99989 Dimethyl-p- phenylenediamine 644644 Dimetilan 1420071 Dinoterb 82666 Diphacinone 541537 Dithiobiuret 2778043 Endothion 13194484 Ethoprophos (Ethoprop)
         1. 2642719 Ethyl azinphos HAP 100414 Ethyl benzene (Phenylethane)

            538078 Ethyl bis (2- chloroethyl)amine HAP 75003 Ethyl chloride (Chloroethane)

            107153 Ethylene diamine 371620 Ethylene fluorohydrin HAP 107211 Ethylene glycol 542905 Ethylthiocyanate 122145 Fenitrothion 4301502 Fluenetil 7782414 Fluorine 640197 Fluoroacetamide 359068 Fluoroacetyl chloride 23422539 Formotanate hydrochloride 2540821 Formothion 17702577 Formparanate 21548323 Fosthietan 3878191 Fuberidazole 4835114 Hexamethylenediamine, N,N-dibutyl HAP 110543 Hexane HAP 123319 Hydroquinone 297789 Isobenzan 108236 Isopropyl chlorformate 625558 Isopropyl formate 119380 Isopropylmethylpyrazolyl dimethylcarbamate (Isolan)

            21609905 Leptophos HAP 108316 Maleic anhydride HAP 67561 Methanol (Methyl alcohol)

            2032657 Methiocarb 624920 Methyl disulfide HAP 78933 Methyl ethyl ketone (MEK) (2-Butanone)

            556616 Methyl isothiocyanate HAP 80626 Methyl methacrylate 3735237 Methyl phenkapton 78944 Methyl vinyl ketone (3- butene-2-one)

            315184 Mexacarbate HAP 1634044 MTBE (Methyl tertiary butyl ether)

      HAP 108383 m-Xylene 1122607 Nitrocyclohexane 991424 Norbormide HAPs 615532 N-nitroso-N- methylurethane 2497076 Oxydisulfoton - Ozone depleting compounds (CFC, etc.)

      HAP 95476 o-Xylene 79210 Peracetic acid HAP 108952 Phenol 64006 Phenol,3-(1-methylethyl)- methylcarbamate 947024 Phosfolan 13171216 Phosphamidon 110894 Piperidine 23505411 Pirimifos-ethyl 2631370 Promecarb 106967 Propargyl bromide HAP 123386 Propionaldehyde 140761 Pyridine, 2-methyl-5- vinyl 53558251 Pyriminil HAP 106503 p-Phenylenediamine HAP 106423 p-Xylene 60413 Strychnine sulfate HAP 100425 Styrene HAP 96093 Styrene oxide 7446119 Sulfur trioxide 297972 Thionazin (o,o diethyl-0- 2- pyrizinylphosphorothioat e)

      1. 79196 Thiosemicarbizide HAP 7550450 Titanium tetrachloride HAP 108883 Toluene HAP 79016 Trichloroethylene (TCE)
         1. 555771 Tris(2-chloroethyl)amine 2001958 Valinomycin HAP 108054 Vinyl acetate HAP 1330207 Xylene (and mixed isomers)

            28347139 Xylylene dichloride HAP - Lindane (all isomers of hexachlorocyclohexane)

            - Thallium compounds HAPs - Nitrilotriacetic acid, Ca-, Na-, K salts - Ozone depleting compounds (CFC, etc.)

      HAP 0 Antimony compounds HAP 0 Arsenic compounds HAP 0 Beryllium compounds HAP 0 Cadmium compounds HAP 0 Chromium compounds (incl. 6+ compounds, etc.)

      HAP 0 Cobalt compounds (as cobalt metal dust and fumes)

      HAP 0 Coke Oven Emissions HAP 0 Cyanide compounds HAP 0 Fine mineral fibers HAP 0 Glycol ethers HAP 0 Lead compounds (exept elemental lead)

      HAP 0 Manganese compounds HAP 0 Mercury compounds HAP 0 Nickel compounds (incl.

      1. nickel subsulfide)

      HAP 0 Polycyclic Organic Matter HAP 0 Radionuclides (including radon)

      HAP 0 Selenium compounds HAP 50000 Formaldehyde HAP 51285 2,4-Dinitrophenol HAP 51796 Ethyl carbamate (Urethane)

      HAP 53963 2-Acetylaminofluorene 54115 Nicotine 54626 Aminopterin HAPs 55185 N-Nitrosodiethylamine 55914 Isofluorphate HAPs 55981 1,4-Butanediol dimethanesulphonate HAP 56235 Carbon tetrachloride HAP 56382 Parathion 56724 Coumaphos HAP 57147 1,1-Dimethyl hydrazine 57249 Strychnine HAP 57578 Propiolactone, beta HAP 57749 Chlordane HAP 59892 N-Nitrosomorpholine HAP 60117 Dimethyl aminoazobenzene HAP 60344 Methyl hydrazine HAP 60355 Acetamide 60413 Strychnine sulfate 60515 Dimethoate HAPs 60571 Dieldrin HAP 62533 Aniline HAP 62737 Dichlorvos 62748 Sodium fluoroacetate HAP 62759 N-Nitrosodimethylamine HAP 63252 Carbaryl 64006 Phenol,3-(1-methylethyl)- methylcarbamate HAP 64675 Diethyl sulfate 66819 Cyclohexamide HAP 67561 Methanol (Methyl alcohol)

      HAP 67663 Chloroform (Trichloromethane)

      HAP 67721 Hexachloroethane HAP 68122 Dimethylformamide HAP 71432 Benzene HAP 71556 1,1,1-Trichloroethane (Methyl chloroform)

      1. 72208 Endrin HAP 72435 Methoxychlor HAP 74839 Methyl bromide (Bromomethane)

      HAP 74873 Methyl chloride (Chloromethane)

      HAP 74884 Methyl iodide (Iodomethane)

      1. 74931 Methyl mercaptan (Methanethiol)

      HAP 75003 Ethyl chloride (Chloroethane)

      HAP 75014 Vinyl chloride HAP 75058 Acetonitrile HAP 75070 Acetaldehyde HAP 75092 Methylene chloride (Dichloromethane)

      HAP 75150 Carbon disulfide 75183 Dimethyl sulfide (Methyl sulfide)

      HAP 75218 Ethylene oxide HAP 75252 Bromoform HAP 75343 Ethylidene dichloride (1,1-Dichloroethane)

      HAP 75354 1,1-Dichloroethylene (Vinylidene chloride)

      HAP 75445 Phosgene HAP 75558 1,2-Propylenimine (2- Methyl aziridine)

      HAP 75569 Propylene oxide HAP 76448 Heptachlor HAP 77474 Hexachlorocyclopentadie ne HAP 77781 Dimethyl sulfate 77816 Tabun 78342 Dioxathion 78535 Amiton HAP 78591 Isophorone HAP 78875 Propylene dichloride (1,2-Dichloropropane)

      HAP 78933 Methyl ethyl ketone

      1. (MEK) (2-Butanone)
         1. 78944 Methyl vinyl ketone (3- butene-2-one)

      HAPs 78988 Methylglyoxal HAP 79005 1,1,2-Trichloroethane HAP 79016 Trichloroethylene (TCE)

      HAP 79061 Acrylamide HAP 79107 Acrylic acid HAP 79118 Chloroacetic acid 79196 Thiosemicarbizide 79210 Peracetic acid 79221 Methyl chloroformate HAP 79345 1,1,2,2-Tetrachloroethane HAP 79447 Dimethylcarbamoyl chloride HAP 79469 2-Nitropropane HAP 80626 Methyl methacrylate 81812 Warfarin 82666 Diphacinone HAP 84742 Dibutyl phthalate HAP 85449 Phthalic anhydride 86500 Methyl azinphos 86884 ANTU (alpha- naphthylthiourea)

      HAP 87683 Hexachlorobutadiene HAP 87865 Pentachlorophenol 88051 Aniline,2,4,6-Trimethyl HAP 88062 2,4,6-Trichlorophenol HAP 90040 o-Anisidine 91087 2,6-Toluene diisocyanate HAP 91203 Naphthalene HAP 91225 Quinoline HAP 91941 3,3-Dichlorobenzidene HAP 92524 Biphenyl HAP 92671 4-Aminobiphenyl HAP 92875 Benzidine (p-Diamino diphenyl)

      HAP 92933 4-Nitrobiphenyl HAP 94757 2,4-D, salts and esters (2,4- Dichlorophenoxyacetic acid)

      HAP 95476 o-Xylene HAP 95487 o-Cresol HAP 95534 o-Toluidine HAP 95807 2,4-Toluene diamine HAP 95954 2,4,5-Trichlorophenol HAP 96093 Styrene oxide HAP 96128 1,2-Dibromo-3- chloropropane HAP 96457 Ethylene thiourea HAP 98077 Benzotrichloride HAP 98828 Cumene HAP 98862 Acetophenone 98873 Benzal chloride [(Dichloromethyl)benzen e; benzylidenechloride] HAP 98953 Nitrobenzene 99989 Dimethyl-p- phenylenediamine HAP 100027 4-Nitrophenol HAP 100414 Ethyl benzene (Phenylethane)

      HAP 100425 Styrene HAP 100447 Benzyl chloride, (Chloromethyl)benzene HAP 101144 4,4-Methylene bis (2- chloroaniline)

      HAP 101688 Methylene diphenyl diisocyanate (MDI)

      HAP 101779 4,4-Methylenedianiline HAP 106423 p-Xylene HAP 106445 p-Cresol HAP 106467 1,4-Dichlorobenzene HAP 106503 p-Phenylenediamine HAP 106514 Quinone HAP 106887 1,2-Epoxybutane HAP 106898 Epichlorohydrin (1- Chloro-2,3- epoxypropane)

      HAP 106934 Ethylene dibromide (1,2- Dibromoethane)

      1. 106967 Propargyl bromide HAP 106990 1,3-Butadiene HAP 107028 Acrolein HAP 107051 Allyl chloride HAP 107062 Ethylene dichloride (1,2- Dichloroethane)
         1. 107073 Chloroethanol HAP 107131 Acrylonitrile 107153 Ethylene diamine 107186 Allyl alcohol HAP 107211 Ethylene glycol HAP 107302 Chloromethyl methyl ether 107448 Sarin 107493 TEPP (Tetraethyldithiopyrophos phate)

      HAP 108054 Vinyl acetate HAP 108101 Methyl isobutyl ketone

      1. (MIBK) (Hexone)
         1. 108236 Isopropyl chlorformate HAP 108316 Maleic anhydride HAP 108383 m-Xylene HAP 108394 m-Cresol HAP 108883 Toluene HAP 108907 Chlorobenzene 108918 Cyclohexylamine HAP 108952 Phenol 108985 Thiophenol (Phenyl mercaptan)

            110009 Furan HAP 110543 Hexane 110576 Trans 1,4-dichlorobutene 110894 Piperidine HAP 111422 Diethanolamine HAP 111444 Dichloroethyl ether (Bis(2-chloroethyl)ether)

      HAP 111762 2-Butoxyethanol HAP 114261 Propoxur (Baygon)

      1. 115264 Dimefox HAPs 115286 Chlorendic acid 115297 Endosulfan 115902 Fensulfothion 116063 Aldicarb (Temik)

      HAPs 117102 Chrysazin (Dorbane)

      HAP 117817 Bis(2-ethylhexyl)

      1. phthalate (DEHP)
         1. (Dioctyl phthalate)

      HAP 118741 Hexachlorobenzene 119380 Isopropylmethylpyrazolyl dimethylcarbamate (Isolan)

      HAP 119904 3,3-Dimethoxybenzidine HAP 119937 3,3'-Dimethyl benzidine HAP 120809 Catechol HAP 120821 1,2,4-Trichlorobenzene HAP 121142 2,4-Dinitrotoluene HAP 121448 Triethylamine HAP 121697 N,N-Dimethlaniline (N,N-Dimethylaniline)

      1. 122145 Fenitrothion HAPs 122601 Phenyl glyceryl ether (3 phenoxy 1,2 propanediol)

      HAP 122667 1,2-Diphenylhydrazine HAP 123319 Hydroquinone HAP 123386 Propionaldehyde 123739 Crotonaldehyde (E)

      HAP 123911 1,4-Dioxane (1,4- Diethyleneoxide)

      1. 126987 Methacrylonitrile HAP 126998 Chloroprene (2-Chloro- 1,3-butadiene)

      HAP 127184 Perchloroethylene (Tetrachloroethylene)

      1. 129066 Warfarin sodium HAP 131113 Dimethyl phthalate 131522 Sodium pentachlorophenate HAPs 132274 2-Biphenylol sodium salt HAP 132649 Dibenzofurans HAP 133062 Captan HAP 133904 Chloramben (3-amino- 2,5-dichloro benzoic acid)
         1. 140761 Pyridine, 2-methyl-5- vinyl HAP 140885 Ethyl acrylate 141662 Dicrotophos 144490 Fluoracetic acid 149746 Dichloromethylphenylsila ne HAP 151564 Ethylene imine (Aziridine)

            152169 Diphosphoramide, octamethyl HAP 156627 Calcium cyanamide 297789 Isobenzan 297972 Thionazin (o,o diethyl-0- 2- pyrizinylphosphorothioat e)

            298000 Parathion-methyl 298022 Phorate 298044 Disulfoton HAP 302012 Hydrazine HAPs 309002 Aldrin 315184 Mexacarbate HAP 334883 Diazomethane 359068 Fluoroacetyl chloride 371620 Ethylene fluorohydrin HAP 463581 Carbonyl sulfide 465736 Isodrin 470906 Chlorfenvinfos 505602 Mustard gas (Dichlorodiethyl sulfide)

            509148 Tetranitromethane HAP 510156 Chlorobenzilate (ethyl- 4,4'-dichlorobenzilate)

      HAP 532274 2-Chloroacetophenone 534076 Bis(chloromethyl)ketone HAP 534521 4,6-Dinitro o-cresol, and salts 535897 Crimidine 538078 Ethyl bis (2- chloroethyl)amine HAP 540841 2,2,4-Trimethylpentane 541537 Dithiobiuret HAP 542756 1,3-Dichloropropene HAP 542881 Bischloromethyl ether 542905 Ethylthiocyanate 555771 Tris(2-chloroethyl)amine 556616 Methyl isothiocyanate 563122 Ethion HAP 584849 2,4-Toluene diisocyanate HAP 593602 Vinyl bromide HAPs 615532 N-nitroso-N- methylurethane HAP 624839 Methyl isocyanate 624920 Methyl disulfide 625558 Isopropyl formate 640197 Fluoroacetamide 644644 Dimetilan 675149 Cyanuric fluoride HAP 680319 Hexamethylphosphorami de HAP 684935 N-nitroso-N-methylurea 732116 Phosmet 786196 Carbophenothion 814686 Acrylyl chloride HAP 822060 Hexamethylene-1,6- diisocyanate 919868 Demeton-s-methyl HAPs 924163 N-Nitroso-di-n- butylamine 944229 Fonofos 947024 Phosfolan 950107 Mephosfolan 950378 Methidathion 991424 Norbormide HAP 1120714 1,3-Propane sultone 1122607 Nitrocyclohexane 1314847 Zinc phosphide HAP 1319773 Cresylic acid/Cresols HAP 1330207 Xylene (and mixed isomers)

      HAP 1332214 Asbestos HAP 1336363 Polychlorinated biphenyls

      1. (PCBs) (Aroclors)
         1. 1397940 Antimycin A HAPs 1402682 Aflatoxins 1420071 Dinoterb 1464535 Diepoxybutane 1563662 Carbofuran HAP 1582098 Trifluralin HAP 1634044 MTBE (Methyl tertiary butyl ether)

            1642542 Diethylchlorophosphate HAP 1746016 2,3,7,8-TCDD (Dioxin)

            1910425 Paraquat 1982474 Chloroxuron 2001958 Valinomycin 2032657 Methiocarb 2074502 Paraquat methosulfate HAPs 2475458 Disperse Blue 1 2497076 Oxydisulfoton 2524030 Dimethylphosphorochlori dothioate 2540821 Formothion 2631370 Promecarb 2642719 Ethyl azinphos HAPs 2646175 CI Solvent Orange 2 2778043 Endothion HAP 3547044 DDE (Dichlorodiphenyldichlor oethylene)

            3689245 Sulfotep 3691358 Chlorophacinone 3734972 Amiton oxalate 3735237 Methyl phenkapton 3878191 Fuberidazole 4098719 Isophorone diisocyanate 4170303 Crotonaldehyde 4301502 Fluenetil 4835114 Hexamethylenediamine, N,N-dibutyl 5836293 Coumatetralyl 7446119 Sulfur trioxide HAP 7550450 Titanium tetrachloride HAPs 7644410 1,4-Dichloro-2-butene HAP 7647010 Hydrochloric acid (Hydrogen chloride)

      HAP 7664393 Hydrogen fluoride (Hydrofluoric acid)

      1. 7664417 Ammonia 7664939 Sulfuric acid 7697372 Nitric acid HAP 7723140 Phosphorous 7726956 Bromine 7782414 Fluorine HAP 7782505 Chlorine 7783064 Hydrogen sulfide 7786347 Mevinphos HAP 7803512 Phosphine HAP 8001352 Toxaphene (Camphechlor)
         1. 8065483 Demeton 10265926 Methamidophos 10294345 Boron trichloride 10311849 Dialifor 13071799 Terbufos 13171216 Phosphamidon 13194484 Ethoprophos (Ethoprop)

            13494809 Tellurium 16752775 Methomyl 17702577 Formparanate 19287457 Diborane 20859738 Aluminum phosphide 21548323 Fosthietan 21609905 Leptophos 21923239 Chlorthiophos 22224926 Fenaminophos (Fenamiphos)

            23135220 Oxamyl 23422539 Formotanate hydrochloride 23505411 Pirimifos-ethyl 24934916 Chlormephos 28347139 Xylylene dichloride 28772567 Bromodiolone 53558251 Pyriminil HAPs 60153493 3-(N- Nitrosomethylamine)

            (Propionitrile)

      HAPs 64091914 Ketone, 3-pyridyl-3-(N- methyl-N-nitrosoamino)

      1. propyl HAPs 108171262 Chlorinated paraffins (C12, 60% chlorine)

REGULATION NUMBER 3 – PART D I.A. Adopted March 19, 1987 Statement of Basis, Specific Statutory Authority, and Purpose for Revisions to Regulation No. 3 Section II.C.1 The specific statutory authority under which the Commission shall hold and conduct this hearing is prescribed by 24-4-103, 25-7-105, -106, -110, and the hearing will be conducted in accord with provisions of 24-4-103 and 25-7-110, C.R.S. 1982 and the Procedural Rules. The revision to Regulation No. 3 Section II. C. 1. is an addition to the list of sources which are exempt from filing Air Pollution Emission notices. Addition of part 1. (small L) to this regulation exempts petroleum industry flares, approved by the Oil and Gas Conservation Commission, from having to file an Air Pollution Emission Notice (APEN) if emissions of any pollutant do not exceed five (5) tons per year. This exemption only applies to flares which do not combust gas containing hydrogen sulfide (H S) except in trace amounts, since H S is classified as a hazardous air pollutant. Previously APENS were required for these flares when emissions exceeded 1 ton per year.

The Air Quality Control Commission adopts this change for the following reasons:

1) Records of the amount of gas flared will be kept by the Oil and Gas Commission and made available to the Division;

2) The flaring is a temporary activity in most cases;

3) Statewide emissions from flares are relatively low, with nitrogen oxides (NO ) being the main pollutant x emitted (emissions of NO from flares is approximately 200 tons per year statewide, while total x stationary source No emissions are over 160,000 tons per year in Colorado); x 4) Ambient impacts from flares are low;

5) No hazardous pollutants will be emitted;

6) Larger flares will still have to be permitted by the Division. I.B. Adopted November 19, 1987 Statement of Basis, Specific Statutory Authority and Purpose Addition of Section XV to Air Quality Control Commission Regulation No. 3 Regulation Requiring an Air Contaminant Emission Notice, Emission Permit Fees This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirement of the Administrative Procedures Act, C.R.S. 1973, Section 24-4-103 (4) for adopted or modified regulations. This revision to Regulation No. 3, adopted November 19, 1987, is intended to bring the Colorado regulations into conformance with current U.S. EPA regulations. U.S. EPA's regulations were revised in response to a court order which required each state to develop a program to assess and remedy visibility impairment in Class I areas from new and existing sources, as established in Section 169A of the Clean Air Act.

Section XV. is added to Regulation No. 3 as part of the State's plan to meet the national goal of preventing future, and remedying existing, visibility impairment in Class I areas. Section XV. Together with this Statement of Basis, Specific Statutory Authority and Purpose and the monitoring and long-term strategies represents Colorado's State Implementation Plan (SIP). This Regulation addresses a type of visibility impairment which can be traced to a single source or small group of sources known as reasonably attributable impairment. The U.S. EPA deferred action on the regulation of regional haze and urban plumes due to scientific and technical limitations in visibility monitoring techniques and modeling methods.

The FLMs were consulted and their suggestions considered in developing the plan. In addition, the Commission provided public notice 60 days prior to the public hearing stating that interested parties would be given the opportunity to provide testimony concerning the Regulation and its requirements at the hearing. Wyoming, Utah and New Mexico were also sent notice of the hearing. Section XV.D. allows the FLMs to certify visibility impairment to the Division Director at any time. At such time of certification the Division must assess the impairment, identify the contributing source(s), and conduct a Best Available Retrofit Technology (BART) analysis for any contributing sources located in Colorado. The FLMs have not certified reasonably attributable impairment as of this adoption date. Section D. also requires BART and is incorporated for future use, if necessary. Any source subject to the BART requirements of this section may apply to the U.S. EPA Administrator for an exemption. The application to the U.S. EPA must include a written concurrence from the Division and Commission; therefore, the source must first apply to the Division, as set forth in Section D.2.c. An exemption granted by the Division and approved by the Commission will constitute the written concurrence required by U.S. EPA.

The New Source Review requirement of Section XV.E. is included for purpose of reinforcing Sections IV.D.2.a. (vi) and IV.D.3.a. (vi).

In addition to existing and new source review, the Division must develop a visibility monitoring strategy to collect information on visibility conditions and must develop a long-term (10-15 year) strategy to assure progress towards the national goal. The monitoring plan and the long-term strategy are set forth in the SIP submitted to the U.S. EPA. Section XV.F. provides procedures for reviewing and revising the long- term strategy.

1. State Implementation Plan for Class I Visibility Protection State of Colorado The purpose of this plan is to assure reasonable progress towards meeting the national goal of preventing future, and remedying existing, visibility impairment in Class I areas. The plan includes provisions for existing and new source review (attached as Regulation No. 3, Section XV.), a monitoring strategy, a long-term strategy, and consultation with FLMs. Monitoring Strategy The State of Colorado's Class I Visibility monitoring strategy is based on meeting four goals:

1. Provide information for new source visibility impact analysis;

2. Determine existing conditions, in Class I areas and the source(s) of any certified impairment;

3. Determine actual effects from the operation of new sources or modifications to major sources on nearby Class I areas; and 4. Establish visibility trends in Class I areas in order to evaluate progress toward meeting the national goals of visibility protection.

The goals will be achieved through a combination of objectives concerning monitoring, gathering and evaluating existing visibility data, and mechanisms for the use of visibility data in decision making. Potential new major stationary sources or major modifications to existing stationary sources subject to the Air Quality Control Commission (AQCC) Regulation No. 3, Section IV.3, are required to perform an analysis of visibility impacts on potentially affected Class I areas. The analysis must be conducted utilizing existing visibility data, if any. The Division must consider and evaluate available data from potentially affected Class I areas or other areas that may be representative of background conditions in the Class I area(s) of interest. If data is adequate, the permittee will be notified of the background or base level of visibility against which impacts will be assessed (Regulation No. 3, Section IV.3.(a)(iii)(D)). If visibility data is not adequate, Regulation No. 3, Section XIV. allows the Division to require any source which will have or is likely to have an impact on any Class I area to conduct monitoring to establish baseline status of visibility. The monitoring information will be used in the new source review analysis and will add to the background and trend data bank of that Class I area. No monitoring shall be required if it is currently being conducted by any federal, state, or local agency (AQCC Regulation No. 3, Section XIV.B.1). FLMs may at any time identify to the Division Class I areas where emissions from a specific source or small group of sources may be causing or contributing to visibility impairment in the Class I area. The Division will determine if emissions from any local sources can be reasonably attributed to cause or contribute to the documented visibility impairment. In making this determination the Division will consider all available data including the following:

1. Data supplied by the FLM;

2. The number and type of sources likely to impact visibility in the Class I area;

3. The existing emissions and control measures on the source(s);

4. The prevailing meteorology near the Class I area; and 5. Any modeling which may have been done for other air quality programs. The Division may be unable to make a decision regarding “reasonable attribution” of visibility impairment from an existing source or sources using available data. The Division will make available to the affected FLML and the U.S. EPA a discussion of what data was considered and what measures the Division is taking, if any, to resolve the situation. The Division may consider modeling the impact of nearby suspected sources with existing visibility models. Funding and other factors may limit the Division's ability to unilaterally initiate studies designed to establish “reasonable attribution”. Therefore, the Division may join with the FLMs, the suspected source(s), the U.S. EPA, and others in implementing special monitoring and analysis programs to address the specific problem.

The Division will sponsor or share in the operation of visibility stations with FLMs as the need arises and resources allow. Fiscal, logistical, and other considerations may constrain the Division in conducting visibility monitoring in Class I areas.

The Division will request from each FLM responsible for Class I areas in Colorado copies of any and all past or existing programs designed to monitor or evaluate visibility. All future visibility data gathered by each FLM will also be requested, including any analysis and interpretation. The Division will assemble and evaluate the visibility data supplied by the FLM in addition to any other data collected by the Division or any other appropriate source (such as a proposed major stationary source) on an annual basis.

Long-Term Strategy (LTS)

The Commission shall review the strategy set forth below and prepare a public report as required in Section XV.F. The FLMs shall be consulted throughout all phases of the LTS development and revisions. A Commission subcommittee will be established to address the following components of the LTS:

1. Statewide visibility standards 2. Smoke management 3. Vistas 4. PM and PM emissions 10 25 5. Any other components the subcommittee deems applicable. The Division is pursuing the adoption of statewide visibility standards. The subcommittee will determine how and if standards should be set and how the standards will apply to various areas of the state. Although the end result may apply to regional haze, Class I areas will benefit from statewide standards. The Division presently has smoke management agreements with the FLMs. The affected agencies are required to obtain an open burning permit from the Division. Virtually all controlled burns are for wildlife habitat and range management; little slash/timber management burning occurs. The Division believes existing smoke management techniques do not adversely affect visibility in Class I areas. The subcommittee will address this issue to determine how smoke management should be integrated into the LTS. If necessary, the existing agreements may be revised during the LTS review process. The Division will continue to coordinate with the FLMs to insure that best smoke management techniques are employed.

The FLMs declined to identify integral vistas (important views of landmarks or panoramas that extend outside of the boundries of the Class I areas and considered critical to the enjoyment of the areas). The Commission is therefore not required to address vistas but may do so under their own authority. The subcommittee shall determine if integral vistas and/or other scenic vistas should be identified, and if so, the criteria to be used for such identification. Any vistas shall be identified using the specific criteria developed by the subcommittee.

The Division is in process of studying PM emissions and their role in the formation of Denver's brown cloud. Conceivably, such studies could lead to information and strategies related to visibility impairment. The subcommittee will address the integration of this component into the LTS. The FLMs and Division have not identified reasonably attributable impairment at this time, therefore the Commission will not address source retirement and replacement, construction activities, and enforceability of emission limitations. Should the FLMs or Division identify impairment from a specific source or small groups of sources, the Commission will address these issues during the LTS review process.

Each time the LTS is reviewed, the following six factors (at minimum) must be addressed.

1. Emission reductions due to ongoing air pollution control programs.

2. Additional emission limitations and schedules for compliance.

3. Measures to mitigate the impacts of construction activities.

4. Source retirement and replacement schedules.

5. Smoke management techniques for agricultural and forestry management purposes including such plans as currently exist within the State for these purpose, and 6. Enforcement of emission limitations and control measures. Consultation with Federal Land Managers (FLMs)

The Division as part of the implementation of this Regulation will send within 30 days of its adoption written notification to the FLMs stating that the Division Director is the official to whom any recommendations may be sent regarding Colorado's SIP for Class I visibility protection, including but not limited to:

1. Integral vistas to be listed by the state;

2. Identification of impairment of visibility in any Class I area(s), and 3. Identification of elements for inclusion in the monitoring strategy. The Division will provide the opportunity for consultation with the FLMs, in person and at least 60 days prior to any public hearing on any element of the SIP. The Division is interested in the FLMs opinion regarding:

1. Assessment of impairment of visibility in any Class I area, and 2. Recommendation on the development of the long-term strategy. The FLMs may contact the Division Director at any time regarding the implementation of the SIP for Class I visibility protection.

I.C. Adopted August 20, 1992 Statement of Basis, Specific Statutory Authority and Purpose Revisions Concerning the Long-Term Strategy to Protect Visibility in Class I Areas (Section XV.F) Authority Colorado Air Quality Control Act The Colorado Air Quality Control Commission's (Commission) authority to revise Regulation No. 3.XV.F, concerning the Long-Term Strategy Review of Colorado's State Implementation Plan for Class I Visibility Protection, is in the Colorado Air Quality Control Act. Relevant sections are 25-7-102 Legislative declaration and 25-7-105(1)(a)(I) Duties of commission. Federal Clean Air Act Additional authority for the Commission to make the regulatory revisions can be traced to the 1977 Amendments to the Federal Clean Air Act. Section 169(A) requires the federal Environmental Protection Agency to promulgate regulations that in turn require states to amend their State Implementation Plans (SIPs) to provide for Class I visibility protection - including a long-term strategy for making reasonable progress toward the national visibility goal. On December 2, 1980, EPA released final regulations to states detailing the specific requirements - including the development and periodic revision of a long-term strategy as specified by federal law.

Statement of Basis and Purpose of Changes to Regulation No. 3.XV.F Section XV.F.1.c Commission Regulation 3 required a Long-Term Strategy (LTS) review/revision report from the Colorado Air Pollution Control Division (Division) to the Commission every three years following the effective date of the regulation (November 1987). The August 1992 LTS report from the Division is late in arriving to the Commission. The purpose of the regulatory change is to clarify when subsequent LTS review and revision report cycles will occur. Without a regulatory change, the next LTS review would be due September 1993 - approximately a year from adoption of the August 1992 report. In order to maintain the intent that a report is to arrive to the Commission, and ultimately EPA, at least every three years and to allow the Division to get back on schedule with a report to the Commission in approximately three years, section XV.F.1.c was altered. Old language:

(c) The Division shall prepare a report for the Commission on any progress made toward the national visibility goal since the last long-term strategy revisions. The report will be made available on September First of every third year following the effective date of this regulation. This report shall include an assessment of:

New language (changes underlined):

(c) The Division shall prepare a report for the Commission on any progress made toward the national visibility goal since the last long-term strategy revisions. The report will be made available by September First at least every third year following the submittal of the previous report. This report shall include an assessment of:

Section XV.F.1.c.vii EPA regulations (CFR Part 40 section 51.306) require that the LTS be reviewed in seven areas. There was a discrepancy between EPA requirements and State regulations regarding the seventh item to be assessed. The purpose of the regulatory change is to bring Commission Regulation No. 3 into conformance with EPA requirements.

Old language:

(vii) The progress achieved in developing the components of the strategy. New language (changes underlined):

(vii) The need for BART to remedy existing impairment in an integral vista declared since plan approval.I.D. Adopted November 19, 1992 I.D. Adopted November 19, 1992 Statement of Basis, Specific Statutory Authority and Purpose Revisions to Regulation No. 3, Common Provisions and Reguation No. 7 This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedure Act, C.R.S. 1973, Section 24-4-103(4) for adopted or modified regulations. Basis The EPA has identified portions of the State's Prevention of Significant Deterioration and New Source Review (PSD and NSR) rules which do not conform with the Federal rules. The State rules must be at least as stringent as the Federal rules in order for the EPA to approve the State Implementation Plans. In addition, the State must revise the rules to include the addition of new requirements that were set forth in the 1990 Federal Clean Air Act. The EPA has also identified additional nonreactive volatile organic compounds, and a significant level for municipal waste combustor emissions. All of these revisions must be made for EPA approval.

The 1992 State Legislature revised the Colorado Clean Air Act to include new definitions and fee requirements. In addition, the revisions allow the Commission to make necessary revisions to the State's PSD and NSR rules, as described above.

Specific Authority The specific authority for this regulation is contained in the Colorado Air Quality Control Act, 1992 as amended. Section 25-7-103 sets forth definitions for use in implementing the new Colorado Act. Section 25-7-105 (1)(A)(I) requires the Commission to adopt into the State Implementation Plan all requirements of the federal act. Sections 25-7-105(1)(c), 25-7-203, 25-7-204, 25-7-205, 25-7-206, 25-7-105 and 25-7- 301 provide authority to adopt a PSD and NSR program in conformance with the Federal and Colorado Acts. Section 25-7-105.1 sets forth the Commission's authority regarding Federal enforceability. Section 25-7-106 (1)(c) provides authority for adopting regulations which are applicable to entire state, or only within specific areas or zones, or only to a particular pollutant. Section 25-7-114.5 sets forth time frames for the Division to review permit applications, and procedures for owners and operators to demonstrate compliance with construction permits. Section 25-7-114.7 sets forth fee requirements. Commission action in promulgating these revisions is taken pursuant to Sections 25-7-105 through 25-7-109 and 25-7-114, C.R.S., as amended.

Purpose New Source Review Rules Regulation No. 3 contains the permit requirements for major sources (Prevention of Significant Deterioration, PSD and New Source Review, NSR). The Common Provisions Regulation contains definitions that are used in the permit requirements of Regulation No. 3. The PSD and NSR requirements and definitions must be equivalent to the Federal requirements. The EPA has identified the portions of Regulation No. 3 and the Commorr Provisions which do not conform to the Federal rules. On October 17, 1991, the Commission adopted revisions to Regulation No. 3 and the Common Provisions, to address some of the EPA's concerns. Additional concerns remained, however, because some of them could not be addressed until the Colorado Clean Air Act was revised. On May 27, 1992, the Governor signed Senate Bill 105, which revised the Colorado Clean Air Act to allow the Commission to proceed with the remaining necessary revisions to Regulation No. 3 and the Common Provisions. The new Colorado Act is effective as of July 1, 1992.

The 1990 Federal Clean Air Act revisions set forth additional revisions which must be made to all State PSD and NSR rules.

The Commission has adopted the necessary revisions which address the remaining EPA concerns regarding the State's PSD and NSR rules. These revisions are required to eliminate discrepancies between the State and Federal rules, and for approval of our State Implementation Plan. The required revisions are as follows.

Regulation No. 3

1. 1. The regulation previously allowed sources of fugitive emissions to be exempt from the NSR and PSD requirements. The Federal Act does not allow the exemptions. Several sections throughout the regulation needed to be revised or eliminated: Section I.E. - Eliminate the reference to the definitions of major stationary source and major modification from the definition of fugitive dust; Section I.B.3.e. and f - Eliminate the references to fugitive dust from the definition of major source;
   1. Section IV.D.3.b.(i)(B) - Eliminate the fugitive dust exemption from the PSD rules; Section XI - Eliminate the fugitive dust exemption from increment consumption requirements.
      1. 2. Section I.B.2, section (vii) of the regulation allowed sources which switched from oil or gas to a coal-derived fuel (shale oil) to be exempt from the PSD and NSR requirements. This is not allowed under the Federal Act, therefore (vii) is removed from the definition of major modification.
         1. 3. The new Federal Act requires major sources in nonattainment areas obtain to offsets from sources that are also located in the same nonattainment area, unless a source outside of the area contributes to nonattainment in the area in which the major source is located. Section IV.D.2.a(iii) is revised to add this new requirement.
         2. 4. The Federal Act does not allow major sources located in a “clean portion” of a nonattainment area to be exempt from the NSR requirements. Section IV.D.2.c.(ii) is revised to eliminate the clean portion of a nonattainment area exemption.
         3. 5. Section IV.D.3.e. required minor sources which contribute to the exceedance of an ambient air standard in a non-designated area (not designated attainment or nonattainment) to apply best available control technology. This requirement was previously adopted to comply with the EPA's interim policy for the PM-10 ambient air quality standards. The provision applied until the EPA was able to formally designate areas as attainment or nonattainment for PM-10. Now that the EPA has designated areas, the PSD and NSR (nonattainment) rules apply and section IV.D.3.e. has been removed.
         4. 6. The regulation previously stated that certain permit conditions had to be removed from the permit upon issuance of final approval. The conditions on a final permit were limited to the list of items required to obtain a permit. The Federal Act requires that permits must contain all conditions necessary to ensure compliance with all applicable requirements, and any conditions necessary to make limits on production rates, hours of operation, the potential to emit, etc. federally enforceable. The language which limits the enforceability of permit conditions after Final Approval is removed from Section IV.E.
         5. 7. The Federal Act does not allow automatic approval of permits if the State fails to meet processing deadlines. The language which provides for automatic approval of permits if processing deadlines are not met is removed from section IV.F. Likewise, confidentiality determinations do not affect the time constraints in the regulation. Section VII is revised to reflect this.
         6. 8. The new Federal Act does not allow reductions of pollutants required to meet any Act requirements to be credited for use as offsets. Language is added to Section V.E.9 of the State's Emission Reduction Credit rules to clarify this requirement.
         7. 9. The new Federal Act no longer limits the boundaries of Class I areas to those that existed in 1977. Section VIII is revised to eliminate this restriction.
         8. 10. The Federal rules state that if innovative technology is used by a PSD source, they are only exempt from the BACT requirements, not all of the PSD requirements, and that the consent of governors of other affected states must be obtained. Section XIII previously exempted such source from all PSD requirements. The section is revised to clarify this allowance.

Common Provisions Definitions:

1. 1. The EPA has added visible emission standards to applicable emission limitations under the definition of Best Available Control Technology. The State's definition is likewise revised.
   1. 2. Under the new Federal Act, Asbestos, Beryllium, Mercury, and Vinyl Chloride are now regulated under new hazardous pollutant requirements (Maximum Achievable Control Technology). These compounds are no longer subject to Prevention of Significant Deterioration (PSD) requirements (which would require Best Available Control). The definition of significant, which determines when a source is subject to PSD, is revised to omit these pollutants.
      1. 3. The Federal rules do not allow an exemption from PSD and NSR rules for right of ways, pipelines, etc. The definition of stationary source is revised to delete this exemption. Non-Reactive VOCs:

On March 18, 1991, the EPA added five halocarbon compounds and four classes of perfluorocarbons to the list of organic compounds which are negligibly reactive, and thus exempt from regulation as Volatile Organic Compounds under Regulation No. 3, the Common Provisions, and Regulation No. 7. In addition, the EPA revised the definition of Volatile Organic Compound. The Non-reactive Volatile Organic Compound (VOC) list, as amended by the EPA, is incorporated into Regulation No. 3, Section IV.D.4, the Common Provisions (definition of Net Emission Increase, paragraph h.), and Regulation No. 7, Section II.B. The State is not allowed to take credit for controlling these compounds in our SIP. In other words, sources cannot use reductions of emissions of these compounds to offset VOC emissions, and we are not allowed to include emissions of these compounds in our SIP inventory. The EPA has determined that these compounds do not react in the atmosphere to produce ground level ozone.

The EPA also revised the definition of “Volatile Organic Compound” to make slight clarifications. The definition in the Common Provisions and in Regulation No. 7, Section II.A.1. is likewise revised. Municipal Waste Combustor Emissions Significant Level:

On February 11, 1991, the EPA promulgated New Source Performance Standards for Municipal Waste Combustors. In addition, the EPA promulgated “significant emission levels” for municipal waste combustor emissions. These significant levels are used to determine if PSD requirements apply to major sources. The Commission revised the definition of “Significant” in the Common Provisions Regulation, to add the emission level for municipal waste combustor emissions. This addition is required in order to conform with the Federal PSD and NSR rules.

Senate Bill 92-105 Revisions Senate Bill 105 revised the Colorado Clean Air Act. The new Colorado Act contains some new and revised provisions which are relatively simple and straightforward, and which could therefore be easily adopted into Regulation No. 3 and the Common Provisions at this time. These particular revisions were adopted to facilitate transition from the old Act to the new Act, and to eliminate confusion that could occur due to differences between the new Act and the existing regulations. The proposed revisions are as follows.

Regulation No. 3

1. 1. Sections IV.B.3, 4 and 5 - The new Act gives the Division 60 days (instead of the previous 20 days) to determine if an application is complete. In addition, the Division has 12 months to complete the application process for PSD construction permit applications (previously limited to 135 days).
   1. 2. Section IV.C.1.c - Change the reference date for the definition of hazardous pollutant. A new definition has been adopted in the new Act. The definition includes the list of 189 chemicals from the Federal Act, and an additional list contained in the Colorado Act.
      1. 3. Section IV.H - Change the procedures for granting of final approval construction permits. Previously, the Division had only 30 days once a source commenced operation to inspect the source to determine that all permit conditions were being met. The source now has 180 days to demonstrate compliance. Also previously, the Division could allow a source additional time to come into compliance before Final Approval was issued. Now the division must grant Final Approval or revoke the permit.
         1. 4. Section VI - The new Act sets forth new fee schedules for permits, annual fees, and APENS. The permit fees have changed from a schedule based on the type of facility to $50 per hour for all applications. The Division cannot exceed 30 hours in processing time unless the applicant is first notified that 30 hours will be exceeded. The annual fees are no longer based on the number of sources at, or the size and complexity of a facility. Instead annual fees are based on actual emissions. The APEN fee has changed from $60 to $75 for fiscal year 92.

Common Provisions

1. 1. Section I.C - Incorporates the new Legislative Declaration of the new Act. The new declaration adds to the existing declaration that an accurate emission inventory is necessary for implementation of the air quality requirements.
   1. 2. Incorporates the new Acts definition of Air Pollutant. The definition is the same as previous except that precursors are now also considered to be “air pollutants.” Precursors can be emissions such as nitrogen and sulfur oxides which can contribute to particulate matter emissions.
      1. 3. Revise definition of Emission Control Regulation. The new definition is the same, except such regulations can now include work practices and design, equipment, and operational standards. In addition, such regulations which apply to hazardous pollutants must be consistent with the new Act requirements concerning hazardous pollutants.
         1. 4. Revise definition of Federal Act to reference 1990. (Previously referenced 1977.) 5. Revise the definition of Federally Enforceable to indicate that the Division has authority to issue permits to synthetic minor sources.
         2. 6. Revise definition of Hazardous Air Pollutant. The new definition includes the pollutants listed under the Federal and Colorado Acts.
         3. 7. Refers to Adverse Environmental Effect, therefore this definition is added.
         4. 8. Add definition of Ozone Depleting Compound. The fee schedule requires the Division to charge fees for emissions of such compounds, therefore the definition is added.I.E. I.F. Adopted June 22, 1993 Statement of Basis, Specific Statutory Authority and Purpose Revisions to Regulation No. 3 regarding Construction Permits This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedure Act, C.R.S. 1973, Section 24-4-103(4) for adopted or modified regulations. Basis The Colorado Clean Air Act requires stationary sources to report their emissions, obtain construction permits, and be subject to public notice before construction occurs. The Commission has authority to exempt sources from these requirements, if the sources do not have a significant adverse impact on air quality. Regulation No. 3 has been in effect for approximately twenty years, and contains exemption lists for APEN and permit requirements. Based on twenty years of experience, the Commission believes it is appropriate at this time to revise the exemption lists to include additional sources which do not adversely affect air quality in Colorado. In addition, it is appropriate to revise the public notice requirements to address the sources for which is public comment is most likely to be received. The 1992 State Legislature revised the Colorado Clean Air Act to include new provisions concerning non- criteria pollutants. The Commission needs to address these provisions and revise the APEN reporting, permitting, and public notice requirements regarding these pollutants. A technical revision must be made to the definition of “significant,” contained in the Common Provisions, to address major sources in nonattainment areas, as required under the Federal Act. Specific Authority The specific authority for this regulation is contained in the Colorado Air Quality Control Act, 1992 as amended. The Legislative Declaration, Section 25-7-102, recognizes that an accurate emission inventory is needed in order to adequately manage air resources in Colorado. Section 25-7-105 (1)(A)(1) requires the Commission to adopt into the State Implementation Plan all requirements of the federal act. Sections 25-7-105(1)(c), 25-7-203, 25-7-204, 25-7-205, 25-7-206, 25-7-210 and 25-7-301 provide authority to adopt a PSD and NSR program in conformance with the Federal and Colorado Acts. Section 25-7- 105(12) provides authority to adopt regulations to implement the emission notice and construction permit programs. Section 25-7-106 (1)(c) provides authority for adopting regulations which are applicable to the entire state, or only within specific areas or zones, or only to a particular pollutant. Section 25-7-109.3 provides authority for regulating non-criteria pollutants. Section 25-7-111 provides authority for the Division to administer regulations adopted by the Commission. Section 25-7-114.1 provides authority for requiring APENS, and for allowing exemptions from the requirement. Section 25-7-114.2 provides authority for requiring construction permits, and for allowing exemptions from the requirement. Section 25- 7-114.5 provides authority for requiring public notice of construction permits. Commission action in promulgating these revisions is taken pursuant to Sections 25-7-105 to -109 and 25-7-114, C.R.S., as amended.

Purpose Definition of “Significant”

The Common Provisions Regulation contains definitions that are used in the Prevention of Significant Deterioration (PSD) and New Source Review (nonattainment, NSR) permit programs of Regulation No. 3. The PSD and NSR requirements and definitions must be equivalent to the Federal requirements. The definition of significant lists emission levels at which modifications at major sources become subject to the PSD and NSR requirements. Currently, the language in the definition indicates that the emission levels only trigger PSD requirements. The definition is changed to indicate that the levels also apply to the NSR nonattainment rules.

APEN Requirements - General This language is revised to clarify what emission estimates must be included in an APEN (actual emissions for annual fee purposes, and requested amount for permit limits). In addition, language is added to clarify that a source need not perform a stack test for the sole purpose of providing an APEN emission estimate. Other acceptable estimation methods are usually available for APEN purposes. In some instances, it is possible that an emission factor may supply a more accurate estimate than mass balance calculations, and vice versa. In such cases, a source may choose to use either mass balance, or emission calculations. If the Division believes that estimates can be better made using the method of these two that the source does not choose, the Division may question that source regarding the choice. The emission estimate included in an APEN is not required to be an exact calculation of emissions, but rather the source's best estimate, to the extent practical, of emissions. As stated in the Legislative Declaration of the Colorado Air Quality Control Act, the APEN information is to be used to achieve the most accurate and complete inventory possible, and to provide for the most accurate enforcement program achievable based upon that inventory.

The Colorado Clean Air Act states that APENs are valid for five years, unless a significant change in emissions occurs. This provision is added to the regulation. Language is added to clarify that each unit is considered to be a “source” for APEN purposes, unless similar sources can be grouped together.

Emission calculations for purposes of determining if a de minimis emission level is triggered will be based on actual uncontrolled emissions. Sources will not be allowed to take credit for control devices in the de minimis calculation because the Commission has no method of determining if the control equipment will be used, or used continuously and properly.

The Commission believes there may be cases where the source demonstrates that it is not feasible to estimate the control efficiency of a device for non-criteria pollutants. In such instances, the Commission gives the Division discretion to allow the de minimis level to be triggered based on actual, instead of uncontrolled actual, emissions. New language is added regarding non-criteria pollutant APEN requirements.

Revised APEN Requirements The Colorado Act requires revised APENs to be submitted whenever a “significant change” in emissions occurs. The significant levels for criteria pollutants remain unchanged from the previous regulation, except that a significant level has been added for lead emissions. For non-criteria pollutants, the significant change level is set at 50% or five (5) tons per year, whichever is less. Sources should note that APENs must be submitted if the source begins to emit a pollutant which was previously not included on an APEN. Also, the Commission may add pollutants to the list of non-criteria reportable pollutants. When chemicals are added, the Commission will determine the schedule for submitting new or revised APENs to report the new pollutant emissions. NOTE: Significant change criteria are used to report changes in emissions for inventory purposes only. If a planned change in emissions requires a new permit, or modification of an existing permit (violates an emission limit, triggers PSD or NSR), then an APEN must be filed and the permit must be revised before the change at the facility occurs.

Revised APENs for emission updates must be submitted by April 30 of the following year. The EPA requires states to update the emission inventory by July 1 of each year, to include the previous year's emissions (Code of Federal Regulations, 40 CFR 51.321). The Commission believes the April 30 date should give sources enough time to compile their inventory, and will also give the Division enough time to update the system by July 1. Sources should plan ahead and have as much of their inventory completed as possible before the end of the year. In this way, the source would then only need to add December, or at worst information for the last couple of months of the year, to the data in order to meet the April 30 deadline.

Revised APENs are required when a change in the type of control equipment being used is made. This allows the Commission to ensure that the new control equipment will meet the applicable requirements, and to verify that actual emissions have decreased or increased due to the use of the new equipment. Oftentimes, stack tests are required to ensure that control equipment meets applicable requirements. A change in the control equipment can affect this compliance determination. Revised APENs will not be required for routine maintenance, repair and replacements. These routine activities should not affect the effectiveness of the equipment.

Permit applications must include an APEN on which the owner or operator indicates what production or emission level the source wishes to be permitted at. Any desire to increase the permitted emission level requires the submittal of a revised APEN, so that the Division can evaluate the change against the regulations before modifying the permit.

Portable Facilities Revised APENs are no longer required when a portable source changes location. The Commission does not believe it is reasonable to charge the APEN filing fee each time a source moves. Portable sources will still be required to notify the Division at least ten (10) days before relocating. This allows the Division to be aware of a source's location if any concerns regarding the source are raised by the public. Emergency and Backup Generators Electric utilities may use emergency or backup generators to ensure that blackouts do not occur in the electrical grid. These units are usually operated instead of, or for short periods in addition to, main utility boilers. Facilities which include the main boilers are usually major sources, and therefore have a major source construction permit, or will in the future have a major source operating permit. Once the facility is covered under one of these permits, the Commission sees no need for the owner or operator to submit annual updates regarding the emissions from the emergency units. Other emergency units are not located at the main unit facility, but are located individually in the field. These units will most likely obtain a synthetic minor permit to avoid major source permit requirements, since operation is usually intermittent. Once such sources obtain a synthetic minor permit, the Commission again will not require the source to submit annual emission updates. APEN Requirements - Non-Criteria Pollutants There are 363 non-criteria reportable pollutants. The Commission divided the pollutants in two major groups: those that are required to be reported in 1993, and those that have to be reported in 1994 and subsequent years. There are also two groups of chemicals (Radionuclides and Polycyclic Organic Matter) whose reporting requirements were postponed until such time as the Commission determines that they can be accurately quantified and reported.

APEN Requirements - De Minimis Levels All de minimis levels are based on uncontrolled actual emissions (except where the control efficiency cannot be estimated), as discussed above under General APEN Requirements. APENs are required of sources in attainment areas when the emissions of any criteria pollutant from a source exceed two tons per year (except for lead).

Sources in nonattainment areas must file when emissions of any criteria pollutant exceed one ton per year. Note that the pollutant being emitted above the de minimis level does not have to be a nonattainment pollutant. Any pollutant triggers the one ton per year level, regardless of the pollutant's attainment designation.

Because the area is a growth area, and inversions occur in the area, a Grand Junction group requested that APENs be filed when emissions of any criteria pollutant exceed one ton per year. The Commission determined that hearings should be held in the Grand Junction area, and that Grand Junction should pursue their own rules. Language which would have treated Pueblo likewise is not included, due to requests from industries in Pueblo, and the Pueblo County Health Department. The de minimis level for lead in all areas is 100 pounds per year. For non-criteria pollutants, the Commission assigned each pollutant to one of three “bins” based on information concerning the health effects of the pollutant. The Commission also developed a series of three scenarios for an emission point based on the release height of the pollutant and the distance from the release point to the property boundary. The resulting three by three grid as well as instructions on how to apply it can be found in Appendix A. Note that future actions by EPA may effect the de minimis reporting levels for certain chemicals that appear on the EPA list of 189 toxic chemicals. APEN Requirements - Exemption List Numerous new source categories have been added to the APEN exemption list. Each category was examined for its impact on air quality in Colorado before being added to the list. Each category which was added is believed to have a negligible impact on air quality. The source category exemptions override the de minimis levels. Sources which fit into the category are exempt, even if emissions exceed the de minimis levels. Each category will not be addressed individually in this statement, however the following categories deserve specific comment.

Fires and equipment used for cooking of food for human consumption: Not all cooking equipment has been exempted in this category. The Commission has concerns regarding equipment in which grease from the food being cooked comes into contact with the flame of the equipment, thus leading to potential opacity and particulate matter problems. This is especially of concern in PM-10 nonattainment areas. This exemption applies only to noncommercial cooking and to food service establishments, such as restaurants and cafeterias. The exemption does not apply to manufacturing facilities. Fuel burning equipment: The design rate cutoff for fuel burning equipment has been raised from 750,000 BTU/hour to 5 MMBTU/hour. The fuel use is still restricted to gas, and does not include oil or coal, since the latter two fuels may result in significant sulfur dioxide emissions. Fuel burning equipment which uses gaseous fuel and which is used solely for building heat is exempt if the design rate is below 10 MMBTU/hour. The Commission has determined that the emissions from the exempted unit, based on EPA AP-42 emission factors, are negligible.

Chemical storage areas where chemicals are stored in closed containers...: This exemption only applies to the storage of chemicals at qualifying facilities. The exemption does not include facilities where chemicals are loaded into or out of, or transferred between, storage containers. Bulk storage tanks would not qualify for this exemption, since often the material is loaded and unloaded, and such tanks have vents from which emissions occur due to breathing losses. See sections II.D.1.n., ee., uu., ddd. and fff. for storage tank exemptions.

The Commission will require APENs only for pollutants which are defined as “criteria” pollutants or “reportable non-criteria” pollutants (HAPs, CFCs, SARA 313). Any other pollutants such as carbon dioxide, methane, nitrogen, oxygen, do not require APEN submittals. Aerosol Can Usage: There may be instances where a source may exclusively use large amounts of aerosol cans, or may use large amounts in addition to other processes. The Commission expects that these instances will be rare. If the Division, a local agency, or others discover such a source, and if the source emits amounts of pollutants which are believed not to be negligible, such concern can be brought before the Commission as a request to require such source to file APENs and/or obtain a permit. (See discussion under “Adding and Deleting Exemptions,” below) Odorous emission sources: This exemption only applies to odor emissions, and not to any other emissions of criteria or non-criteria pollutants which may be associated with the odor. This exemption does not absolve any source from the requirements of Regulation No. 2 (regarding odor limits). If a source emits any pollutant which is above an APEN de minimis level, the source must file an APEN, regardless of odor.

Portable 5 mmbtu/hour engines: One party requested that these sources be exempt from APEN and permit requirements. The Commission has determined that sufficient evidence is not available to indicate that emissions from these sources have a negligible impact on air quality in Colorado, therefore they are not exempt until such evidence is forthcoming.

Laboratory equipment and pilot plants: The subcommittee for these rule revisions held extensive discussions regarding exemptions for laboratory equipment and pilot plant activities. More work is needed to define these activities, determine if the emissions are negligible, and if such activities should be exempt from APENS, permits, or both. The Commission recommends that subcommittee discussion of this issue continue, and that it be addressed when Regulation No. 3 is revised to include the Title V operating permit rules (currently scheduled to occur in July of 1993).

Adding and Deleting Exemptions The Commission has delegated authority to the Division for adding source categories and activities to the APEN and permit exemption lists. If any person believes that a source category or activity should be removed from the exemption lists, because it is discovered that emissions have an impact on air quality or health that is not negligible, such person may at any time go before the Commission to request that such source category or activity be required to file APENs and/or obtain permits. Oil and Gas Exploration Activities Oil and gas exploration activities are activities for which it is difficult for the owner or operator to estimate what emission equipment will be required, and therefore what emissions will occur, until the exploration activities are already underway, and near completion. For this reason, the Commission has extended a temporary exemption from APEN and permit requirements for such activities. Before commencing exploration activities, the source must notify the Division. In this way, the Division is aware of the activities and will be able to address any concerns that are raised by the public. Once an owner or operator has determined that an oil or gas well will be produced, and has filed well completion information, the owner or operator must file an APEN and a permit application within 30 days of that completion filing. The permit application must indicate what regulations are applicable to the source, and how compliance will occur, until the construction permit is issued. This helps the source and the Division to ensure that air pollution regulations are being met. If the well will not be produced, the source must notify the Division so that the Division does not expend resources following up on unproduced wells. APEN Reporting Deferrals for Source Categories Due to ongoing studies aimed at quantifying their emissions of non-criteria pollutants, the Commission has deferred APEN reporting requirements for five source categories until six (6) months after the studies have been completed or December 31, 1994, whichever is earlier. The categories are industrial boilers, municipal wastewater treatment plants, publicly owned water treatment plants, municipal power generators of less that ten (10) megawatts which operate for 250 hours or less per year, and natural gas glycol dehydration units. The EPA is conducting studies regarding the first four categories. The oil and gas industry is conducting studies to quantify emissions from dehydration units. This study is currently underway and is expected to be completed in the near future. In addition, sources which are not undergoing study, but which believe sufficient information is not available for estimating their non-criteria pollutant emissions, may petition the Division for deferral of those emissions until sufficient information is available. HAP Permit Requirements Of the 363 non-criteria pollutants/compounds, 330 are defined as hazardous air pollutants (HAPs). Sources emitting HAPs are required to obtain permits if they are subject to Colorado MACT or GACT or the Federal Title III or Title V provisions.

Synthetic Minor HAP Sources Some parties to the hearing requested that sources which emit HAPs be allowed to avoid future Maximum Achievable Control Technology (MACT) and operating permit requirements by obtaining “synthetic minor” permits. These permits would contain federally enforceable limits which would keep emissions below the levels which trigger the MACT and operating permit requirements. The Colorado Act appears to restrict synthetic minor permits to criteria pollutants only. The subcommittee recommended that this issue be deferred to the HAP subcommittee which will meet in the near future to address Colorado MACT and other HAP issues. Synthetic minor permits for HAP sources are therefore not addressed in this revision.

Permit Transfer of Ownership The party to which a permit is issued, whose name is included on the permit, is legally responsible for ensuring that all conditions and terms in the permit are met. The permit must contain the correct legal name, reflecting the correct responsible party, in case an enforcement action needs to be taken. In some cases, the legal name of a company may change, while no modifications are made to the equipment. In such cases, the source need only file a single APEN indicating the change. In all cases, the Division must have on file an application and APEN form with the correct name of the responsible party, and including the signature of the person legally responsible for the information. Permit Requirements - De Minimis Levels Permit de minimis levels for criteria pollutants have been increased. Levels differ based on the attainment status of the area. As for the APEN de minimis levels, the nonattainment area levels are triggered by any pollutant, not just the nonattainment pollutants.

Language which would have set permit levels for the Grand Junction area lower than the levels for attainment areas was not adopted. See discussion above under APEN de minimis levels. Emissions are compared against the de minimis levels by adding emissions from all sources at the facility which are required to file and APEN. In some cases, a source may initially be below the de minimis levels, but as new units are added to the facility, the de minimis level is eventually exceeded. At such time that addition of new units causes the permit de minimis level to be exceeded, the source must file a permit application for all units at the facility.

Permit de minimis levels for sources of HAPs will be set at the time that the MACT or GACT for that source category is determined.

Permit Requirements - Exemption List A few new source categories have been added to the permit exemption list. As for APENs, the source category exemptions override the de minimis levels.

Domestic wastewater treatment works: This exemption applies only to treatment facilities which handle wastewater strictly from domestic homes, or wastewater that is similar in nature. It does not include facilities which treat wastewater from municipalities or other sources. The facility may be publicly or privately owned. Wastewater other than domestic wastewater, including municipal wastewater, may contain contaminants from industry and other sources which would result in emissions which are much more significant than the emissions from domestic wastewater. Fuel burning equipment: Fuel burning equipment with a design rate less than 10 MMBTU/hour, using natural gas as a fuel, are exempt from permit requirements because this is the rate at which the New Source Performance Standard for small boilers is applicable (Regulation No. 6). Surface Mining Activities: 70,000 tons per year is the production rate at which the Mine Land Reclamation Bureau exempts mining operations from MLRB permit requirements. Oftentimes, these small operations are only temporary, in order to provide material for highway construction projects. The source has often ceased operation before an Air Pollution Control inspector can visit the source to determine compliance. Crushers, screens and other processing equipment are not exempt because these activities may be subject to specific air quality emission limit regulations. Applicable Requirements Override APEN and Permit Exemptions To ensure that sources comply with all applicable air quality regulations, an APEN or permit exemption may not be used if taking the exemption would allow a source to avoid any air quality regulation requirements. This provision applies to the source category exemptions and to the de minimis level exemptions. For example, a source may not claim that it is exempt from permit requirements because it has numerous sources which are below a de minimis level, if the potential emissions from those sources would exceed the PSD major source limit of 100 or 250 tons per year. In such a case, the source would be required to apply for a PSD permit, or must obtain a permit to limit its potential to emit. In order to limit potential to emit, the permit must contain federally enforceable conditions which limit the physical or operational capacity of the source so that emissions are below the 100 or 250 ton per year level. Sources which are subject only to the opacity or general fuel burning and manufacturing requirements of Regulation No. 1 may take any applicable exemption. Likewise, sources which are subject to the general RACT requirements (but not the specific RACT requirements) of Regulation No. 7, and sources which are subject to the current Regulation No. 8 provisions, may take any applicable exemptions (i.e., they are exempt if their emissions are below de minimis levels). RACT for sources which would qualify for the APEN exemptions is usually “no control.”

Similarly, sources which are subject only to Regulation No. 1 opacity, general fuel burning, and general manufacturing requirements are exempt from permit requirements. Sources which are subject to Regulation 7, but which must adopt only work practice standards, are exempt from permit requirements if their emissions fall below the de minimis level (two tons per year of VOC). Sources which are subject to State-only requirements of Regulation No. 8 are exempt from permit requirements. Regulation No. 1, 7 and 8 sources which take APEN or permit exemptions must still meet the regulation requirements, even though an APEN or permit is not required. The provisions which would apply to these sources are fairly straight forward and can therefore be easily enforced by the Commission through the regulation, without requiring a permit.

Public Notice Requirements The criteria pollutant emission level at which a source in an attainment area must go to public notice has been increased from 25 to 50 tons per year (except for lead). In nonattainment areas, the level remains at 25 tons per year. Lead sources are required to go to public notice when the emissions exceed 200 pounds per year. The Commission has determined that raising these levels will not impact the number of public comments the Division receives. Any source requiring a permit for HAPs is required to go to public notice.

Note that Section IIV.C.3 provides that the Division may require any source to be subject to public comment, if it is determined that such source warrants public comment. The EPA requires that all sources subject to PSD or NSR go to public comment. In addition, in order to make limits on potential to emit federally enforceable, permits containing such limits must go to public notice. At this time, the Commission will use this section to ensure the EPA requirements are met. Language will be added to clarify these requirements when the next revision to Regulation No. 3 occurs (currently scheduled to occur in July of 1993).

I.F. Adopted July 15, 1993 Statements of Basis, Specific Statutory Authority, and Purpose Revisions to Regulation No. 3 This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedure Act, C.R.S. 1973, Section 24-4-103(4) for adopted or modified regulations. Basis The 1990 Amendments to the Federal Clean Air Act requires states to implement an operating permit program. This program is applicable to certain sources, and requires the sources to obtain detailed permits which are to be renewed every five years.

Failure of a state to implement an operating permit program will result in EPA sanctions, such as loss of highway funds and increased offset requirements for sources wishing to locate in Colorado nonattainment areas. In addition, the EPA may implement the operating permit program if a state fails to implement a program.

The existing construction permit program will continue to exist, however changes have been made to the program so that the two permit programs (construction and operating) compliment each other. Specific Authority The specific authority for this regulation is contained in the Colorado Air Quality Control Act, 1992 as amended. Section 25-7-105(1)(A)(I) requires the Commission to adopt into the State Implementation Plan all requirements of the federal act. Sections 25-7-105(12) provides authority to implement the operating permit provisions of Title V of the Federal Act. Section 25-7-105.1 sets forth federal enforceability provisions. Section 25-7-106(6) provides authority for monitoring, recordkeeping and reporting requirements, Section 25-7-109.3 provides authority for regulating hazardous air pollutants (HAPs). Section 25-7-111 provides authority for the Division to administer regulations adopted by the Commission. Section 25-7-114.1 provides authority for requiring APENS, and for allowing exemptions from the requirement. Sections 25-7-114.2 through 114.5 set forth construction and operating permit requirements, and application and public participation requirements. Commission action in promulgating these revisions is taken pursuant to Sections 25-7-105 to -109 and 25-7-114, C.R.S., as amended. Purpose NOTE: Subcommittee documents which discuss the issues and decisions regarding this regulation in detail, and provide fact sheets for various provisions, are available at the Division and Commission offices.

I. Operating Permit Program:

A. Who is subject to the Operating Permit Program? 1. Definition of Air Pollutant Sources with potential to emit* 100 tons per year of any air pollutant must obtain an operating permit (these sources are referred to as ‘major sources”). For purposes of the operating permit program, air pollutant means any pollutant for which an ambient air quality standard has been set (and their precursors), any pollutant which is regulated under the New Source Performance Standard regulations (NSPS, Regulation No. 6), any Class I or Class II ozone depleting compound, and any hazardous air pollutant (all HAPs listed in either the Federal or Colorado Acts). The Commission has determined that it is not appropriate to use the Colorado Act definition of air pollutant for operating permit purposes. The Act defines air pollutant as being any substance emitted to the ambient air, except for water vapor. Since many substances occur naturally in ambient air, and others will never be subject to any air regulations, operating permits are not needed for emissions of such pollutants.

Major sources of any air pollutant as defined for operating permit purposes must obtain an operating permit, even if no specific standard has been set for the particular air pollutant (see further discussion under “regulated pollutant,” below).

2. Major HAP Sources Sources which have potential to emit 10 tons per year or more of a single HAP or 25 tons per year or more of a combination of HAPs are considered to be “major sources,” and must obtain an operating permit, even if no standard for the HAP has yet been set. Major sources of Colorado HAPs must obtain an operating permit. Permit conditions related to Colorado HAPs will be treated as state only conditions (see further discussion below). *See definition of potential to emit, Part A of this regulation. Potential emissions are calculated assuming the source operates continuously, at full design rate, using no pollution control equipment. See additional information and details in subcommittee papers (Group D, Synthetic Minors Issue Paper and Fact Sheet).

3. Fugitive Emissions Fugitive emissions must be included when determining if a source is major for HAPS. Fugitive emissions must be included when using the 100 ton per year threshold (to determine if the source is major) if the source is listed, or if the source and pollutant is subject to any NSPS or Title III regulation. Fugitive emissions must be included as required for the Prevention of Significant Deterioration (PSD) and nonattainment new source review (NSR) programs.

The Commission has not included language which exempts fugitive dust sources from the major source definitions at this time. Further investigation is occurring regarding HAP emissions from such sources, and discussions with EPA will continue to determine how to treat such sources. Once these activities are completed, the Commission will consider this issue.

4. Applicability Determinations Sources are ultimately responsible for determining if they are subject to operating permit requirements. The Small Business Assistance Program is available to assist small businesses in understanding the requirements, in determining applicability, and in complying with the requirements. No “applicability determinations” are available for other sources. The Division must recover the cost of implementing the operating permit program. Time spent reviewing informal requests for applicability determinations would not be recovered. Sources who believe they are subject to the operating permit program should file an application. During the sixty day completeness determination, if the Division discovers that the source is not subject to the operating permit requirements, the source will be notified. In addition, if the source has obtained a construction permit, it will most likely have been determined then if an operating permit is required. Also, preapplication meetings with the Division are available to sources. All time spent by the Division in reviewing applications will be charged to the source.

5. Synthetic Minor Sources Existing sources are subject to the operating permit requirements. Some existing sources may want to obtain federally enforceable limits on their production rates or hours of operation, or emission limits in order to avoid the operating permit requirements (known as synthetic minor sources because such limits are needed to make them minor). Construction permits can be obtained to keep emissions below the major source thresholds. Some existing sources do not have construction permits. Others may have construction permits which do not currently limit emissions below the major source thresholds. Sources may avoid the operating permit requirements by obtaining an emission-limiting construction permit before they are required to apply for operating permits. Sources must obtain a synthetic minor construction permit before the November 1994 due date, or before one year after EPA program approval, whichever applies (see discussion below). If a synthetic minor permit is not obtained before the applicable date, an operating permit application must be submitted.

The Division will review all existing construction permits over a period of time as resources allow, to determine if the existing permits are federally enforceable. In the interim, the Division will assume that all previously issued construction permits are federally enforceable. New sources may likewise obtain synthetic minor construction permits before they construct in order to avoid the operating permit requirements. All synthetic minor permits must go to public notice in order to be federally enforceable (see discussion below).

“Once in always in” does not apply to the operating permit program (however it does apply to the PSD program). If a major source has an operating permit and reduces its emissions below major source levels, the source may apply for a synthetic minor permit in order to cease being subject to operating permit requirements.

6. Minor Source Exemption The EPA allows states to give minor sources subject to existing New Source Performance Standards (NSPS) a five year deferral from the operating permit requirements. Within five years of the approval of any State program, the EPA will determine if the deferral should be extended further, or if some or all minor sources should be permanently exempt from operating permit requirements. If the EPA first approves any State program in November of 1994, this means that minor sources may be exempt until November of 1999. The EPA will decide if minor sources subject to new MACT or GACT (Maximum or Generally Available Control Technology) standards and NSPS should be exempt on a case by case basis as the new rules are promulgated.

The Commission has exempted existing minor NSPS sources from the operating permit program at this time. New NSPS and MACT standards will be adopted by the Commission as EPA promulgates them, and at such time the Commission shall determine operating permit applicability.

7. Voluntary Operating Permits Any source which is not required to obtain an operating permit (minor sources) can request an operating permit, if desired. An operating permit allows minor sources to obtain the operational flexibility and permit shield provisions allowed in the operating permit program (note, however, that most of the operational flexibility provisions are available under the construction permit program, see discussion under construction permit program section). The operating permit will replace the source's construction permit. A construction permit is a SIP requirement, and conditions in the construction permit are federally enforceable (except for state only conditions). All conditions in the operating permit must therefore be federally enforceable. Operating permits which are issued to sources voluntarily applying will be subject to all of the operating permit procedural requirements (public notice, EPA review, etc.) B. When are operating permit applications due? 1. Existing Sources The federal act allows states to phase in processing of existing source applications over a three year period. One third of the applications must be acted upon within each year after EPA approves the state's program. The program will be submitted to the EPA by November 15, 1993. The EPA has one year to approve the program, therefore the Division must begin processing applications beginning November 15, 1994.

The Commission has directed the Division to divide the existing sources into thirds. One third of the existing sources must submit their operating permit applications by November 15, 1994. The Division will use the new APEN information to identify the first third, and will notify the first third by November 15, 1993. The first third will consist of the least complex sources. The least complex sources should find it easier to prepare their operating permit applications, and the Division should find it easier to process these applications first. The Division will be able to identify any problems with the review procedures, etc. during the first year.

NOTE: The Division cannot issue an operating permit until the EPA has approved the program and is thus ready to begin receiving permits for review. The Division will therefore “hold” applications processed during the first year until the EPA is ready to accept them for review. Once EPA has reviewed and approved the permits, the permits can be issued.

The remaining existing source applications will be due one year after the EPA approves the state's program. The Division will provide notice of the EPA approval date and sources are responsible for submitting their applications on time.

The Division must determine if each application is complete within 60 days of receipt. This may not be possible during the three year phase in, as many applications will be received at once. The Division will make its best effort to make the completeness determination for all permits within 60 days. If the Division fails to do this, the application shield applies, and the Division cannot enforce against the source for failure to have a complete application on file. The Federal rule provides, however, that the Division has the authority to ask for additional information at any time during the process, and to set a reasonable date by which the information must be submitted. If the source fails to submit the additional information by the due date, the application shield no longer applies. The Commission is confident that under these provisions sources and the Division can effectively work together to ensure that applications are processed in a timely fashion.

2. New Sources and Relationship to the Construction Permit Program New sources which wish to locate in Colorado must obtain a construction permit, or a combined construction/operating permit before commencing construction. The source may choose to obtain a construction permit or a combined permit.

Sources which choose to obtain a construction permit must apply for a construction permit according to the provisions of Part B of this regulation. Once a construction permit is obtained, the source can commence construction and begin operating. Within 180 days of commencing operation the source must undergo a “final approval” inspection to demonstrate that all permit conditions are being met. Within 12 months of commencing operation, the source must apply for its operating permit. Once a complete operating permit application is submitted, the source can continue to-operate under its construction permit until it receives its operating permit.

Sources which choose to obtain a combined construction/operating permit must apply for such permit before commencing construction. The application for a combined permit must contain all of the required information for an operating permit. The Division will issue the permit, which will essentially be an operating permit. The source can then commence construction and operation. Within 180 days of commencing operation, the source must demonstrate compliance with all permit conditions (this 180 day requirement will be a permit condition, and the appropriate hourly processing fee will be charged for the associated inspection). The source continues to operate under its operating permit and no further action is required until permit renewal.

The procedures for obtaining construction permits are not as intense as those required to obtain an operating permit. More extensive public and EPA participation is required in the operating permit process. In addition, more information and requirements must be incorporated into an operating permit than into a construction permit. Nevertheless, it may be advantageous for sources to combine the processing of these two types of permits in order to avoid duplication of effort. The advantage of a combined permit is that an additional application step is avoided. Sources should note, however, that an operating permit application requires more specific information regarding compliance monitoring, recordkeeping, etc., than a construction permit application. Sources which choose to obtain an operating permit before construction must be able to supply all of the required information for a complete operating permit application.

Sources which choose to obtain an operating permit before construction will be subject to the operating permit timeframes for processing instead of the shorter construction permit timeframes. Construction permit applications can take up to 90, 135, or 365 days, depending on type and size of source. Operating permit applications can take up to 540 days. Construction permits require public notice and opportunity for comment only for sources emitting more than 25 or 50 tons/year of any criteria pollutant, and requires opportunity for public hearing for Prevention of Significant Deterioration (PSD) sources only. The operating permit program requires public notice and opportunity for hearing for all sources. If the programs are not combined, a source may have to undergo public notice twice, once under each process. PSD sources may have to undergo public hearings twice. The EPA only reviews certain applications and draft permits under the construction permit program, and usually does so during the public comment period. The EPA is allowed 45 days to review draft operating permits near the end of the process, and then the Division has 90 days to revise the permit, if necessary. Sources should consider carefully their confidence in their ability to operate as expected or planned after construction before choosing to obtain a combined permit.

3. Application Shield Once a source has submitted a complete operating permit application the source is protected from enforcement action for operating without an operating permit, and can continue to operate until the operating permit is issued.

Sources which submit an application for a combined permit may not construct the source until they receive their combined permit.

C. What must be addressed in operating permit applications and permits? 1. Configuration and Grouping of Sources Total emissions at an entire site (including fugitive emissions at listed and HAP sources) must be considered to determine if a source is subject to the operating permit requirements. Once a source is subject, however, the owner or operator may choose how many operating permits to obtain for the source. A single permit may be issued for the entire source, or individual permits may be issued for individual units, buildings, processes, etc. For example, research and development activities may be permitted separately from the rest of a facility, in order to take full advantage of the operational flexibility provisions for constantly changing research and development activities. In addition, portions of a source could be covered under general permits. See discussions below under operational flexibility and general permits.

The configuration for operating permits may, but is not required to, conform with the way in which a source chooses to file APENS. For example, a source may file separate APENs for all of the units at its facility, but a single operating permit can be obtained. Similarly, a source may file grouped APENs for similar units at its facility, and the operating permit could contain a general statement that the types of units exist at the facility, and could then state what the applicable requirement and associated monitoring, recordkeeping and reporting requirements are for that group of sources. The permit does not have to list the requirements separately, and the monitoring, recordkeeping and reporting requirements can be tailored to meet the needs of the source and the Division for that group of sources. SPECIFIC EXAMPLE: Numerous degreasers are located throughout a facility which is located in the ozone nonattainment area (metro-Denver). A grouped APEN is filed for all of the degreasers. Since Regulation No. 7 applies to the degreasers, they must be addressed in the operating permit. The operating permit choices are: 1) obtain an operating permit for the degreasers only, separate from the rest of the facility; 2) obtain a single permit for the whole facility, and include a general statement/applicable requirement condition as described above for the degreasers; 3) obtain more than one operating permit for the facility, placing the degreasers in whatever permit(s) the owner or operator chooses. The Commission believes substantial flexibility is available for issuing operating permits that the source can most efficiently deal with, while still meeting the Clean Air Act requirements.

2. “Regulated Pollutants”

Once subject to operating permit requirements, a major source must include all applicable requirements and emission units in their application and must address each “regulated pollutant” associated with the source (except for insignificant activities, see below). The definition of regulated pollutant is to be used strictly for determining what must be addressed in an operating permit once a source is required to obtain the permit. The definition of regulated pollutant has nothing to do with the definition of major source. (See discussion above, regarding the definition of air pollutant).

Pollutants to be addressed in the application include each pollutant for which an ambient standard has been set (and precursors to such standards, such as volatile organic compounds), ozone depleting chemicals (CFCs), any pollutant subject to a standard under regulation No. 6, and any pollutant subject to a standard under the HAPs requirements (including Colorado HAPs). “Regulated HAPs”

Note that a HAP must be subject to a standard before the applicant is required to address it in the permit application. Once the EPA adopts a MACT standard for a particular HAP, all sources, even those not subject to the particular MACT standard, and even those not in the source category, must address that HAP in applications. In cases where the Commission or Division determines MACT on a case-by-case basis because the EPA has not, the HAP becomes regulated only for the particular source subject to the case-by-case standard. Once the EPA promulgates the list of 112(r) (accidental release) pollutants, those pollutants will be considered to be “regulated” for all sources. Fees The definition of regulated pollutant contained in Part A of this regulation is not used for fee purposes. The Colorado Act specifically sets forth which pollutants are to be assessed fees, and the fee pollutants are set forth in section VI of Part A. A pollutant does not need to be subject to a standard before the Commission can assess fees.

3. Insignificant Activities Once subject to operating permit requirements, a major source must include all applicable requirements and emission units in their application and must address each “regulated pollutant” associated with the source except for activities which the Commission has determined are “insignificant.” This regulation sets forth to what extent each activity or piece of equipment at a facility needs to be fully described and included in an operating permit.

The Commission has tailored the insignificant list after the Air Pollution Emission Notice (APEN) and construction permit exemptions, to promote consistency and reduce confusion. The lists are repeated in Part C of the regulation, for convenience. The activities and sources listed in the APEN and construction permit exemption sections are considered to be insignificant activities, with two exceptions. The lower APEN emission de minimis levels are used instead of the higher construction permit de minimis levels for insignificant activity purposes. Since the permit de minimis levels apply to the facility, the Commission does not believe it is appropriate to use the permit levels. The APEN 5 MMBTU per hour boiler design rate is controlling, rather than the higher 10 MMBTU per hour permit boiler exemption. All boilers with design rates greater than 5 MMBTU per hour must be addressed in the application and operating permit. Exemptions based on emissions, size or production rate must still be listed in the permit. Enough information must be submitted in the application just to identify the equipment as qualifying for an exemption. An asterisk appears next to each activity listed in Part C which must be listed in the application.

Applications do not have to list activities which are exempted based on category. Applications cannot omit information needed to determine the applicability of, or to impose any applicable requirements on a source. In addition, the exemptions cannot interfere with fee determinations. Since the mechanism used to assess fees is the APEN and not operating permits, this should not pose a problem for purposes of insignificant activities.

The Commission has added APEN exemptions for research and development and laboratory activities. The exemptions apply to small research and development facilities, and to lab activities which the Commission has determined have a negligible impact on air quality in Colorado. Owners and operators of research and development facilities which are subject to APEN reporting are expected to report emissions from samples received from clients for evaluation, but only to the extent the information is available. The Commission believes that facilities which accept material for evaluation should have some responsibility and knowledge regarding what is being accepted.

Research and development facilities may continually change the types of projects under investigation, therefore the control efficiency of equipment may not always be known. The Commission has determined that research and development facilities may base APEN reporting thresholds on actual instead of uncontrolled actual emissions. In addition, since owners and operators of such facilities do not always know in advance what projects will be undertaken, the Commission has allowed such sources to report emissions after the fact, in annual APEN updates to the inventory. Research and development activities are prime candidates for the types of operational flexibility allowed in this regulation (see discussion below). The Commission encourages research and development activities to use the operational flexibility provisions. Some of the activities were described in the Statement of Basis and Purpose for the Commission's May 1993 Regulation No. 3 hearing. Parties to this hearing have asked for clarification regarding some of the provisions.

The emission levels for triggering APEN reporting requirements are based on uncontrolled actual emissions. The Commission recognizes that in some cases, “uncontrolled” emissions is not easily defined. For example, the uncontrolled emissions from a degreaser may be subject to interpretation. The emissions from this type of operation depend on how often it is used and how fast objects are cleaned in the unit. Uncontrolled emissions could possibly mean that a person is standing at the degreaser using the machine continually, and as rapidly as is humanly possible. The Commission recognizes that calculation of emissions for this and similar operations involves some judgement, and will take into consideration reasonable assumptions used in determining uncontrolled emissions. The exemption for land development (less than 25 acres in size and 6 months in duration) applies to all land clearing activities, such as preparation of land for housing development, or preparation of land for oil and gas activities to occur.

As stated above, insignificant activity exemptions cannot be used if it, would result in an applicable requirements being avoided. The EPA requires all applicable requirements to be addressed in operating permits. Similarly, APEN and construction permit exemptions cannot be taken if an applicable requirement would be avoided. The Commission has given certain sources an exemption from the applicable requirement provisions, for APEN and construction permit purposes. For example, a source which is subject to Regulation No. 7, but not to a specific source category requirement of regulation No. 7 (i.e. the source is subject only to a case by case RACT determination), may take the APEN exemption based on the 1 ton per year de minimis level. The Commission has determined that RACT for such small sources is usually no control. For construction permits, a source may take an exemption if it is subject solely to a work practice standard of Regulation No. 7. For example, degreasers used in the ozone nonattainment area (metro-Denver) are subject to a specific section of Regulation No. 7, which requires covers and proper operation. Degreasers in the nonattainment area are subject to a specific section of the regulation, therefore they must file APENs, however since the section only requires work practice standards, no permit is required if the emissions are below the permit de minimis levels. It should be noted that since an applicable requirement exists, the degreaser and associated work practices must be addressed in the operating permit. Degreasers in the rest of the State are exempt from APEN and permit requirements if they are below the de minimis levels. Note that the EPA is required to set Maximum Achievable Control Technology (MACT) limits for degreasers in 1994. When the Commission adopts the MACT standards for degreasers, all degreasers subject to the MACT standard will be required to file APENs and obtain permits.

4. Inapplicability Determinations Operating permits must list all applicable requirements and must state how continuous compliance with the requirements will be demonstrated. The source is provided with protection from enforcement as long as each permit condition and compliance requirement is met (known as the permit shield). The source may wish to obtain enforcement protection for regulations which do not apply. In such cases, the application must identify which regulations do not apply to the source. These regulations will then be identified in the permit, and the permit shield will apply. This protects the source in the event that a mistake is made and the regulation really does apply to the source. The source is protected from enforcement action until the permit can be reopened and the correct requirements inserted.

5. Application Form and Checklist Operating permit applications must contain a lot of complex information, including identification of all applicable (and inapplicable, if the permit shield is to apply) requirements. This can be a daunting task for the applicant. The Commission has directed the Division to develop checklists for use by the applicant. One checklist will identify all data that must be included in an application. Another checklist will identify all air regulations. The applicant can use the latter checklist to identify which regulations apply to their source, and which don't.

The State must submit an application form to the EPA along with the operating permit regulations. The Commission has directed the Division to develop an application form, taking into account suggestions and comments from the public.

6. SIP Equivalency The Commission has determined that it is appropriate to allow sources to set forth procedures in their permit that will show that a SIP limit is being met through methods that are equivalent to, but do not exactly follow, procedures set forth in the SIP.

For example, suppose a source is required to meet a volatile organic (VOC) compound limit by using a coating that does not contain more than a certain amount of VOC. The source could propose to meet the limit by some other means than using such a coating. Their application would set forth quantifiable, replicable, accountable procedures that would show that they could still meet the limit even though they would not be using the required coatings. Such procedure could consist of using control equipment, or using a combination of complying and noncomplying coatings for which the average emissions would meet the VOC limit. Monitoring, recordkeeping and reporting procedures would be set forth in the permit. The procedures must be sufficient to show continuous compliance with the underlying applicable requirement.

This procedure allows sources to show compliance through alternative methods without having to go through the Commission and the EPA for a case by case SIP revision. The EPA would review the process during its 45 day review period. The public would have opportunity for comment and hearing. NOTE: This procedure overrides the requirement in Regulation No. 7, which states that all such alternatives will undergo a case by case SIP revision.

7. 112(r) (Accidental Release) Requirements Operating permits must address any requirements established under Title III (hazardous air pollutants) of the Federal Act, except that the accidental release plans required under section 112(r) do not have to be incorporated into the permit. The permit must merely state that the source is required to submit a plan to the appropriate entity. The Commission can take enforcement action against a source for failure to submit a plan. Enforcement action cannot be taken for failure of the source to meet any of the requirements contained in the plan.

8. Compliance Monitoring Operating permits must contain monitoring sufficient to demonstrate compliance with the applicable requirements. Methods and procedures may be set forth in the applicable requirements. If methods and procedures in the applicable requirement are insufficient to demonstrate compliance, the operating permit must “fill the gap” by specifying appropriate methods. Compliance methods may be as simple as recordkeeping, or may require continuous monitoring equipment. The source must state in their application how they will demonstrate compliance. The Division reviews this proposal and agrees with it or recommends something else. The Common Provisions provides the Division with the authority to require monitors. The Division has used, and will continue to use, best engineering judgement to determine when monitors are necessary and feasible. The Commission has determined that in some instances it may be appropriate to require continuous emission monitors, even in cases where the applicable requirement does not specify monitors, and that sufficient opportunity for discussion and appeal are available to the source, therefore monitors can be required even if the applicable requirement does not specifically require monitors.

The EPA is in process of developing and promulgating their enhanced monitoring rules. These rules may speak specifically to continuous monitoring. The Commission will take into account this new rule and determine if the operating permit monitoring requirements should be revisited once the EPA rule is promulgated.

By January 1994, the EPA will publish a list of existing rules which do not contain sufficient monitoring or recordkeeping methods, and will develop criteria that could be used to determine what is sufficient. After the rules are identified, the EPA will proceed to revise the rules to make them sufficient. The need for “gap filling” will then decrease.

9. Compliance Certifications Each operating permit application must be accompanied by a “compliance certification” indicating that all information presented is true and accurate. The certification must be signed by a “responsible official,” usually a CEO, of the company. Likewise, compliance certifications must be submitted every six months, indicating the compliance status of the source. Such certifications must also be signed by the responsible official. The burden is on the source owner or operator to ensure that all permit conditions are addressed in the certification, and all information is complete and correct. The Commission's definition of “responsible official” allows delegation of responsible official authority to plant managers under certain conditions, including prior approval from the Division.

10. Recordkeeping and Reports The operating permit must contain all recordkeeping necessary to ensure compliance with the applicable requirements. The Federal Act requires such data to be maintained for five years. The Commission has determined that sources need not keep a full five years of data on site for inspection review. Instead, sources are required to make immediately available to the Commission or Division data for the past year, along with the compliance certifications for the past five years. The actual data for the remaining four years must be provided to the Commission or Division within 48 hours of request. Monitoring data must be reported at least every six months. The Commission will allow sources flexibility in determining what records are appropriate, and in determining the schedule for reporting, in order to allow coordination with other reporting requirements (such as Community Right To Know, etc.). Such flexibility is allowed provided the requirements of the Clean Air Act are met.

Malfunctions and emergencies - The Commission has adopted the Federal provisions for emergency and malfunction protection, except that sources are required to provide oral notice within two hours of the next working day, and written notice with one month after the emergency occurs. Past experience indicates that sources will most likely not be able to meet the EPA's recommended two day written notice. The Commission does not include continuous monitor malfunctions in the emergency provisions. The emergency provisions serve to provide an absolute defense if an applicable requirement is violated. Since the Commission cannot tell if a source is in or out of compliance with an applicable requirement when monitors malfunction, it is not appropriate to include monitor malfunctions in the emergency provisions. Monitor malfunctions which would violate provisions which set specific operating conditions and specifications for the monitor, however, could be granted the emergency protection for those specific performance conditions, if such malfunctions were due to unforeseen circumstances and reported as set forth in the emergency provisions. The Commission has determined that extra protection for monitor malfunctions is not warranted, as procedures and specifications for monitors include performance requirements which take into account the inherent operational fluctuations and abilities of the monitors. Sources must report any exceedances of standards which are not due to malfunctions or emergencies “promptly.” The Commission has determined that including such deviations in the six month monitoring report is sufficient. This will not impair the Division or Commission's authority to assess penalties regarding the deviation.

Public Availability of Reports: Copies of all reports and compliance certifications will be made available at the local health departments. As always, such information is available at the Division offices.

11. State-Only Conditions Certain Commission regulations are not part of the State Implementation Plan, and therefore are not federally enforceable. The Commission has given sources the option of including state only conditions in operating permits, or of maintaining such conditions in a separate construction permit. This option is available for all state-only conditions except those pertaining to major Colorado HAP sources. Major Colorado HAP sources are required by statute to obtain an operating permit. “State-only” conditions will be listed separately from federal conditions in operating permit. (Sources which are major for federal HAPs must obtain an operating permit, and provisions pertaining to the federal HAPs are federal, not state conditions.)

Since the operating permit is meant to be used as an all-encompassing document for sources and the Division, the source may want to refer to only one document to determine what needs to be done to remain in compliance. If the conditions are included in an operating permit, the source may choose whether or not to have the permit shield, operational flexibility, and other operating permit allowances and requirements apply to the conditions.

State-only conditions do not have to undergo the same procedural requirements as other operating permit conditions. Affected state and EPA review is not required. Currently, the following regulations are state-only requirements: odor Regulation No. 2, municipal waste combustor Regulation No. 6, Part B. Future Colorado MACT/GACT standards will be state-only requirements.

12. Confidentiality Applicants are allowed to classify certain information as being confidential in terms of product or processes. In no case may emission information be kept confidential, and in no case may compliance certifications be kept confidential.

Records and reports may be kept confidential, however, instances where this will be allowed will most likely be rare, since emissions data or information related to emissions data may not be kept confidential. The current confidentiality provisions and procedures remain in effect, however the Commission has directed the Division to examine the provisions and procedures and to recommend improvements.

D. How Long Does It Take To Obtain the Permit? 1. Completeness Review The Division has sixty days from receipt of an application to determine if all information necessary to process the application are included. If the application is incomplete, the Division must notify the source and request the additional information. Additional information must be submitted by the applicant within a reasonable amount of time. Once a complete application is received, the Division must act on the application within 18 months. The Division must analyze the application, prepare the permit, and ensure that all of the procedural steps as set out below are met. Once all requirements are met, the Division will send the source its fee letter, and will not issue the permit until all applicable processing fees are paid. The fee letter must be sent within 18 months of receipt of a complete application.

2. Public Notice and Hearing Once the Division analyzes the application and prepares a draft permit, the permit and application must undergo a thirty day public notice. If a hearing is requested during the public notice, thirty day notice of the hearing must be provided, and the hearing must occur within sixty days of the notice. The Commission has provided an opportunity for sources to respond to any public comments received. This source response in no way affects the Division's time constraints for issuing the permit, nor does it affect the permit which the Division ultimately issues.

3. Affected State Review During the public notice, a copy of the draft permit will also be sent to any affected, nearby states, for their review.

4. EPA Review Once public notice and hearing are completed, the Division will make any necessary revisions to the draft permit, and will submit a proposed permit to the EPA for their review. The EPA has 45 days to review the permit. The Division then has up to 90 days to make any necessary revisions to the permit to address EPA concerns, before the permit can be issued.

5. Copies of Application The applicant must provide a sufficient number of copies of the application for submittal to the EPA, affected states and public notice, including copies for County Commissioners.

E. Renewals 1. Renewal Application Content Operating permits must be renewed every five years. Renewal applications must undergo all of the review procedures (public notice, EPA review) as the initial operating permit. Applicants may incorporate by reference any previous application material or permits for portions of the operation which will not change from the initial application. The renewal application may only address operations which will change and which will require new permit terms or conditions. Copies of all material incorporated by reference must be included with the renewal application. All material must be provided for public comment, affected state review, and EPA review.

2. Renewal Application Due Date The federal rule states that permitting authorities should be able to process “90%” of renewal applications within six months. The federal rule does not mandate that states process renewals within six months. The rule gives states flexibility to require applications for renewals, and specifically states that other times may be approved, which are necessary to issue the permit before it lapses. The application can be due as soon as 18 months before expiration, and as late as six months. Renewed permits must be issued before the old permit expires.

As described above, the public comment, hearing notice, hearing, EPA review, and revision periods required in the Federal rule take up 220 days, or approximately seven and a half months. The time allotted for these activities is fixed in the Acts and rules (except for the time allowed for States to revise draft permits, based on EPA review). The amount of time for actual review of the application itself varies depending upon the type of application. A breakdown of the allotted times follows: Public Notice: 30 days Hearing: 60 days EPA Review: 45 days Division Response: 90 days TOTAL 220 days Two hundred and twenty (220) days is the minimum required. No time is allotted for revising the permit between each step as necessary, nor for transmitting the permit from one step to the next. The 220 days is required for public notice and EPA review only, it does not include any time for the Division to actually review the application and draft a permit.

Sources are allowed to seek judicial review if a permit is not issued in time. This could potentially result in wasted Division and court resources dealing with an impossible situation. In addition, the EPA may determine that the program is not adequate if the Division continually fails to issue renewed permits before expiration. Finally, if permits are not issued in time, the EPA can revoke and reissue permits, or can terminate the permits, in which case the source's right to operate ceases. Given that the notice and review procedures alone take 220 days, and the allowed flexibility, and the requirement that renewed permits be issued before expiration, the Commission has determined that it is not reasonable to allow renewal applications to be submitted as late as six months before expiration. Nine months may be adequate if hearings are not requested for such renewals, however, no one can predict how many applications will or will not require public hearing. It would not make sense to accept applications only six or nine months before expiration, knowing that if a hearing is requested, the new permit will not be issued before expiration. The twelve months will give the Division sufficient time to review the application, and in addition, will give the source some time to ensure that they have submitted a complete application before the permit expires. Sources are allowed to update their applications up to the time a draft permit is issued for public notice. This will allow sources a chance to address any last minute market considerations or changes in their application. The Division will send written notice of the need to apply for a permit renewal to permittees six months prior to the date a renewal application is due. This notice is to aid permittees, and the failure of the Division to provide notice to any individual permittee is not contended to be used as a defense for the failure to apply for a permit renewal.

As sources and the Division gain experience with the new operating permit program, the Commission and the Division will determine if the timeframe for renewals can be shortened. The first renewals will not be due until the year 2000.

F. Reopenings Operating permits must be “reopened” during the term of the permit if new regulations become applicable to the source, if a mistake is found in the permit, or if additional measures need to be incorporated to ensure compliance with applicable requirements. A permit is reopened to address only the new requirement or correction, not to address the entire permit. The Division must give the source 30 days notice before reopening the permit. Reopenings must undergo all of the same procedures and requirements as the original permit (notice, EPA review, etc.). The Commission will allow sources the option to reopen an entire permit instead of just the necessary portion. This would require, however, that a source be able to submit a complete application for renewal within 30 days of notice, so that the Division can meet the 18 month deadline.

G. Modifications States must adopt expeditious procedures for processing changes that require a modification to a permit.

1. Administrative Modifications Administrative modifications are *minor changes to the permit, such as change in owner, more stringent monitoring requirements, or correction of typographical errors. The change at the source can be made upon submittal, and the Division must revise the permit within 60 days. No public notice or EPA review is required. The original expiration date does not change when administrative modifications are made.

2. Minor Modifications The existing construction permit program requires sources to obtain construction permits before they construct or modify. Revisions to construction permits are required before any changes at the source are made. In contrast, the Federal rule allows changes to be made without revisions to the operating permit, provided no SIP requirements are violated. Sources are allowed to make “minor modifications” upon notice to the Division. The source must supply a draft permit which is submitted for affected state and EPA review. The permit is revised within 90 days. No public notice is required at the time the modification is made. The Commission was faced with a dilemma. Since the construction permit program is a SIP requirement, sources would not be allowed to make minor modifications without first obtaining a construction permit. This in effect would negate the operational flexibility envisioned in the Federal Act. Only certain modifications at the source may qualify as “minor modifications” for operating permit purposes. The change cannot be a “Title 1” modification. Title I contains requirements applicable to new sources. Title I revisions include the following changes:

1. Modification which triggers Prevention of Significant Deterioration and New Source Review (significant net emission increase)

The significant levels (defined in Part A of this regulation) are based on the potential to emit of a source or modification. Since no construction permit is in place to limit the potential to emit of a minor modification, all minor modifications will be triggered based on potential emissions, not actual emissions.

2. Modification which triggers New Source Performance Standards (NSPS) (Any change which increases the amount of any air pollutant) - This definition only applies to specific NSPS sources, unless it is referenced in an applicable requirement 3. Modification which triggers Section 112 (hazardous pollutants)-EPA will be adopting “de minimis” levels which will trigger a modification.

Minor modifications cannot involve any significant change or relaxation in monitoring, recordkeeping, or reporting requirements. Minor modifications also cannot violate any permit condition which the source has voluntarily obtained in order to limit potential emissions for avoidance of requirements (such as PSD requirements).

The EPA expressed their concern regarding the construction permit SIP requirements and minor modifications. The Commission has determined that it is appropriate to submit a SIP revision for the construction permit program, in order to allow sources the flexibility allowed under minor modifications. The Commission will allow minor modifications under the operating permit procedure, and changes before obtaining a permit, however all substantial requirements needed for a construction permit must be met. These requirements include ambient modeling to assess the modification's impact on air quality in Colorado, as required in the SIP. As under the current construction permit program, minor modification procedures cannot be used to circumvent PSD or NSR requirements by making individual changes which together would otherwise trigger PSD or NSR. The enforcement protection of the permit shield does not apply to these modifications. Sources should be confident that all applicable requirements will be met before submitting a change as a minor modification. If the source errs in its determination, the Division, the Commission, and the EPA can take enforcement action against the source and the source's right to operate under the modification is terminated (the source must revert back to the permit as it existed before the modification was requested).

Upon permit renewal, the minor modification undergoes public notice along with the rest of the permit, and the permit shield can be extended to the minor modification provisions.

3. Significant Modifications Significant modifications are changes at the source which are not administrative modifications, and which do not qualify as minor modifications. Such changes trigger PSD or NSPS, etc., or involve significant changes in or relaxation of monitoring, recordkeeping and reporting requirements. A revised permit must be obtained before the source is allowed to commence construction for the change. A source may choose to obtain a revision to its operating permit, or it may choose to obtain a construction permit before making the change. Significant modifications to operating permits must undergo all of the public notice and EPA review requirements, therefore a source should plan on submitting its application well in advance of making the change. If a construction permit is obtained first, the source should apply at least three to four and a half months in advance (except for PSD sources, which should plan 12 months in advance). Once the construction permit is obtained, the source may commence construction. The conditions of the construction permit do not need to be incorporated into the operating permit until renewal, unless more than three years remains in the term of the operating permit, in which case the operating permit must be reopened, and the significant modification provisions incorporated.

H. Operational Flexibility The Federal rule requires a State's program to include operational flexibility provisions, which allow a source to make certain changes without having to obtain a modification to their operating permit. The changes are simply incorporated into the operating permit when it is renewed. The types of operational flexibility are described briefly below. Subcommittee papers and fact sheets, which explain the provisions in more detail, and give specific examples, are available at the Division and Commission offices. The Commission has directed the Division to devise simplified explanations of all of the provisions. “502(b) (10)” Changes (named after a section of the Federal Act): A source is allowed to make a change which would violate an express permit term, provided no applicable requirements are violated. The source can make the change after a seven day advance notice to the Division. The permit shield does not apply. The Commission will allow sources to revert back to the original permit term, provided seven day notice is given to the Division. The permit shield can then apply again to the provision which is contained in the permit.

Permit Caps: A source may ask for an upper limit in total facility emissions. Changes may occur within the facility, as long as the upper limit is not exceeded, and all applicable requirements are met. The permit shield applies to these changes. Seven day notice is required before the change is made. This type of operational flexibility may be suitable for research and development facilities. Alternative Scenarios: The source can identify various operational scenarios in its application, along with the applicable requirements and compliance demonstrations. The source can then switch from one scenario to another without notification to the Division. The permit shield applies to these changes. Emission Trading Based on the Permit: The applicant can request that the trading provisions (for netting out) provided for in Part A of this regulation be incorporated into their operating permit. As long as all of the provisions are met, the source can use the provisions to make changes without notification to the Division.

Off Permit Changes: These changes can be made at the source with seven day notice to the Division. The changes involve activities that are not addressed in the operating permit. The same qualifications as those for minor modifications apply to these changes (cannot be Title I modifications, significant monitoring changes, etc.) Note that the same SIP concerns apply to these changes that are discussed above under minor modifications. A construction permit would be required before these changes could be made. The Commission has decided to submit a SIP revision to allow these changes. Emission trading based on the SIP: This is the only Federally allowed operational flexibility provision that the Commission did not adopt. This provision would allow sources to use the emission trading provisions of Part A without specifically stating the procedures in the permit. The Commission does not currently have an approved SIP that would allow this, therefore the EPA would not approve this procedure at this time. The EPA is expected to develop guidelines for approvable SIPs within two years. The Commission will consider this provision once it is apparent what the EPA would approve.

I. General Permits General permits are standard permits that apply to specific source categories. The sources in the category have similar applicable requirements and similar monitoring, recordkeeping and reporting requirements. The general permit will include criteria by which a source may qualify for the permit. Sources which are out of compliance may not qualify for a general permit, since a separate individual compliance plan would be required. The general permit undergoes one-time public notice and hearing and EPA review when it is initially developed. Qualifying sources can use standard, simplified applications and obtain the general permit without having to go through the entire application process (public notice and hearing) individually. A list of all sources which have been issued a general permit shall be maintained by the Division and made available upon request. The general permit (as originally developed) undergoes five year renewal, including public notice and EPA review.

General permits will also be developed for the construction permit program, and will usually be identical to the general operating permit for that source category. Existing sources that have not obtained a general construction permit through the construction permit program (probably because a general permit did not exist at the time a construction permit was obtained) may operate under the general operating permit within 60 days of submitting a complete application for the permit, which corresponds with the amount of time allowed for a completeness determination. The application shield becomes effective upon submission of a complete application. The Division will issue the general permit to the source upon completion of the analysis. The permit shield becomes effective upon issuance of the operating permit. Sources which receive a general construction permit through the construction permit program may operate under the general permit as an operating permit 60 days after a complete operating permit application is submitted, provided the required compliance demonstration has been performed in the required time (180 days). Such source must apply for the operating permit within 12 months of commencing operation. Once such application is received and determined to be complete, the Division will issue a certification which states that the construction permit now becomes the operating permit. General permits will ideally be useful for minor sources that will be subject to operating permits at a later date. Minor sources are more likely to be subject to similar applicable requirements. The Commission has directed the Division to devote resources as they become available to identification of sources which would be suitable for general permits and to the development of general permits. Candidates for general operating permits include sources that become subject to new MACT/GACT standards (i.e. dry cleaners), or existing and new NSPS sources (i.e. asphalt plants). The Commission will allow major sources to have general permits as part of their overall operating permit. As general permits are developed, major sources may use them. The source would just reference in their initial or renewal application that they have a general permit. General permits, however, cannot be issued to major sources if the issuance of the general permit would cause a violation of any of the applicable requirements in any other operating permits they have, or if issuance of a general permit would trigger a Title I or Title Ill modification. The Commission will allow general permits to be used for an entire major source only in those instances where the use of general permits is appropriate (homogenous, straight- forward sources).

J. Title III (Hazardous Air Pollutant Requirements)

The provisions of Title Ill must be implemented through the operating permit program. As discussed above, all major sources of HAPs must obtain an operating permit. As the Commission adopts MACT standards, the permit must be reopened to include the new requirements. As the EPA promulgates new MACT standards, they will decide if minor sources as well as major sources affected by the standard must obtain operating permits. Once the EPA approves the State's operating permit program, the Division and Commission must begin making case by case MACT determinations for new major sources and modifications, if the EPA has not yet set a MACT standard for that category. The EPA will be setting emission levels at which modifications are triggered.

Once the EPA approves the State's operating permit program, if the EPA fails to meet its mandated deadline for setting a particular MACT standard, the State must determine MACT for that source category within 18 months. Permits will be reopened to incorporate the State MACT standard. Once the EPA determines MACT for the category, permits may need to be reopened again, and sources may need to retrofit their units, depending upon the difference between the State and EPA MACT determinations.

K. Title IV (Acid Rain Provisions)

The Commission is required, and fully intends, to adopt the acid precipitation rules and requirements as promulgated by the EPA, and to implement the requirements through the Title V permits, as also required under the Federal Act. Title IV sources (power plants) are required to submit the Title IV portion of their operating permits by January 1, 1996. The permits must be issued by December 31, 1997. The EPA is planning on having all of the requirements and forms finalized so that Title IV sources can apply for Title IV requirements at the same time they apply for their initial operating permit. This could help avoid re- opening of the permit. To facilitate this, the Commission has determined that Title IV sources should be included in the last group of existing sources required to apply for operating permits (due one year after EPA approves the program, see discussion above).

The Commission also intends to adopt provisions related to the WEPCO rule promulgated by the EPA, which deals with Clean Coal Technology Projects and other modifications at utilities. The rule is currently slated for the spring of 1994 in the Commission's regulatory agenda. In the interim, the Commission and Division will continue the existing policy of treating such projects as allowed by the EPA. Also, the Commission wishes to encourage Clean Coal Technology Projects, which are used to develop and identify better methods of controlling and preventing air pollution. The Commission has directed the Division to consider research and development factors, and the importance of developing new technologies, if enforcement action may be necessary due to violations related to such projects.

II. Construction Permit Program A. Synthetic Minors As discussed above, construction permits are the vehicle through which sources can obtain federally enforceable limits on their emissions in order to avoid the operating permit requirements. In some cases, sources may also choose to obtain limits to avoid PSD or NSR requirements. Such synthetic minor permits must undergo public notice in order to be federally enforceable.

B. SIP Equivalency The Commission has determined that it is appropriate to allow construction permit sources to use the SIP equivalency procedure that is provided for operating permits in the Federal Act. Current regulations, such as Regulation No. 7, require a case by case SIP revision for equivalent procedures, which involves public notice, a mandatory Commission hearing, and EPA approval. The new SIP equivalency provisions override Regulation No. 7 provisions. All SIP equivalency proposals require public notice, opportunity for hearing (but not mandated if not requested), and EPA review. The Commission will require such construction permits to follow the PSD track, which requires public notice and an opportunity for public hearing. The EPA will review the proposal during the public comment period.

C. Minor Modifications and Operational Flexibility The Commission has extended most of the operational flexibility provisions directly to the construction permit program, since no modification to a permit is required. These provisions include Administrative Modifications, Alternative Scenarios, Emission Trading Based on the Permit, and Permit Caps. The remaining operational flexibility provisions, and the minor modification provisions are not available through the construction permit program, however sources may obtain these additional allowances by voluntarily applying for an operating permit.

D. General Permits The Commission has determined that the general permit process will be allowed only for the operating permit program. The general application and permit forms, however, should be used for construction permits as they are developed. The Colorado Act requires new sources to obtain a construction permit before commencing construction, therefore the source must have their construction permit in hand before constructing. In addition, Regulation No. 3 requires certain sources to undergo public notice before construction. The Commission believes that notice should continue to be provided to the public where appropriate, before a source constructs near them.

As discussed above under general operating permits, the Division will identify candidates for general construction permits as resources are available. The same sources identified in the discussion above are candidates for general construction permits. In addition, general permits may be suitable for sources wishing to obtain synthetic minor status, such as emergency and backup generators.

III. Emission Fees Though it was not noticed for this hearing, some parties indicated they had concerns regarding the Division's policies for charging annual emission fees. A request was made to include the Division's policy in the regulation. The Commission believes the Division should be given the flexibility to determine the most efficient and reasonable procedures and policies for assessing fees, therefore the policy will not be included in the regulation. The Division will prepare a written policy for public distribution on the methods it will use to calculate and collect emission fees.

IV. Where Can a Source Go For Assistance In Understanding the New Requirements? A. Small Business Assistance Program Even though existing minor sources (small businesses) are exempt from the operating permit program, small businesses will need help understanding the construction permit program requirements. In addition small businesses need to understand the operational flexibility requirements, and need to understand if it would be advantageous for them to apply for an operating permit. The EPA may decide that some minor sources should be required to apply for operating permits as new MACT and NSPS standards are promulgated.

Last September, the Commission approved a plan for developing a Small Business Assistance Program. The program is under development and is expected to be implemented and fully operational by November of 1994. In the interim, Division staff is available to answer any questions which a small business may have regarding air quality regulations and requirements. Some information has already been developed regarding APEN requirements and simplified calculation procedures.

B. Pre-application Meetings This regulation provides opportunity for any source to request a preapplication meeting with the Division, to discuss what requirements may be applicable to a source.

C. Division Staff Division staff will remain available to all sources and the public, to answer questions regarding the operating permit and construction permit programs.

I.G. Adopted March 17, 1994 Statement of Basis, Specific Statutory Authority and Purpose Revisions to Regulation No. 3 Part A, Section II.E Pursuant to Section 112(n) of the federal Clean Air Act, the US Environmental Protection Agency (EPA) is required to conduct an extensive study to create a reliable estimate of the existence or quantity of hazardous air pollutants (HAPS) emissions from certain sources such as utility and non-utility industrial boilers. Another study under Section 112(n) relates to emissions from publicly owned treatment works (POTWs). Section 112(n) recognizes that technological limitations exist on the ability to reliably estimate these emissions. The required studies are complex and costly, and EPA has indicated that the utility and non-utility boiler study will not be concluded until the end of 1995. The original time frame contemplated by Congress anticipated that the study would be completed by November 15, 1993. Unlike the mandatory boiler study, the Clean Air Act merely authorized EPA to study POTW emissions and EPA has decided not to continue with the study. Thus, the emissions information which was originally expected will not be developed in time to facilitate APEN reporting by December 1994. Since the emissions from facilities which treat municipal-type wastewater are virtually identical to those from POTWs, the lack of POTW emissions data also affects this category of sources as well. During rulemaking in 1993, a deferral for HAP reporting from boilers and other listed sources was granted until six months from the date federal studies are complete or until December 31, 1994. This deferral appears in Part A, Section II.E.

This was based in large part on the recognition that it would be unreasonable and infeasible to expect these sources to attempt to duplicate the EPA studies and to provide meaningful data earlier than EPA. The postponement was not intended to forgo reporting obligations (it applied to emissions points and processes only, not to entire facilities), but rather, to recognize technical limitations and to await (not duplicate) the results of the EPA studies. The Statement of Basis, Specific Statutory Authority and Purpose for the 1993 rulemaking session explained, “Due to ongoing studies aimed at quantifying their emissions of non-criteria pollutants, the Commission has deferred APEN reporting requirements for five source categories until six (6) months after the studies have been completed or December 31, 1994, whichever is earlier.” It is now apparent that neither the EPA boiler study nor the POTW study will be timely completed for effective implementation of' II.E. The clear intent of the regulation is to postpone report of HAP emissions by sources such as utility and non-utility industrial boilers, POTWs and municipal-type wastewater treatment works, pending the results of the ongoing EPA studies. The rationale for this intention is that it is technologically infeasible for these sources to comply with this reporting requirement without the results and utilization of the EPA studies. The original intent and rationale for a postponement continue to pertain at this time and provide the basis for this rulemaking. Additionally, highly costly tests would be required if reporting is required prior to the results of the EPA studies. There is a serious question about the accuracy of any reporting prior to the conclusions of the EPA studies. Moreover, if sources attempt to formulate tests, inconsistencies with testing procedures, resulting data and interpretation thereof would result, thereby further complicating issues for impacted sources and administration by the state. It is believed that using the EPA studies results will allow avoidance of such costs and result in more accurate APENS which, in turn, will facilitate easier administration by the state.

During the Commission's prior deliberations on this matter, the Commission expressed an intent to revisit this December 31, 1994 deadline if the EPA studies would not be timely completed. Impacted sources must be placed on notice as early as possible concerning any deadline because lead time to conduct studies and extensive planning would be necessary. This rulemaking postpones to December 31, 1995, or six (6) months after the EPA studies are complete, whichever is earlier, for utility and non-utility industrial boilers, and POTWs and municipal-type wastewater treatment plants. This decision furthers the Commission's original intent concerning the underlying reporting. This issue may be revisited in the future if the information expected to be derived from the EPA studies continue to be delayed. The specific authority for this regulation is contained in the Colorado Air Pollution Prevention and Control Act, 1992 as amended. The Legislative Declaration, '25-7-102, recognizes that an accurate emission inventory is needed to adequately manage air resources in Colorado. Section 25-7-109.3 provides authority for regulating HAPs. Section 25-7-114.1 provides authority for requiring APENS, and for allowing exemptions from the requirements. Section 25-7-109(4) requires the Commission to promulgate regulations pertaining to HAPs.

I.H. Adopted May 19, 1994 Findings Regarding the Basis for the Emergency Rule Revisions to Regulation No. 3, Concerning the Operating Permit Program The Air Quality Control Commission held this emergency rulemaking hearing on May 19, 1994, after such notice of rulemaking as practical, to postpone the November 15, 1994 deadline for submission of operating permit applications by those existing major stationary sources previously notified by the Division to submit applications by that deadline. The revisions to Regulation No. 3 would phase-in the required submission of operating permit applications by these sources over a three month period beginning January 1, 1995. The Commission finds that the immediate adoption of this emergency regulation is imperatively necessary for the preservation of the public welfare and to ensure compliance with the federal law, and that compliance wit normal notice requirements for rulemaking would be contrary to the public interest.

This emergency regulation is necessary for three reasons. First, the Environmental Protection Agency (EPA) has issued a formal letter to the State of Colorado advising the State that its Title V operating permit program submission, contained in the Commission's Regulation No. 3, must be revised in order to obtain federal approval of the State operating permit program in accordance with the mandates of the federal Clean Air Act. The earliest date by which the Commission is able, pursuant to law, to promulgate such revisions and make them effective is September 30, 1994. Sources that are subject to the operating permit application deadline of November 15, 1994 will not have sufficient time to complete their applications and submit them by that time after the promulgation of the revisions. Secondly, and more importantly, it was not until the 1994 Colorado legislative session that the legislature appropriated money for the necessary FTE's at the Division to process operating permit applications and to implement the program. The money will not be available for the Division's use until July 1994, and given the shortcomings of the State personnel system, the new Division employees will not, in all likelihood, begin their employment until on or around November 1, 1994. If the Commission did not act on an emergency basis to postpone the application deadline of November 15, 1994, persons subject to the application deadline will be required to apply to the Division prior to its ability to fully train the new employees or to provide sources any services necessary under the mandates of the federal Clean Air Act. This imposes an unnecessary burden on sources, as well as the Division. Finally, the federal Clean Air Act requires that the State have sufficient money to cover the direct and indirect costs of implementing the Title V program. These costs include those necessary for the Division to review permit applications and issue permits within certain established timeframes, as well as to perform inspections and other compliance monitoring actions. The EPA has indicated to the State, in a letter dated April 8, 1994, that if the State does not have sufficient money to cover these costs, the EPA cannot grant any type of approval, including interim program approval. In this event, EPA must take over the Title V program in Colorado, and has threatened to impose sanctions on the State. Therefore, the Commission must act on an emergency basis to postpone the operating permit application deadline in order to give sources sufficient advance notice of the changed deadline and in order to ensure that the Division will be able to review and process those applications within the timeframes set forth in the federal Clean Air act.

In light of the evidence presented at the emergency hearing on the difficulty and cost to sources of completing operating permit applications, given the short timeframe between the Commission's ability to revise and make effective changes to Regulation No. 3 required by the EPA and the current deadline; on the difficulty and cost of evaluating operating permit applications filed with the Division and of the Division's inability to perform services required by the current Regulation No. 3 and deadline of November 15, 1994; and on the EPA's letter evidencing its concern that the Division will not be sufficiently financed to perform those federally-mandated services, the Commission finds that an emergency exists which warrants the passage of this emergency regulation. The Commission does not believe that this emergency regulation represents any risk to public health. I.I. Adopted August 18, 1994 Statement of Basis, Specific Statutory Authority, and Purpose Revisions to Regulation No. 3 This Statement of Basis, Specific Statutory Authority, and Purpose complies with the requirements of the Administrative Procedures Act, Section 24-4-103(4), C.R.S. (1994) for adopted or modified regulations. Basis The 1990 Amendments to the Federal Clean Air Act require states to implement an operating permit program. Failure of a state to implement the operating permit program will result in EPA sanctions. On July 15, 1993, the Air Quality Control Commission adopted revisions to Regulation No. 3 necessary to implement the State's operating permit program. The Commission also adopted revisions to Regulation No. 3 that were necessary to integrate the operating permit program with the existing construction permit program, and that were necessary to extend certain provisions of the operating permit program to minor sources not otherwise subject to the program.

On November 5, 1993, the Governor submitted Colorado's operating permit program to the Region VIII, Environmental Protection Agency (EPA) for its approval. The EPA reviewed Colorado's submittal and on April 8, 1994 responded to the State's submittal, noting certain deficiencies in the program. These deficiencies must be corrected and the revisions submitted to the EPA no later than October 1, 1994. The Commission promulgated these revisions to Regulation No. 3 in response to EPA's comments. EPA also noted certain legislative changes that are required in order for the State of Colorado to obtain full approval of its operating permit program. Therefore, at this time, the Commission contemplates that the State will receive interim approval of the operating permit program; within 18 months after receiving the interim approval from EPA, the State must submit legislation that will satisfy all of the federal requirements. The EPA in its April 8 letter required the Commission to revise in certain respects the Statement of Basis, Specific Statutory Authority, and Purpose for Revisions to Regulation No. 3 that was dated July 15, 1993 and which was submitted to the EPA on November 5, 1993. The required revisions are reflected in this Statement of Basis, dated August 18, 1994.

Specific Authority The specific authority for this regulation and its revisions is contained in the Colorado Air Quality Control Act, 25-7-101, et seq. (1989 amp; 1994 Supp.). Section 25-7- 105(1)(A)(1) requires the Commission to adopt into the State Implementation Plan all requirements of the federal act. Sections 25-7-105(12) provides authority to implement the operating permit provisions of Title V of the federal act. Section 25-7- 105.1 sets forth the federal enforceability provisions. Section 25-7-106(6) provides authority for monitoring, recordkeeping and reporting requirements. Section 25-7-114.1 provides authority for APEN requirements and for allowing exemptions from the requirements. Section 25-7-114.2 through 114.5 set forth construction and operating permit requirements, and application and public participation requirements. Commission action in promulgating these revisions is taken pursuant to Sections 25-7-105 to 109 and 25-7-114.

Statement of Basis and Purposes of Changes to Regulation 1. In Part A, I.B.9.e., the definition of “applicable requirement” concerning enhanced monitoring was changed to comply with the federal definition, incorporating all monitoring and enhanced monitoring requirements established pursuant to sections 504(b) and 114(a)(3) of the federal act.

2. In Part A, I.B.22., the definition of “federally enforceable” was amended to mirror the definition found in section 25-7-105.1 of the Colorado Air Pollution Prevention and Control Act.

3. In Part A, I.B.35.D.e., the Commission exempted any modifications that are not “major modifications” from the definition of Title I modifications, for sources with operating permits that utilize the minor permit modification procedures set forth in Part C, Section X.A. This is because EPA cannot allow the minor permit modification procedures to be used for Title I modifications; therefore, for the minor permit modification procedures to have any use at all, this change was necessary. All modifications must still comply with the requirements of 40 CFR Part 51.165, as reflected in Regulation No. 3, Part B, IV.D.1.a.-h. In effect, this change merely allows an operating permit source to modify without going through the procedural requirements of obtaining a construction permit, but still requires the source to meet all substantive requirements.

4. Part C, X.A.5., XII.A.1 and XII.B. were revised to reflect the change described in paragraph no. 3 above.

5. Part A, I.B.62, a definition of “state-only condition” was added. This term is used throughout Regulation

1. No. 3.

6. In Part A, Section II.D.1.aaa. (APEN exemptions), and in Part C, Section II.E.3.aaa. (insignificant activities for operating permits), the Commission exempted storage of lubricating oils from notice and permit requirements. Because new source performance standards apply to storage tanks of capacity > 40,000 gallons, the Commission revised these provisions to ensure that the exemptions would not allow a source to avoid new source performance standards.

7. In Part A, II.D.5., the Commission established an administrative procedure whereby the Division could process and grant requests for exemptions from permit and APEN requirements. However, this amounted to a SIP revision without allowing EPA the opportunity to review and approve the revisions. Therefore, the Commission amended this procedure to require that the Commission adopt the exemptions pursuant to rulemaking, on an annual basis, and submit the revisions to EPA prior to a source being able to take the exemptions.

8. Part A, IV.B. contains operational flexibility provisions concerning “trading based on the permit.” The federal rule allows a source to take advantage of any EPA-approved emissions trading program, without the need for a SIP revision. At this time, Colorado does not have an EPA-approved generic emissions trading program. To obtain EPA approval of the State's operating permit program, the Commission amended this provision to clarify that the trading based on the permit may be utilized only if the SIP contains an EPA approved trading program.

9. At Part B, III.A.6., the Commission clarified that the provisions of IV.D.1.a.-h. must be met in order for the source to utilize the minor permit modification procedures. Previously, the Commission had merely cross-referenced section IV.D.1., which contained time periods for review which conflicted with the minor permit modification procedures.

10. At Part B, IV.D.l.i. and in Part C, V.C.l.c., the Commission had provided authority for a source to use an alternative emissions limitation that is as stringent as an applicable requirement so long as the permit contained provisions to ensure that the limitation is quantifiable, accountable, enforceable and based on replicable procedures. The preamble to the operating permit rule, 40 CFR part 70 makes clear that it is the SIP, not the permit that must contain these replicable procedures. Therefore, in Part C, the Commission amended V.C.l.c. to clarify that the alternative emissions limitation may be taken only if it is allowed by the SIP; then in Part B, IV.D.l.i., the Commission removed the alternative emissions limitation language because the SIP must itself contain the replicable procedures. EPA is expected to have guidance in the near future on alternative emissions limitation.

11. In Part C, III.B.7., the Commission clarified that a source applying for a combined construction/operating permit must first obtain the permit prior to commencing construction.

12. In Part C, III.C.12., the Commission clarified that ambient air quality standard considerations in issuing permits apply only to temporary sources (pursuant to the federal law), and to new and modified sources applying for a combined construction/operating permit (pursuant to state and federal law). Although this was always the case, the provision previously could have been read to allow consideration of these standards in issuing operating permits.

13. In Part C, V.B.3. amp; 5., the Commission allowed minor sources to voluntarily opt into the operating permit program in order to gain the operational flexibility of operating permits. These minor sources, however, could avoid the public participation, EPA and affected state review provisions. The EPA was concerned that synthetic minor sources would be able to opt into the program, and in so doing would lose their federally enforceable limitation (imposed by the construction permit which would be lost), without going through the required public participation and EPA and affected state review. The Commission revised these provisions to clarify that synthetic minors opting into the program must go through all the necessary reviews. In addition, major sources of Colorado- only HAPs need not go through the public review process attendant to operating permits. The EPA was concerned that the provision could be read to allow federal HAP major sources to avoid public participation and review. The Commission clarified these provisions to ensure that such was not the case.

14. In Part C.III.B., the Commission revised the schedule for submission of operating permit applications by the remaining two-thirds of sources in order to reflect the anticipated interim approval date of the operating permit program of January 1, 1995. This revision would also allow the Division to notify some sources of the need to submit an application before January 1, 1996, but on or after November 15, 1995, upon twelve months' notice.

Changes to the Statement of Basis and Purpose dated July 15, 1993 I.C.2. “Regulated HAPS”

Revise this paragraph to read:

Note that a HAP must be subject to a standard before the applicant is required to address it in the permit application. Once the EPA adopts a MACT standard for a particular HAP, all sources, even those not subject to the particular MACT standard, and even those not in the source category, must address that HAP in applications. In cases where the Commission or Division determines MACT on a case-by-case basis because the EPA has not timely promulgated a MACT standard for a source category or subcategory of sources, the MACT becomes applicable to all sources within that source category, pursuant to 1 1 2G) of the federal act. In cases where the Commission or Division determines MACT on a case-by-case basis for an existing source that modifies prior to promulgation of an applicable MACT standard, the HAP becomes regulated only for a particular source subject to the case-by-case standard, pursuant to 112(g) of the federal act. Once the EPA promulgates the list of 112(r) (accidental release) pollutants, those pollutants will be considered to be “regulated” for all sources. I.G.2. Minor Modifications Revise the second paragraph under this heading to read: Only certain modifications at the source may qualify as “minor modifications” for operating permit purposes. The change cannot constitute a “major modification” as that term is defined in Part A, Section II.B.35.B. The change cannot otherwise be a “Title I” modification. Other Title I requirements are applicable to new sources. These Title revisions include the following changes: (same). I.H.Operational Flexibility Emission Trading Based on the Permit: Revise this paragraph to read: The federal rule allows a source to change its operations, using the emissions trading provisions of an EPA-approved SIP to net out and avoid the need to revise its permit. At this time, the emissions trading provisions of Part A, Section V, have not been approved by EPA as generic trading provisions. Therefore, until the Colorado SIP contains a generic emissions trading policy approved by EPA, each emissions trade request will require a case-by- case SIP revision. EPA is intending to provide guidance for an emissions trading program in the near future.

I.J.Adopted March 16, 1995 Statement of Basis, Specific Statutory Authority and Purpose Revisions to Regulation No. 3 Construction Permit Program Background At the request of the U.S. Environmental Protection Agency, Region 8, the Air Quality Control Commission adopted amendments to Regulation No. 3, parts A and B, in order to clarify how the provisions relate to each and the federal regulations. These changes were necessary in order to gain federal approval of the State Implementation Plan.

Specific Statutory Authority The Specific authority for this regulation is found in the Colorado Air Quality Control Act. Section 25-7- 105(1) provides that the commission shall promulgate such rules and regulations as are consistent with the legislative declaration and necessary for the proper implementation and administration of the Colorado Pollution Prevention and Control Act, including a comprehensive state implementation plan which shall meet all requirements of the federal act and shall be revised whenever necessary or appropriate. Section 25-7-109 provides that the Commission shall adopt, promulgate and from time to time modify or repeal emission control regulations that require the use of effective practical air pollution controls. Section 24-4-103 provides the rule making procedure followed during the promulgation of this rule. Section 25-7-110 provides the specific commission procedures followed during the setting of standards and regulations. Commission action in promulgating these regulations is taken pursuant to the above statutory provisions.

Purpose Most of the amendments to Regulation No. 3, parts A and B are of a general housekeeping nature. However, three provisions require greater explanation:

The Division originally proposed adding a definition of “construction” consistent with the federal definition for New Source Review and Prevention of Significant Deterioration. To eliminate the potential for confusion and conflict with the state statutory definition, the Division has removed that provision from the amendments. There is a definition for construction, which applies to Regulation No. 3, parts A and B, in the General Provisions Regulations; that definition matches the state statutory definition. The changes to the definition of “Net Emissions Increase” in part A, section I.B.37 need some explanation. In order for an increase or decrease to be creditable, the Division could not have relied on the increase or decrease in issuing a permit under Regulation No. 3. Also, the source has two choices for proving the extent of the emissions increase or decrease: (1) the source submits or has on file an APEN indicating the baseline emissions rate and then submits a revised APEN within one year after making the increase or decrease (the difference between the two APENs is the amount of creditable increase or decrease) or (2) the source provides credible, demonstrable evidence to the Division of actual emission rates both before and after making the increase or decrease (the source can make the before and after demonstration any time during the contemporaneous period). The general construction permit provisions of part B, section IV.J. were amended to provide greater detail of how the Division would actually implement the provisions. The Division retains the discretion to determine whether it will issue a general construction permit, although a source or group of sources can request that the Division do so. These provisions are meant only for minor sources, including sources wishing to obtain federally enforceable limits on their potential to emit, making them synthetic minors. The contents of a general construction permit will vary depending on the type of source involved. The Division will state in the general construction permit that goes out for public notice all the criteria a source must meet in order to qualify for coverage under the permit, the method of application (including specific application forms if different from a standard construction permit), the deadline for application, and other requirements as necessary and specified in the permit (i.e. monitoring, reporting, and recordkeeping requirements). After receiving an application to be covered by a general construction permit, the Division will determine whether the source fits within the intended coverage of the general construction permit, meets all applicable requirements, and satisfies all the criteria as laid out in the general construction permit. If the Division grants a source the right to construct and operate under a general construction permit, there are still some situations under which the Division may require the source to obtain an individual construction permit (i.e., the source makes changes that bring it out of compliance with the general construction permit or circumstances change such that the source is no longer appropriately controlled under the general construction permit).

Overall, the amendments to Regulation No. 3, parts A and B are meant to integrate with the existing rules and meet the federal requirements for the State Implementation Plan. I.K. Adopted May 18, 1995 Statement of Basis, Specific Statutory Authority, and Purpose Revisions to Regulation Nos. 8 and 3 Synthetic Minor Permit Program This Statement of Basis, Specific Statutory Authority, and Purpose complies with the requirements of the Administrative Procedures Act, Section 24-4-103(4), C.R.S. (1994) for adopted or modified regulations. Background At the request of the Division, the regulated community and the state legislature (HB94-1264), the Air Quality Control Commission adopted rules that would allow the Division to issue permits to limit a source's potential to emit hazardous air pollutants (HAP). Such a mechanism is necessary and important because it enables the Division to issue a permit to a source of HAP in order to limit the source's potential to emit below emission thresholds requested by the applicant, thus allowing the source to avoid a variety of requirements such as Title V operating permit requirements, Title III maximum achievable control technology (MACT) requirements promulgated by the U.S. Environmental Protection Agency (EPA), or Colorado MACT requirements.

Specific Statutory Authority The specific authority for these revisions is contained in the Colorado Air Quality Control Act, 25-7-101, et seq. (1989 amp; 1994 Supp.). Section 25-7-109.3(2) provides the specific authority for the Commission to adopt provisions allowing the Division to create synthetic minor sources of hazardous air pollutants. Section 25-7-109 provides that the commission shall adopt emission control regulations requiring the use of effective practical air pollution controls. Section 25-7-109.3(2) provides that in order to minimize additional regulatory and compliance costs to the state's economy, any program created by the commission shall contain a provision which exempts those sources or categories of sources which it determines to be of minor significance from the requirements of the program. Section 24-4-103 provides the rule making procedure followed during the promulgation of this rule. Section 25-7-110 provides the specific commission procedures followed during the setting of standards and regulations. Commission action in promulgating these regulations is taken pursuant to the above statutory provisions. Purpose The rulemaking includes the permanent addition of Regulation No. 8, part E, section IV and amendments to Regulation No. 3, part B. Following is a description of the purpose of each section within Regulation No. 8, part E, section IV:

Section A of the rule clarifies that Regulation No. 8, part E, section IV applies to sources who choose to voluntarily limit their potential to emit HAP. This section clarifies that although the Division shall issue permits to qualified applicants, the Division will not include in the permit any indication of the source's exemption status for other requirements (i.e. Title V or Title III of the federal Act) unless the source asks the Division to include all relevant emissions units and pollutants in the permit review. Under this regulation, the applicant chooses which emission units to cover in the particular permit: that can be all HAP emission points, some or one HAP emission points, all criteria pollutant emission points, and/or some or one criteria pollutant emission points. Unless there is a need for a state-only or federally enforceable permit condition, the Division will not impose any additional applicable requirements on criteria pollutants or HAPs for the emission unit or a number of emission units. If the permit applicant wants a thorough review of the facility and a determination by the Division that the facility qualifies as a synthetic minor from Title V and/or Title III, or other specific provisions of the state or federal Act, then the applicant can choose to have a comprehensive Division review in the permit. Sources choose in the permit application the threshold level below which they want to limit the potential to emit hazardous or criteria pollutants. Sources may want to bring their emissions below Title V major source thresholds or may want to limit their emissions below affected source thresholds under specific MACT standards or enhanced monitoring thresholds when those rules are eventually enacted. When a source applies for a permit under Regulation No. 8, the Division uses the procedural provisions of Regulation No. 3 to issue the permit. Finally, this section clarifies that receiving a permit under this regulation will not relieve a source from possible future EPA requirements that apply to minor or area sources of HAP or state conditions; however, such sources may request a permit to further limit the potential to emit HAP below the trigger threshold.

Section B describes the elements of a permit issued under this regulation. The permit needs to include practically enforceable permit conditions. The Division makes the final determination on what those conditions are on a case-by-case basis for each permit. The monitoring, recordkeeping, and reporting requirements will depend on the specific source, for instance, practical enforceability may require calculating mass balances, installing a continuous emission monitor, keeping track of consumption rates for various materials, etc. However, the permit conditions to limit a source's potential to emit shall be only as stringent as necessary to limit the source's potential to emit the pollutant of concern. For instance, the Division cannot require a source to add control equipment to reduce emissions significantly if the source can adequately reduce emissions without that control equipment. The applicant may consolidate reporting or monitoring requirements from this regulation and Regulation No. 3 for the emissions unit. Finally, if requested by the applicant, the permit may include alternative operating scenarios, approved by the Division. Such alternative operating scenarios shall include specific monitoring, recordkeeping, and reporting methods as needed. However, section IV.B.4 for alternative operating scenarios is not intended to include modifications that trigger new source review unless such sources go through all the specific requirements of the construction permit program for modifications under new source review. Section C tells the source what information to turn in to the Division, increasing the efficiency of communications between the source and the Division and streamlining the application process. The application forms will reflect the intent for the Division to be flexible in its approach to permitting these sources. Although the Division would prefer a consistent approach (i.e., all applications filled out fully), the Division recognizes that often these sources will have unique circumstances that cannot be adequately addressed in a standard application form. The Division further intends that the application forms be flexible enough so that sources can choose to have the Division calculate emissions and determine the permit conditions for them.

Section D, the public participation requirements, are a requirement of EPA. This section makes mandatory what was previously discretionary for the Division. Section E clarifies that the Division can combine the requirements from this Regulation with those for limiting the potential to emit criteria pollutants under Regulation No. 3 into a single permit so that it is easier for both the Division and the source to keep track of the overall permit requirements. Also, this section IV of Regulation No. 8 is not intended to restrict the ability of a source to apply for and the Division to issue a construction permit under Regulation No. 3 with limits on the potential to emit criteria or hazardous air pollutants.

Section F explains to the source that if a physical or operational change triggers another requirement, the permit issued under this section will not relieve the source of the obligation to comply with that requirement.

Section G informs the source that is must comply with the permit conditions at all times, i.e. on an ongoing basis.

Section H serves as an interim mechanism for gaining federal enforceability of the permit and is based on EPA guidance on potential to emit; this section does not apply once EPA has approved these rules for limiting the potential to emit HAP. In order for a permit to be federally enforceable, EPA must receive a certification of compliance from the source indicating the source will comply with the permit terms. The source should send a copy of the initial permit approval with the certification of compliance to EPA and a copy of the certification to the Division (to keep in the permit file). The responsible official, defined in Regulation No. 3, needs to sign the certification.

The revisions to Regulation No. 3 are necessary to implement the provisions of Regulation No. 8, part E, section IV through the construction permit program. Note that the operating permit program already has the necessary provisions to integrate Regulation No. 8, part E, section IV. The amendment to section III.A.4 is not intended to extend any new rights to the applicant in the event the applicant declines permit conditions set by the Division, this amendment just makes explicit that the permit is strictly voluntary and that a dissatisfied applicant has normal rights of appeal associated with construction permits issued under Regulation No. 3. The addition of section III.A.7 is to clarify that if a source wants to request a limit on the potential to emit in a standard construction permit, the source may do so. This section also gives the Division the authority to limit the potential to emit HAP in a construction permit. The amendments to section IV.C implement the public participation requirements of Regulation No. 8, part E, section IV. The requirement that the Division submit a copy of the public notice to EPA for sources applying for a permit to limit the potential to emit criteria pollutants or federal HAP is meant to include criteria pollutants (already required under an agreement between the Division and EPA) and federal HAP listed in Appendix A of Regulation No. 8 (these are the HAP listed by EPA under section 112(b) of the federal Act). Permits for sources limiting the potential to emit Colorado HAP do not need to be sent to EPA for comment. Overall, these rules are intended to meld with the existing permit provisions within Regulation No. 3> while providing the added authority for the Division to issue permits to limit the potential to emit hazardous air pollutants and the opportunity for Colorado sources to get out of more rigorous permit requirements. I.L. Adopted May 18, 1995 Statement of Basis, Specific Statutory Authority and Purpose Revisions to Regulation No. 3 Part A, Section II.E.2 (As requested by Metro Wastewater Reclamation District)

This Statement of Basis, Specific Statutory Authority and Purpose for revisions to Regulation No. 3 complies with the requirements of the Administrative Procedures Act, C.R.S.' 24-4-103(4) for adopted or modified regulations.

Basis The 1990 Clean Air Act Amendments required states to inventory air emissions. C.R.S.' 25-7-114.1 contains the requirements for this inventory. The Amendments also authorized EPA to conduct emissions studies for certain source categories, included publicly owned treatment works (POTWs). No adequate, reliable, and economically reasonable emissions estimations methods are currently widely available for these emissions.

Based on the expectation that publication of these studies would result in the creation and dissemination of practical emission estimation techniques, revisions to Regulation No. 3 were promulgated in March of 1994 which postponed reporting of non-criteria reportable pollutants for these sources until July 31, 1995, or until six months after the completion of the national studies, whichever occurred first. The postponement also applied to facilities which treat municipal-type wastewater, since such facilities' emissions are virtually identical to those from POTWs.

EPA has eliminated funding for the federal POTW study. However, the Association of Metropolitan Sewerage Agencies (AMSA) has been assisting EPA in preparing its guidance document, and AMSA has also been preparing its own guidance. These documents are expected to be useful in estimating POTW air emissions. A final draft of AMSA's report is expected to be issued in the summer of 1995. EPA is also expected to issue its finding of presumptive MACT for POTWs for purposes of the Clean Air Act “ 112(j) and (g) at about this time.

Authority The specific authority for this regulatory amendment is contained in C.R.S.' 25-7-106(1), which authorizes the Air Quality Control Commission to promulgate such regulations as are necessary or desirable to carry out an effective air quality control program, and' 25-7-114.1, which authorizes the Commission to promulgate the APEN inventory program.

Purpose In order to give POTWs and facilities that treat municipal-type wastewater sufficient time to prepare reliable APENs, the Commission has extended the postponement of reporting for non-criteria reportable pollutants for these sources until December 31, 1995. The Commission finds that extending the APEN reporting deadline is in the public interest because the information to be published by EPA and AMSA will not become available to these sources in time to allow for sufficiently reliable APEN reporting. I.M. Adopted August 17, 1995 Statement of Basis, Specific Statutory Authority and Purpose Revisions to Regulation No. 3 To change TSP to PM-10 for PSD increments and housekeeping This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedure Act, C.R.S. 1973, Section 24-4-103(4) for adopted or modified regulations. Basis On June 3, 1993 the U.S. EPA promulgated changes to the Prevention of Significant Deterioration (PSD) rules replacing the Total Suspended Particulate (TSP) increment with particles with an aerodynamic diameter of less than or equal to a nominal 10 micrometers (PM-10) increments. TSP continues to have a significance level for new sources but no longer influences the PSD increments. Additionally the Division has identified several mistakes in the publishing of Regulation No. 3. Specific Authority The specific authority for this regulation is contained in the Colorado Air Pollution Prevention And Control Act, 1992 as amended. Section 25-7-105(1)(a)(I) requires the Commission to promulgate a comprehensive state implementation plan that meets all requirements of the federal Clean Air Act. Section 25-7-105(1)(c) requires the Commission to promulgate a prevention of significant deterioration program. Purpose The Regulation No. 3 PSD rules implement the Federal PSD rules in Colorado. Under the PSD program areas that are in compliance with the National Ambient Air Quality Standards (NAAQS) are required to adopt a permit program for the preconstruction review of new stationary sources and modifications of existing stationary sources to prevent significant deterioration of existing air quality levels. The implementation of the new PM-10 increments will utilize the existing baseline dates and baseline areas for PM. The PM increments measured, and PM-10 already consumed since the original baseline dates established for TSP will continue to be accounted for, but all future calculations of the amount of increments consumed will be based on PM-10 emissions.

The Division is also proposing some minor housekeeping while revising this regulation. There were several sections where the language published in the Colorado Register was either repeated or the changed paragraph and the original paragraph were both printed. There was also an outside request that submitted an outdated version of the regulation that was inadvertently published. I.N. Adopted December 21, 1995 Statements of Basis, Specific Statutory Authority and Purpose Part A, Section I.B.37 amp; 67; Part B, Section IV.D.4 This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, section 25-7-110.5, C.R.S.

Basis Regulations 3, 7 and the Common Provisions establish lists of Negligibly Reactive Volatile Organic Compounds (NRVOCs). The revisions adopted consolidate the list of NRVOCs into the Common Provisions, assuring that the same list of NRVOCs apply to all the Colorado Regulations. This provides more consistency in those chemicals regulated as VOCs.

Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act provides the authority for the Colorado Air Quality Control Commission to adopt and modify Regulations pertaining to organic solvents and photochemical substances. Section 25-7-109(2)(f) and 25-7-109(2)(g), C.R.S., grant the Commission the authority to promulgate regulations pertaining to Organic solvents and photochemical substances. The Commission's action is taken pursuant to authority granted and procedures set forth in sections 25-7-105, 25-7-109, and 25-7-110, C.R.S.

Purpose of the EPA list of non-photochemically VOCs), and adopting the EPA definition by reference, a single list of negligibly reactive VOCs will apply uniformly to all These revisions to Regulations No. 3, 7, and the Common Provisions are intended to clarify substances that are negligibly reactive VOCs, which are reflected in the EPA list of non-photochemically reactive VOCs. By consolidating the list (which consists Colorado Air Quality Control Commission Regulations.

This revision will also include EPA's recent addition of acetone to the negligibly reactive VOC list. The addition of acetone to the list of negligibly reactive VOC's provides additional flexibility to sources looking for an alternative to more photochemically reactive VOCs. Because the EPA has added acetone to their list of non-photochemically reactive VOCs many industries, which make and supply products to Colorado industries, are planning to substitute acetone for more reactive VOCs. This change in the content of products purchased by industry for use in Colorado would adversely effect industries in Colorado if acetone remains a regulated VOC in Colorado. By adopting acetone as a negligibly reactive VOC industries will be able to take advantage of and benefit from this possible shift in product contents. I.O. Adopted February 15, 1996 Part A, Section II.E.1 APEN Deferral for Utility and Non-utility boilers This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedures Act, CRS 1793, Section 24-4-103(4) for adopted or modified regulations. Basis The current provisions of Regulation No. 3, Part A, Section II.E.1., were designed to postpone reporting of non criteria reportable pollutants by sources such as utility and non-utility industrial boilers and small municipal generators pending the results of ongoing studies being conducted by EPA pursuant to section 112(n) of the federal Clean Air Act. EPA was directed by Congress to complete those studies within three years after enactment of the federal act, i.e., by November 15, 1993; however, EPA has yet to do so. During the Commission's last deliberations on this subject, it was stated that if EPA could not meet its deadline, then the Commission would revisit this deadline. Both the Commission and the regulated community were hopeful that EPA would be able to finish its work by the fall of 1995 so sufficient time was available for utilities to meet the December 31, 1995 deadline. Specific Authority Section 25-7-114.1 provides authority to the Commission to identify APEN reporting requirements. There currently are no federal reporting requirements concerning emissions of noncriteria reportable pollutants (NCRPs) or hazardous air pollutants (HAPs) from boilers. The current state regulations exceed federal regulatory requirements with respect to APEN reporting of emissions. Purpose A short postponement of the original deadline serves a significant dual purpose and both the state and the regulated community benefit from a deferral in this instance. The postponement avoids forcing an uneconomic and non beneficial compliance requirement at this time on the regulated community. Since there are no compliance obligations respecting HAP emissions from boilers, either in effect or proposed, EPA and Division interpretations provide that an applicant for a Title V operating permit need only list - not estimate quantities of emission of - an application for an operating permit. This revision is administrative in nature, and is not intended to affect air emissions. I.P. Adopted March 21, 1996 Revisions to Parts A, B amp; C for Insignificant Activities (Parties: Air Pollution Control Division, Colorado Association of Commerce amp; Industry and the Colorado Utilities Coalition for Clean Air Division - Part A, Section I.B.9.a; Section II.D.1.kk, 4.a, b.(iii) amp; (vi); Part C, II.E.3.kk Basis The Division reviews the addition of any requested insignificant activities to Regulation No. 3 once each year. The additions requested included small remote reservoir degreasers and torch cutting activities. Both of these items were reviewed by EPA Region VIII prior to the hearing date and given verbal approval.

The degreaser exemption provides that degreasers not using any chemicals covered by a Maximum achievable Control Technology (MACT) standard and meeting the definition of small remote reservoir are not required to submit an APEN to the Division. The torch cutting exemption clarifies the status of torch cutting as an exempt activity.

Authority The specific authority for this regulatory amendment is contained in §25-7-114.1(2), C.R.S., which requires the Commission to exempt those sources or categories of sources which it determines to be of minor significance from the requirement than an air pollutant emission notice be filed. Section 25-7- 114.6(1), C.R.S., requires that the Commission designate those classes of minor or insignificant sources of air pollution which are exempt from the requirement for an emission notice or the payment of an emission notice filing fee because of their negligible impact upon air quality. Purpose This rule change provides some clarification and additions to the APEN exemption list for those sources that the Division believes to be of minor significance. Colorado Association of Commerce and Industry - Part A, Section II.D.1.ttt; Part C, Section II.E.3.nnn. Basis The Division reviews the addition of any requested insignificant activities to Regulation No. 3 once each year. The Colorado Association of Commerce and Industry (CACI) requested the addition of emergency power generators with limitations based on the size or hours of operation. The revisions relies on EPA guidance regarding emergency power generators.

Authority The specific authority for this regulatory amendment is contained in C.R.S §25-7-114.1(2), which requires the Commission to exempt those sources or categories of sources which it determines to be of minor significance from the requirement that an air pollutant emission notice be filed. C.R.S. §25-7-114.6(1) requires that the Commission designate those classes of minor or insignificant sources of air pollution which are exempt from the requirement for an emission notice or the payment of an emission notice filing fee because of their negligible impact on air quality.

Purpose This rule change provides an addition to the APEN exemption list and clarification of the insignificant activities list for emergency power generators that are of minor significance base on size and/or hours of operation.

Colorado Utilities Coalition for Clean Air - Part A, Section II.D.1.aaa.(i), (ii); sss.(1).iv to vii; uuu; vvv; www; xxx; yyy; zzz; aaaa.(i), (ii); Part C, II.E.3.aaa.(i), (ii), xxx.(1).iv to vii yyy; This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedure Act, C.R.S. 1973, Section 24-4-103(4) for adopted or modified regulations. Basis The current provisions of Regulation No. 3., Part A and Part C both contain lists of activities and sources considered to be “insignificant” or exempt from reporting requirements. On December 29, 1995, the Commission proposed revisions to its existing Regulation No. 3, Parts A and C. Alternative proposals were submitted by members of the public, and after consultation, were endorsed by the Division. Specific Authority Section 25-7-114.1 provides authority to the Commission to identify APEN reporting requirements. Further, the rulemaking authority of the Commission is found in sections 25-7-105 to 109 CRS, as amended. The regulations of the Commission currently contain lists of activities and sources exempt from APEN and reporting requirements. On July 10, 1995, the U.S. EPA issued a White Paper designed to streamline and simplify the development of Part 70, Title V permit applications. The White Paper explains that Part 70 provides permitting authorities considerable flexibility in defining certain activities or sources as “insignificant” upon proper showing of such. The White Paper itself contains substantial lists of activities or sources which are insignificant for reporting purposes. Purpose The addition of the following sources or activities to existing APEN exemption and reporting requirements serves a significant dual purpose and both the state and regulated community benefit from the alternate proposals. The revision of existing regulation avoids forcing an uneconomic and non-beneficial compliance requirement on the regulated community. Several of the following activities or sources are on federal lists as “insignificant,” as well as those of neighboring states. These revisions are administrative in nature, and are not intended to affect air emissions.

Non-road Internal Combustion Engines:

Machinery utilized by the construction and service industries such as various types of pumps, light plants, compressors, and generators are powered by various sizes of internal combustion engines. Most are relatively small. Some emergency equipment such as fire pumps are powered by larger engines, but are operated infrequently. The exemptions listed above identify those within this category which have insignificant emissions. This exemption is consistent with other exemptions in the regulation (see, for example, subsections k. and 1.). As a practical matter, APENS have not been required from most of these machines in the past. The sizes of most of these engines are comparable to the thousands of light and heavy trucks (gasoline and diesel powered) which travel the roads in this state without any reporting requirements.

The EPA proposal of May 17, 1990 (58 Fed. Reg. 28809) and the EPA study it references contains useful findings. It exempts all spark-ignition (gasoline, propane and natural gas powered) engines. On page 28816 of the Federal Register notice, EPA finds that it did not propose manufacturing standards for spark- ignition engines because little to no emission benefit would be achieved for testing, record keeping and reporting requirements on these engines. Cost burdens industry would have to bear would not be reasonable. It also found that test procedures have not been demonstrated to be capable of accurately predicting the levels of hydrocarbons, carbon monoxide and particulate matter emissions generated by these engines in actual use. In addition, the economics and failure problems associated with gasoline powered engines dictate that relatively small sizes of gasoline engines are used for the light commercial equipment described above. As a result, all spark-ignition engines should be exempt from APEN reporting and classified as an insignificant activity.

The EPA study found that it could also exempt engines located on a trailer or truck bed. These engines are relatively small (dictated by trailer size and carrying capacity limitations) and power light commercial equipment, such as welders, compressors and generators, see page 28815 of the Federal Register notice.

Larger machines are typically powered by diesel engines of varying sizes. A review of emission factor data from AP-42 supports a division of diesel powered engines into three categories for APEN exemption purposes. Using emission factors from AP-42, expected emissions from a 175 horsepower diesel engine operating 24 hours per day, 7 days per week, 52 weeks per year at a load factor of 0.5 would present a “worst case” estimate under the 8760 hours per year “potential to emit” methodology. The following emissions are calculated:

1. -0.5 ton per year of carbon monoxide -0.2 ton per year of hydrocarbons -0.2 ton per year of particular matter -2.5 ton per year of nitrogen oxides -0.2 ton per year of sulfur oxides A 300 horsepower engine could operate up to 3 hours per day, or 1095 hours per year, and have the same emissions as the 176 horsepower engines. Similarly, an engine up to 750 horsepower could operate 1 hour per day, or 365 hours per year and have the same emissions as the 175 horsepower engine class.

This approach is consistent with the approach taken by the EPA in its Guidance Document for “Calculating Potential To Emit for Emergency Generators,” issued September 6, 1995. There, the EPA agreed that the use of 8,760 hours per year for calculating the potential to emit for emergency generators did not control. Instead, EPA recommended that the potential to emit be based upon an estimate of the maximum amount of hours the generators could operate based on a case-by-case basis where justified by the source owner or permitting authority. Surface water storage impoundment of nonpotable water and storm water evaporation ponds: Chemical analysis and observation of these sources has consistently demonstrated that they are a negligible emission source of any regulated air pollutant. Non-potable water pipeline vents:

Proper flow through of non-potable water maintains these sources as insignificant. Proper flow keeps the water in line from becoming septic and therefore a negligible source of any regulated air pollutant. I.A.1. Steam vents and safety release valves:

1. Safety release valve vents enable immediate reduction of pressure in steam lines. Emissions out of the safety valves consist only of pure water vapor. I.A.2. Deaerator/vacuum pump exhausts:
   1. These are negligible sources of emission of any regulated air pollutant. I.A.3. Seal and lubricating oil systems for steam turbine electric generators: Atmospheric vents exist in coal-fired utility turbine lube oil systems enable removal of water vapor from lube oil return lines from the turbine and generator bearings. This enables atmospheric pressure operation of lube oil storage tanks. These are not storage systems, but actual service operations. Calculations reveal that these activities would emit less than one ton of VOC's a year, per facility.
      1. I.A.4. Venting of natural gas lines for safety purposes: To enable the safe delivery of fuel gas to the utility boilers, and provide the ability to safely purge natural gas from fuel lines within a generation building, vent lines exist to allow the intermittent discharge of natural gas to safe areas away from personnel and ignition sources. The intermittent discharge of natural gas would occur during start-up and shutdown of the natural gas supply to generating unit burners to purge air or natural gas from the piping system within the generation building. These activities are not expected to emit more than one ton of VOC's or more than 110 pounds of hexane a year. Sulfuric acid storage tanks not to exceed 10,500 gallons capacity and sodium hydroxide tanks:
         1. Sulfuric acid and sodium hydroxide, used to control pH, are stored in tank systems vented to the atmosphere. These vents will exhaust vapor from a tank system through vapor extraction and contraction because of changes in temperature and barometric pressure. These losses, which are referred to as breathing losses, occur without any significant change in liquid level in the tank, and are negligible. Waste lubricating oil storage tanks not larger than 40,000 gallons and lubricating oil conditioning systems:

            Low volatility waste turbine and motor lube oil generated by utility plant machinery and mobile heavy equipment is stored in tanks. These tanks are equipped with atmospheric vents on the tops of the tanks. Emissions through these vents are expected to occur during the filling and emptying of the tanks. These emissions contain trace amounts of VOC's, with no other reportable emissions expected. Based on the low annual throughput of these tanks, emissions are insignificant, assuming that the tanks are emptied approximately five times per year or less.

            Colorado Utilities Coalition for Clean Air - Part A, Section II.E.1 This Statement of Basis, Specific Statutory Authority and Purpose complies 24-4- with the requirements of the Administrative Procedure Act, C.R.S. 1973, Section 103(4) for adopted or modified regulations.

Basis The current provisions of Regulation No. 3, Part A, Section II.E.1, were designed to postpone reporting of non-criteria reportable pollutants by sources such as utility and non-utility industrial boilers and small municipal generators pending the results of ongoing studies being conducted by EPA pursuant to section 112(n) of the federal Clean Air Act. EPA was directed by Congress to complete those studies within three years after enactment of the federal act, i.e., by November 15, 1993; however, EPA has yet to do so. Both the Commission and the regulated community were hopeful that EPA would be able to finish its work by the fall of 1995 so sufficient time was available for utilities to meet the original December 31, 1995 deadline. The EPA did not meet that deadline, and the Commission granted a deferral until June 30, 1996. The EPA study is now the subject of further delay due to one of the individual constituent hazardous air pollutant studies and the extensive federal government furloughs in both late 1995 and early 1996 that substantially contributed to further delay the study's progress. Specific Authority Section 25-7-114.1 provides authority to the Commission to identify APEN reporting requirements. There currently are no federal reporting requirements concerning emissions of noncriteria reportable pollutants (NCRPs) or hazardous air pollutants (HAPs) from boilers. The current state regulations exceed federal regulatory requirements with respect to APEN reporting of emissions. Purpose A short postponement of the amended deadline serves a significant dual purpose and both the state and the regulated community benefit from a deferral in this instance. The postponement avoids forcing an uneconomic and non-beneficial compliance requirement at this time on the regulated community. Since there are no compliance obligations respecting HAP emissions from boilers, either in effect or proposed, EPA and Division interpretations provide that an applicant for a Title V operating permit need only list - not estimate quantities of emissions of - HAPs reasonable believed to be contained in the boiler emissions in an application for an operating permit. This revision is administrative in nature, and is not intended to affect air emissions.

I.Q. Adopted March 21, 1996 Part B, Section III.D.1.f, Section IV.C.1.e, Section IV.C.1.f, and Section IV.C. The changes to Regulation No. 3 were adopted in order to make it clear that the redesignation of the Denver metropolitan area as an attainment maintenance area for ozone does not change the requirement for gasoline stations in the Denver metropolitan area are to obtain a construction permit. Section III.D.1.f appears to imply that, upon such redesignation, gasoline stations in the Denver area would not be required to obtain a permit because that area would become an attainment area. However, Section III.D.5 goes on to provide that such exemptions do not apply because gasoline stations are subject to the RACT requirements of Regulation No. 7, section VI.B.3.b. The purpose of the revisions is simply to make it clear from the text of Regulation No. 3, Part B, Section III.D.1.f alone that gasoline stations in the Denver area are still required to obtain a construction permit. The revisions to Sections IV.C.1 and IV.C.4 were necessary to ensure that permits for de minimis exemptions from, and alternative means of compliance with, the requirements of Regulation No. 7 are subject to review and comment by the public and by EPA. Such comment and review is necessary because the sections I.A. and II.D of Regulation No. 7 provide the agency with the authority to revise the requirements that apply to a source without revising the SIP. The SIP requirements were developed and adopted following review and comment by EPA and the public. It follows that any change in those requirements with respect to any source or category of sources should also be subject to such public comment and review. The specific statutory authority to amend this regulation pertaining to exemptions from permit requirements is set out at § 25-7-114.2. Further statutory authority can be found in the Commission's authority to redesignate the area because such redesignation must include an approvable maintenance plan. The specific statutory authority to promulgate the rules necessary for redesignation is set out in § § 25-7-105(1)(a)(I) and (2); -106(1)(a); -107 (1) and (2.5); and -301.

This revision to Regulation No. 3 is not intended to reduce air pollution and will have no regulatory effect on any person, facility or activity.

For clarification, the Commission adopted these regulation revisions as follows: REGULATION OZONE SIP AND REVISION MAINTENANCE PLAN Part B, Section III.D.1.f Exists in Appendix C of the Ozone Maintenance Plan to be come a part of that document approved March 21, 1996 Part B, Section IV.C.1.e Adopted as subsequent and f; Section IV.C.4 regulation revisions to be submitted to the Governor and EPA Separately and concurrently as a revison to the SIP (and Maintenance Plan).

I.R. Adopted JUNE 20, 1996 Part A, Section V.C.1.f (Fees Correction)

Basis This revision corrects an erroneous regulation change requested by the Division in response to an EPA letter of September 19, 1994, which provided comments on the revisions to Regulation No. 3 for the operating permit program. The comment made by EPA was for clarification, not a requirement that the State should not charge for fugitive emissions. The change requested by the Division in 1995 included the term fugitive emissions in the paragraph of exclusions from the definition of regulated pollutant. Because of this change, the Division's authority under the statute to charge annual fees for fugitive emissions became confused which affected the Division's ability to cover its operating costs through fees. The regulation text also no longer conformed to section 25-7-114.7, as revised in the 1996 legislative session. Authority Section 25-7-114.6.(3), C.R.S., requires that the revenues from fees collected by the division approximate the annual appropriations to the division to carry out its duties with respect to stationary sources. Section 25-7-114.7, C.R.S., requires imposition of an annual emission fee on stationary sources, and defines what is a regulated pollutant for purposes of these fees.

Purpose These changes address an erroneous March 1995 revision made with respect to the charging of fees for fugitive emissions. The revision specifically exempted fugitive emissions and would significantly reduce the Division's ability to collect fees sufficient to cover duties with respect to stationary sources. In 1992 the General Assembly prohibited imposition of annual fees for fugitive dust or fugitive emissions as those terms were defined at the time in “commission rule I.B.1 of regulation number 3, 5 CCR 1001-5.” That rule defined only fugitive dust and the March 1995 regulatory revision inadvertently addressed fees on fugitive emissions as well. This rule conforms the regulation to statute, and eliminates any ambiguity between the two. Moreover, during the 1996 legislative session, the legislature in HB1271 amended Section 25-7- 114.7(1) to clarify the authority of the Commission to assess fees for fugitive emissions. The Commission intends that all forms of “fugitive dust,” regardless of whether the dust is of a size or substance to adversely affect public health or welfare, is excluded from the definition of “regulated pollutant”, for purposes of annual fees.

The Commission determines that these revisions are administrative in nature and are not intended to reduce air pollution.

I.S. Adopted June 20, 1996 Sect Part A, Section I.B.9, 59, Section V.C.12; Part B, Section III.D.2; Part C, Section II.A.b ion VI.A, E, H.3 and Section XII.A.1;

Appendices B, C and D for Hydrogen Sulfide Background The Division requests that the Commission adopt changes to Parts A and C and the Appendices within Regulation No. 3 to better reflect current EPA implementation of the Title V operating permit program. These changes include: (1) noting that a source major only for Total Suspended Particulate (TSP) is not required to obtain an Operating Permit in Part C; (2) deleting the Hazardous Air Pollutant reference beside the pollutant Hydrogen Sulfide (H S) in Appendices B, C, and D of Regulation No. 3 to reflect the federal delisting of this pollutant, and; (3) expanding the definition of “applicable requirement” in Part A to clarify that EPA-issued PSD permits are applicable requirements of the Operating Permit Program. A discussion of each of these changes follows.

The current notation under Regulation No. 3, Part C Section II.A, General Considerations, lists all major sources as being required to obtain Operating Permits. The EPA has issued a written guidance document indicating that the definition of regulated air pollutant for purposes of Title V applies only to emissions of PM-10, and not TSP. The current requirements reflected in Part C, Section II.A.1.b do not reflect the federal program requirements.

Currently, H S is reflected as a Hazardous Air Pollutant in Appendices B, C, and D. The EPA stated that the inclusion of H S on the federal list was a typographical error and removed the pollutant from the federal list. As a result of the reference to H S as a hazardous air pollutant in the Appendices, sources emitting H S have been charged annual fees for HAPs and sources major for H S emissions could be 2 2 required to get an Operating Permit.

The current definition of applicable requirement in Part A, Section I.B.9.a does not provide authority for EPA-issued PSD permits to be incorporated into Operating Permits. The definition of “applicable requirement” in Part 70 of the federal program includes permits issued by EPA. The State needs this regulatory change to make the rules consistent with the federal law. Currently, regulated entities subject to these requirements can obtain a permit from EPA or can voluntarily have the requirement placed in their Title V permits, but this situation does not support the intent behind the Title V program. Specific Authority The specific authority for changes to this regulation is found in the Colorado Pollution Prevention and Control Act. Section 25-7-105(12) provides authority to promulgate regulations which are necessary to implement the minimum elements of Title V. Section 25-7-103(1.5) allows the Commission to define air pollutant consistent with the federal act. Section 25-7-114.4(1)(1) and Section 25-7-114.4(3)(a) provide authority for promulgating regulations for the effective administration of construction and operating permits, and complying with all applicable requirements for operating permits. Section 25-7-114.5 provides authority for evaluating permit applications to determine whether operation and emissions comply with all applicable emission control regulations. Relevant federal law includes 42 U.S.C. Section 7661a(b)(5)(A), and 40 C.F.R. Sections 70.1(b), 70.3, and 70.6(a)(1) regarding applicable requirements. Commission action in making changes to Regulation No. 3 is taken pursuant to the above statutory provisions.

Purpose The amendments adopted by the Commission add language in Regulation No. 3, Part C, Section II.A.1.b indicating that a source that is major only for TSP is not required to receive an Operating Permit. This amendment ensures conformity with the federal law.

The amendments delete the reference to Hazardous Air Pollutant noted next to hydrogen sulfide in Appendices B, C, and D. This ensures consistency with the Federal delisting and eliminates the potential confusion for sources that will be major only based on emissions of hydrogen sulfide as a Hazardous Air Pollutant to obtain an Operating Permit. The amendments expand the definition of applicable requirement in Part A to include those permits issued by EPA under Part C and Part D of the federal act. This ensures conformity with the federal law.

The amendments correct a few typographical errors that existed in Regulation No. 3, Parts A, B, and C. Finally, the amendment to Part C, Section II.A.1.b, regarding TSP, is administrative in nature and is intended to reflect current EPA policy; it is not intended to reduce air pollution. The amendment to Part A, Section I.B.9.a, regarding the definition of applicable requirement, is administrative in nature and reflects the requirements of Part 70. This action regarding the definition of applicable requirement maximizes air quality benefits in the most cost effective manner by enabling sources to incorporate federally-issued PSD permit into their Operating Permit. Thereby, these sources will only be reporting to one enforcement authority. These revisions applicable to Part C are not to be submitted as part of the State Implementation Plan.

I.T. Adopted OCTOBER 24, 1996 Generic Part A, Section V, (with Regulation No. 5, Emissions Trading and Banking This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110, 25-7-110.5 and 25-7-110.8, C.R.S. Basis The Division has worked with the emissions trading and banking subcommittee to develop Regulation No. 5 and revisions to Regulation No. 3 for the purpose of implementing an EPA-approvable emissions trading program.

The subcommittee has developed a trading rule combining elements from the existing EPA guidance and the prior Commission rule. The subcommittee spent a great deal of time discussing the issues around the possible uses for credits, how credits could be certified, and how they should be traded and tracked. Emission reduction credits are intended to be granted only for reductions beyond compliance levels which are actual, quantifiable, surplus and enforceable. This rule is not intended to impose additional control limitations on sources. The rule does impose requirements to ensure that these basic criteria are met in order to guarantee that the source flexibility afforded by this program does not occur at the expense of air quality.

This rule is a revision to the SIP done only under the Commission's general authority. Thus, the trading and banking rule will not be state enforceable until after legislative review. Section 25-7-133(2), C.R.S. Additionally, because EPA must approve this change into the SIP, the Commission finds it appropriate to delay the effective date of these revisions until EPA approval as a SIP revision. This will provide the sources that might wish to participate the assurance that the rule is approved and that the credits are useable prior to the implementation of the program. The existing trading provisions in Regulation No. 3 will remain in effect until the new trading rules are approved by EPA. These constraints on the effective date of these revisions are reflected in the rule text approved by the Commission. In addition, in order to avoid confusion about what portions of the regulations are effective until EPA approval of the SIP change, the parts of Regulation No. 3 which will be repealed are printed in italics. State implementation plans are to include, among other things, enforceable emissions limitations and other control measures, means or techniques to meet the requirements of the Clean Air Act. These are to include economic incentives such as fees, marketable permits, and auctions of emissions rights. 42 U.S.C. 7410(a)(2)(A). These regulation revisions are being submitted as a SIP revision pursuant to the foregoing Clean Air Act requirements.

The following issues were identified by the subcommittee and noticed by the Commission for further consideration. The Commission discussed and resolved these issues in the course of this rulemaking proceeding and makes the following findings regarding these issues. Issue: Once used, does a permanent emission reduction credit (ERC) ever expire? Some believe that an ERC once used, even if from a permanent reduction, should expire after some period (e.g., 20 years). Conclusion: The Commission, based on the experience in the previous trading rules, decided that the permanent credits shall not expire after they are put into use. I.A.5. Issue: Should a decrease in electrical demand be usable to generate emission reduction credits? Conclusion: Because of the existence and operation of the national electrical grid system, the Commission believes that it would be far too difficult to verify that there had been a decrease in demand (a decrease in actual emissions) and not a variation in the grid structure, and therefore at this time finds it is inappropriate to allow a decrease in demand to generate ERCs.

1. I.A.6. Issue: As the proposed rule is written, inter-pollutant trading is allowed on a case-by-case basis subject to Division approval. The subcommittee and the Division recognized that a universal or standard protocol for approving such trades would be desirable, but that no officially-approved protocols for any inter-pollutant trades exist. Conclusion: The Commission agrees that there is currently insufficient scientific information available to support inter-pollutant trades in most cases. In order to ensure that the Division staff is not placed in the position of having to develop information and protocol to support an inter-pollutant trade proposal, the Commission finds that the burden of proving the acceptability of an inter-pollutant trade shall be placed on the source.
   1. Because of concerns expressed by the EPA that the protocol for inter-pollutant trades has not yet been developed, the language of VI.B. was amended to allow proponents of such trades the opportunity to make their case to the Division and EPA for approval. This amendment attempts to address the EPA concern.
      1. I.A.7. Issue: The proposed rule states that temporary credits must be credited and traded within the same “season” for seasonal pollutants. Should temporary credits be allowed to be traded from a season of lower concern to a season of higher concern? Conclusion: The Commission finds that the use of temporary credits should be restricted to the same season in which they were generated, or a season of lower concern. This will help mitigate any significant increases in seasons that may cause a violation of the NAAQS.
         1. Issue: At this time no internal provisions exist for program development and implementation. How should the cost of the program implementation and development be addressed? Conclusion: The Commission acknowledges that the Division will monitor the activity in the trading program and, if needed, legislative fee authority will be sought. Fees for permit changes required by this rule will be charged pursuant to Regulation No. 3. Nevertheless, the Commission acknowledges that resources are not currently available and funding may be needed for this program.

            I.A.8. Issue: Should the rule contain procedures or criteria specific to trading Hazardous Air Pollutants (HAPs)? The subcommittee and the Division agreed not to address this issue of HAPs in the proposed rule.

            Conclusion: The Commission is concerned that use of ERCs for criteria pollutants that contain or consist of HAPs could unduly increase the risks to communities and the environment in the vicinity of the credit-using source. Assessing relative risk is difficult, time-consuming and highly fact-specific to a particular source and trade. In order to address this concern, the Commission adopted Section VI.G.8 that requires that the HAPs reduced to generate the ERC must be of equal or greater toxicity than the HAPs contained in the emissions for which the ERC will be used in lieu of satisfying an applicable requirement. Section VI.G.8 does not operate as an emissions control regulation on any HAPs, but is simply a limitation on participation in the trading program. I.A.9. Issue: How is the base emission rate set? In order to show the level of actual emissions at a source before reductions for which credits are claimed, a period representative of normal operating conditions must be used.

            Conclusion: The Commission adopts provisions that require using the last twelve months' actual emission rate unless the last twelve months are not representative. The source may propose to the Division to use any consecutive twelve months in the last ten years as more representative of normal unit operations. This allows most sources to use a period which the Commission believes is likely to be representative of normal operating conditions. Where the source can show that the period is not representative, the rule allows source flexibility in determining their pre-reduction actual emissions. I.A.10. Issue: Should the Commission give authority to the Division to allow discounts from the ten percent contribution of emission reductions for air quality benefits for generators that participate in a voluntary pollution prevention program or other voluntary “beyond- compliance” programs? Should a generator be allowed to contribute only five percent of its their emissions reductions for air quality benefits as an incentive for participation in pollution prevention programs? Conclusion: The Commission agreed to provide such flexibility to the Division for generators that have voluntarily adopted comprehensive and facility-wide environmental programs such as a Pollution Prevention Program or other similar voluntary “beyond- compliance” programs.

            I.A.11. Issue: Should ERCs be used to satisfy Best Available Control Technology (BACT) or Lowest Achievable Emission Rate (LAER) requirements where a source triggers PSD or nonattainment New Source Review and must install BACT or LAER control technologies? Recent reports in the national press have indicated that EPA is giving serious consideration to allowing ERC use for BACT as it attempts to move away from command- and-control approaches to more contemporary market approaches. Conclusion: The Commission believes that ERCs may appropriately be used in lieu of the emissions reductions which would otherwise be achieved by application of the BACT technology requirements in situations where such technology requirements are not costeffective or exacerbate other pollutant emissions, and the use of an ERC would achieve the same purposes more efficiently. In such instances, it will be incumbent on the source to demonstrate that such a situation exists. In any case, however, the other PSD provisions and required analyses would apply to the source. PSD requirements are performed on future allowable emission rates. Because of concerns about the use of ERCs for BACT requirements, although the Commission has allowed ERCs to be used to meet BACT requirements in limited instances, it believes that this provision should only be applied prospectively for new BACT requirements and not to allow a source to remove BACT where it has already been installed. The Commission concludes that use of ERCs in lieu of emissions reductions from LAER is not appropriate because of the potential impacts on nonattainment areas.

            I.A.12. Issue: How will the local effect of “hot spot” pollutant trades be analyzed to prevent a local criteria pollutant exceedance due to emission credit transactions? Should the rule require modeling of criteria pollutants to assure there are no exceedances of the National Ambient Air Quality Standards? Conclusion: The Commission adopts the language in section VI.G.7 of Regulation No. 5 requiring modeling for all trades in order to ensure that trades do not cause or contribute to a NAAQS exceedance, an increment exceedance, or any violation of a required SIP provision. As that section reflects, the source may request that the Division waive the modeling requirement if the source can document to the Division's satisfaction that the trade has a negligible impact. I.A.13. Issue: How and who modifies the conformity budget for intersector trading? With mobile to stationary source trades, does the emission budget increase after the life of the credit has expired, and how is this accomplished? Conclusion: The Commission has provided for ERCs to be available to satisfy conformity requirements in accordance with the federal rules. The Transportation Conformity requirements (40 CFR Parts 51 and 93) presently allow for trades among emissions budgets where either a SIP revision or a SIP establishes mechanisms for such trades. 40 CFR §93.124(c). The Colorado emissions trading rule is intended to be a SIP revision establishing such a “mechanism” to allow for such trades. The Commission recognizes that, if mobile source emissions rise above the mobile source emissions budget in the state implementation plan, a plan revision may be necessary as otherwise required by state and federal law. I.A.14. Issue: What becomes of the “buffer” between a credit-generating source's potential to emit and its actual emissions before the reduction for which the credit is claimed? Does the generator get to keep a portion, all, or none of it? Conclusion: The Commission finds that methods exist to allow a source to retain the operating flexibility from a pre-reduction “buffer.” When a source wants such flexibility, it may claim credits for less than the entire reduction in emissions accomplished; the difference constitutes a new “buffer.” A source may use temporary credits to meet short- term operating needs.

            These methods retain flexibility for the source without relying on “paper reductions.” The Commission concludes that it is imperative that reductions for which credits are granted must be actual reductions. Allowing a source to retain a buffer from within the credits granted, as proposed by the Colorado Association of Commerce and Industry, would result in credits for “reductions” which did not actually occur. This result is unacceptable, particularly because sources determine their own permitted emissions levels when they file their Air Pollution Emission Notices.

            For example, a source with a ninety-five ton per year permitted level that actually emits fifty tons reduces its emissions to forty tons. The source should take a new permit with a level between forty and fifty tons (e.g., forty-five tons) so that the source has a five ton buffer. The source may then fluctuate its emissions between forty and forty-five tons without violating the permit, and generate temporary credits for any emissions reductions below forty-five tons.

            In order to ensure that reductions are actual, an ERC-generating source will not be able to increase its permitted emissions in the absence of a process or control modification. The source cannot, for example, simply file an APEN with higher emissions estimates and thereby increase its permitted emissions. The effect would be to allow emissions for which credits were already granted, resulting in “paper reductions.” This consequence is unacceptable.

            I.A.15. Issue: Should a closer relationship be established between emission trades and the various pollutant-specific SIP elements? With regard to the spatial distribution of emissions, the rule as proposed did not acknowledge any sub-regional emission budgets, dispersion modeling requirements, or other spatial considerations contained in attainment and maintenance demonstrations for specific SIP elements. Conclusion: The original proposed regulation did not have a modeling requirement for ERC use. The Division subsequently proposed that modeling be required prior to an ERC use unless the source requests that such modeling be waived and the source can show that the ERC use would have a “negligible” impact. The Colorado Association of Commerce and Industry expressed a concern that the Division would require costly or unnecessary modeling in most cases. This concern stems from the lack of definition of what is “negligible” in the judgment of the Division. The Commission believes that modeling should only be required where the location or circumstances of the ERC use would reasonably be expected to cause or contribute to a NAAQS violation, an increment exceedance, or violation of a SIP provision such as near a “hot spot” in a nonattainment area or where ambient conditions are within 5% of any applicable standard. The Commission, based on the explanation offered by the Division, believes that the modeling required by the rule as adopted will adequately address this issue. I.A.16. Issue: Should the emission trading rule clarify whether trades can take place among different air sheds/Air Quality Control Regions.

            Conclusion: The Commission adopts two levels of limitations on the geographic scope of trading. First, trades are limited to sources within the same nonattainment area or from a source in a nonattainment area to one in an attainment area. Second, all trades must be between sources within the same PM-10 PSD areas. These limitations are intended to avoid excessive impacts on local communities and Class I areas from long-distance trades.

            In addition to the issues discussed above, the Commission also considered concerns about granting ERCs for emission reductions which occurred in the past. This rule allows a source to use credits generated under the old rule and to seek credit certification for reductions which occurred prior to adoption of this rule. However, the Commission wants to emphasize that past emission reductions which have been used to demonstrate attainment or reasonable further progress for SIP purposes are not eligible to qualify as ERCs.

            The Commission recognizes that use of ERCs in lieu of compliance with an emission limitation may raise public concerns in the vicinity of the credit-using source. For this reason, the rule anticipates that notice to the Division will be required prior to use of ERCs. Permanent ERC use must be accomplished through a permit change. Temporary ERC use may occur only after an APEN is filed with the Division. Each of these documents is available to the public. Notices of ERC use will be published on the ERC Trading Network by the Division. The provisions of Regulation No. 3 requiring and allowing public notice and comment of proposed permits and modifications will also apply to permit actions to approve use of ERCs. The Commission believes that use of the Division's discretion to seek public comment needs to be supplemented in order to provide sufficient information to the public regarding proposed uses of ERCs. Accordingly, the Commission has included a requirement that the Division notify local governments in the affected area when the trade will result in the use of ERCs which would exceed the threshold for, or otherwise trigger, public notice and comment pursuant to section IV.C.1 of Part B, Regulation No. 3. The Commission anticipates that local governments will be able to use this notice to schedule informational meetings for citizens, which Commission members and appropriate Division staff will be able to attend. The Commission also emphasizes that the Division should exercise appropriate discretion to provide public notice and comment for trades that involve HAPs, which would be implemented by notifying the local government pursuant to the process described above. The Commission elected to preclude trading of elemental lead because of that pollutant's particular characteristics and modified the definition of criteria pollutant for the purposes of this regulation.

            The Commission included Section IV.A.1.d. in this regulation to ensure that ERCs are granted only for real overall reductions in emissions. This provision ensures that reductions will be creditable only if the emissions are not replaced in the airshed by another generator in a business of like kind. In order to assure that this program does not grant credit for “paper” reductions, the rule prohibits generating ERCs where this business shift will replace emissions within the same airshed. This determination will be made on a case-by-case, fact-specific basis.

Specific Statutory Authority These regulation revisions are adopted under the general authority of the Commission found in section 25-7-105(1), C.R.S. and are consistent with 42 U.S.C. 7410(a)(2)(A). Purpose This rule was proposed in order to provide the maximum flexibility for sources in meeting the state and federal requirements outlined under the possible uses for credits. The Commission makes the following findings in regards to the adoption of this regulation:

1. 1. The Commission has considered, and has based its decision, on the reasonably available, validated, reviewed and sound scientific methodologies and information made available by interested parties.
   1. 2. Where these revisions are not administrative in nature, the record supports the conclusion that the provisions adopted will result in a demonstrable reduction in air pollution. This reduction is accomplished through the retirement of 10% of the achieved reduction in emissions.
      1. 3. The revisions selected maximize the air quality benefits of the emissions standards that apply. The revisions selected are the most cost-effective based on the documents submitted by the parties under section 25-7-110.5, and provide the regulated community with flexibility in meeting emissions limitations. Although the requirement for increased emissions modeling may impose additional costs, the Commission believes this requirement is necessary to ensure that no violations of air standards will occur as a result of using ERCs.

I.U. Adopted November 21, 1996 - Appendices B, C This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, section 25-7-110.5, C.R.S.

Basis Regulations 3, 7 and the Common Provisions establish lists of Negligibly Reactive Volatile Organic Compounds (NRVOCs). The revisions adopted update the list of NRVOCs so that the state list remains consistent with the federal list. Additionally because perchloroethylene will no longer be listed as a VOC in Regulation No. 7, Section XII, Control of VOC Emissions from Dry Cleaning Facilities using Perchloroethylene as a Solvent, is being deleted.

Regulation No. 8 and 3 list the federal Hazardous Air Pollutants (HAPs). In the June 8, 1996 Federal Register the EPA removed Caprolactam (CAS 105-60-2) from the federal list of Hazardous Air Pollutants. The conforming changes in Regulation No. 3 Appendices B, C and D have been made to keep the list of federal HAPs in Regulation No. 3 consistent with the federal list. The list of HAPs in Regulation No. 8 has been removed and a reference to the list in Regulation No. 3 has been added. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act provides the authority for the Colorado Air Quality Control Commission to adopt and modify Regulations pertaining to organic solvents and photochemical substances. Section 25-7-109(2)(f) and 25-7-109(2)(g), C.R.S., grant the Commission the authority to promulgate regulations pertaining to organic solvents and photochemical substances. Sections 25-7- 105(1)(I)(b) and 25-7-109(2)(h) provide authority to adopt emission control regulations and emission control regulations relating to HAPs respectively. The Commission's action is taken pursuant to authority granted and procedures set forth in sections 25-7-105, 25-7-109, and 25-7-110, C.R.S. Purpose These revisions to Regulations No. 3, 7, 8 and the Common Provisions are intended to update the state lists of NRVOCs, the Ozone SIP, and HAPs for consistency with the federal lists. I.V. Adopted November 18, 1999 - Part C Incorporation by Reference of New and Revised Federal Regulations Concerning Compliance Assurance Monitoring (40 C.F.R. parts 64, 70, and 71) into Colorado Air Quality Control Commission Regulation No. 3, Part C, Addition of Section XIV.

Background This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedures Act, C.R.S. (1988), Sections 24-4-103(4) and (12.5) for adopted or modified regulations.

Pursuant to Section 114 of the 1990 Clean Air Act Amendments (“CAAA”), the U.S. Environmental Protection Agency (“EPA”) promulgated new regulations in 40 C.F.R. part 64 and revised regulations to 40 C.F.R. parts 70 and 71 to implement compliance assurance monitoring (“CAM”) for pollutant specific emission units at major stationary sources of air pollution that are required to obtain Title V operating permits. The requirements imposed by the CAM rule are separate from the requirements of EPA's “periodic monitoring” rule found at 40 C.F.R. Section 70.6(a)(3)(i). The periodic monitoring rule requires that each operating permit contain any emissions monitoring or test methods already required by an applicable requirement including any “periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit... such monitoring shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement.” See 40 C.F.R. Section 70.6(a)(3)(i)(B) (emphasis added). Subject to certain exemptions, the new CAM regulations require owners or operators of such sources to conduct monitoring that satisfies particular criteria established in the rule to provide a reasonable assurance of compliance with applicable requirements of the Act. Monitoring requirements contained in the rules focus on emissions units that rely on pollution control equipment to achieve compliance with applicable standards. The CAM regulations also provide procedures for coordinating these new requirements with the Operating Permits Program regulations. The CAM regulation generally will not require implementation of its requirements for most units subject to CAM until the first round of Title V permit renewals, which will generally be five years after initial Title V permit issuance.

The following table reflects the schedule by which CAM plans must be submitted by owners and operators of affected emissions units:

1. Pollutant Specific CAM Plan Due as part of CAM Plan Due as part of CAM Plan Due as part of Emission Unit (PSEU) the Operating Permit the Operating Permit the Operating Permit Size INITIAL Application REVISION Application RENEWAL Application “Large” PSEU (see 40 If Title V permit If a significant permit If Title V permit C.F.R. Section 64.5(a)) application is not 1 application was complete revision at an existing complete by 4/20/98 OR before 4/20/98 Title V source if PSEU part of a greenfield permit application after 4/20/98 “Other” PSEU (see 40 Never Never Always C.F.R. Section 64.5(b))

1“significant permit revision” is defined as “significant permit modification” in Colorado Air Quality Control Commission Regulation No. 3, Part A, Section I.B.36.h. This definition is subject to change when the federal part 70 revisions are promulgated and adopted by the Colorado Air Quality Control Commission.

In the event of a significant proposed operating permit modification that may trigger the earlier application of the CAM rule, the rule's provisions only become applicable with respect to those pollutant specific emission units for which the proposed operating permit revision is applicable. See 40 C.F.R. Section 64.5(a)(2).

Basis Regulations to implement these CAAA mandates were originally proposed in 1993 as the “enhanced monitoring” program. The enhanced monitoring proposal focused on monitoring air emissions as a means of ensuring source compliance with CAAA emission limitations and operating permit conditions. Major sources emitting either criteria pollutants or hazardous air pollutants would have been regulated under the program. The EPA received approximately 2,000 comment letters to the enhanced monitoring proposal. In response to these comments and through a series of stakeholder meetings, the agency decided to redesign the part 64 program. In 1995, the EPA promulgated a revised draft part 64 rule, which is now known as the CAM rule. The final CAM rule was promulgated on October 22, 1997. The Commission heard testimony from members of the public who were concerned that the implementation of the rule would have the effect of making existing applicable requirements more stringent. It is the Commission's understanding however that this is not the purpose nor should be the result of implementation of the CAM rule. In adopting the CAM rule by reference, the Commission does not intend that existing applicable requirements become more stringent. Authority Section 25-7-105(12), C.R.S. (1997) provides authority to promulgate regulations that are necessary to implement the minimum elements of Title V of the Clean Air Act. Section 25-7-106(6), C.R.S. (1997) provides the Commission with the authority to require testing, monitoring and record keeping. Commission action in promulgating these regulations is taken pursuant to the above statutory provisions. The Commission is not adopting the CAM rule in this incorporation by reference as part of the Colorado State Implementation Plan. For that reason, the provisions of Section 25-7-105.1 C.R.S. (1999) regarding federal enforceability do not apply.

Purpose Adoption by reference of the Federal CAM regulations contained in 40 C.F.R. part 64, and the revisions to 40 C.F.R. parts 70 and 71 make the regulations enforceable under Colorado law. Adoption of the regulations will not impose upon sources additional requirements beyond the minimum required by Federal law, and may benefit the regulated community by providing sources with up-to-date information. I.W. Adopted November 15, 2001 Regulation No. 3, Part B: Concerning Construction Permits, Including Regulations for the Prevention of Significant Deterioration This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5, C.R.S., and implements sections 25-7- 105(17) and 25-7-212, C.R.S.

Basis The rule revisions adopted implement the provisions of House Bill 99-1351. Regulation 3 contains permitting, monitoring, reporting, visibility protection, and fee requirements. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, section 25-7-105(17), C.R.S., provides the authority for the Commission to hold hearings to approve emission inventories related to state and federal lands. That subsection also directs the Air Pollution Control Division to prepare inventories for all state land management agencies with jurisdiction over state lands. Section 25-7-212, C.R.S., requires federal land managers to develop a plan for evaluating visibility in mandatory class I federal areas and to provide to the state an emission inventory for pollutants that affect any mandatory federal class I area within Colorado. This section also directs the Commission to use the inventories to develop control strategies for reducing emissions within the state of Colorado as a primary component of the visibility long-term strategies.

The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25- 7-110.5, C.R.S.

Purpose In general, HB 99-1351 was intended to provide mechanisms for the state to develop information important to its efforts to protect and enhance visibility, particularly in mandatory federal class I areas. This bill specifies the types of information that must be reported, collected and approved for use in the state implementation plan.

Federal agencies own and administer approximately 36% of the land in Colorado. Accordingly, the federal government has jurisdiction over many sources of emissions within the state. The inventory information developed under this regulation will provide additional information needed regarding these emissions, as well as those from similar state lands.

The rule requires that all federal and state lands have emission inventories approved by the Commission by December 31, 2002 and at least every five years thereafter._________________________The emission inventories must include emissions in both Colorado and other states that may affect visibility in mandatory federal Class I areas in Colorado.

House Bill 99-1351 requires the first submittal of inventory information by the federal land management agencies by December 31, 2001. The Commission anticipates that the affected federal land managers may rely upon regional inventory information to satisfy in part the requirements of this rule. The regional inventory development process is in its early stages. In addition, this hearing has been continued once and accordingly this rule may not become effective before the statutory deadline for the initial federal public lands emission inventory submittal. The Commission recognizes that this created uncertainty for the federal land managers. Nevertheless, the General Assembly established the deadline for submittal of the federal public lands inventory in 1999 and the federal agencies have known about this requirement for more than two years.

The Commission anticipates that submittal of the regional emission inventory will provide enough information to reasonably meet the December 31, 2001 deadline. In order to ensure that inventories reflect the best information available, however, the Commission allowed the federal agencies an additional six months to provide supplemental information to fully meet the requirements of this rule. Any such additional information must be submitted to the Commission by July 1, 2002. The Commission is to hold a public hearing on the inventories and approve them by December 31, 2002. This schedule will still allow sufficient time for the Commission to consider and approve, if appropriate, the inventory information submitted.

The Commission believes that the emissions subject to the reporting requirements of this rule are in the order of hundreds of tons per day of criteria pollutants and that this level of emissions justifies application to federal and state land managers of reporting requirements similar to those that apply to owners and operators of other large emissions sources.

The Commission has the authority to exempt from the inventory requirements any sources or categories of sources that it determines to be of minor significance. This rule does not contain such an exemption because little is known about several of the source categories (e.g., biogenic sources). The Commission may consider at a later time whether such an exemption is appropriate based on additional information that may be gathered.

The Commission elected for the purposes of this regulation to define federal land management agencies as those agencies that own and manage at least 50,000 acres of land in Colorado. The Commission intended to exempt agencies with relatively small amounts of land (e.g., Department of Commerce, Bureau of Reclamation) from having to prepare inventories. In the Commission's view, the benefit of developing information relative to emissions from lands managed by smaller agencies did not justify the administrative burden and costs of preparing such emission inventories. The Division is required by the bill's provisions to provide an inventory of emissions from activities of all state of Colorado land management agencies on state of Colorado lands that may affect visibility in Colorado's Class I areas. The inventory is to be delivered to the Commission by July 31, 2002 and at least every five years thereafter.

There are several requirements in the statute that have not been included in the regulation as they are largely policy directives to the Commission and Division from the General Assembly The rule revisions adopted address the procedural mechanisms for accomplishing the mandatory requirements of House Bill 99-1351. The Commission concludes that these rule revisions are adopted to implement prescriptive state statutory requirements, where the Commission is allowed no significant policy-making options, for the purposes of § 25-7-110.5, C.R.S. The Commission also concludes that it has no discretion under state law to adopt alternative rules that differ significantly from these revisions, for the purposes of § 25-7-110.8(1), C.R.S. Accordingly, the Commission did not include in the record some of the portions of the rulemaking prerequisites addressed in § 25-7-110.5, C.R.S. and did not make specific determinations regarding the factors listed in § 25-7-110.8(1), C.R.S. The Commission took into consideration the appropriate items enumerated in section 25-7-109(1)(b), C.R.S.

I.X. July 18, 2002 Statement of Basis, Specific Statutory Authority, and Purpose Revisions to Regulation Number 3 This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.

Basis Regulation No. 3 sets forth the Air Quality Control Commission's permitting and air pollutant emission notice programs for stationary sources. The regulation is organized into four parts: Part A contains general provisions and the Air Pollution Emission Notice (APEN) program; Part B deals with major and minor source Construction Permits; Part C sets forth the Operating Permit program; and, Part D provides the statements of basis, specific statutory authority and purpose for revisions to the regulation. Changes have been made to each of these parts to clarify ambiguous language, eliminate duplicative or unnecessary provisions and to make the requirements more understandable and easier to read. Additionally, some substantive changes have been made to address inconsistencies between the regulation and state and federal law, to improve the permit program from an air quality protection perspective and to eliminate unnecessary burdens on the regulated community. Appendices B and C to the regulation were deleted because they were duplicative of Appendix D. The majority of the revisions were proposed by the Air Pollution Control Division based on internal review and extensive discussions with interested parties. The Division's initial proposals were addressed at length during a subcommittee process involving the Commission, the Division, stakeholders and other interested parties. During this process, participants commented on the initial proposal and offered additional suggestions. The proposal presented to the Commission is a collaborative effort of the Division and interested stakeholders. Specific Statutory Authority The specific statutory authority for these revisions is set forth in various sections of the Colorado Air Pollution Prevention and Control Act (“Act”). Section, 25-7-105(1), C.R.S., gives the Air Quality Control Commission authority to promulgate rules and regulations necessary for the proper implementation of the Act, including regulations to assure attainment and maintenance of national ambient air quality standards, emission control regulations and a prevention of significant deterioration program. Section, 25-7-105(12), C.R.S., provides specific authority to establish, emission notice, construction permit and operating permit programs. Some of the statutory parameters for these programs are set forth in Sections 25-7-114, through 25-7-114.7 of the Act, and these sections in turn, provide statutory authority for the current revisions. Additional authority for these revisions is set forth in Section 25-7-106, C.R.S., in Section 25-7- 119, C.R.S., and in Section 25-7-132, C.R.S.

Purpose A review of the previous Regulation No. 3 revealed numerous stylistic, grammatical and formatting problems, language ambiguities and obsolete or duplicative provisions. These revisions are intended to update, clarify and streamline this regulation. Additionally, changes have been made to address developments in state and federal law, to eliminate inconsistencies between the regulation and state and federal law, and to improve the programs set forth in the regulation from an air quality perspective while eliminating or minimizing undue and unnecessary burdens on the regulated community.

I. Part A Revisions Part A of Regulation No. 3 contains a definitional section and provisions that set forth the Air Pollution Emission Notice program and other general provisions relevant to the notice and permit programs.

A. Definition Changes Numerous changes to the definition section were made. Primarily, these changes were designed to fix ambiguous language, to make the definitions more readable or to delete obsolete or duplicative definitions. For example, the definition of applicable requirement was modified to clarify that it included construction permit requirements that may have been modified during the operating permit process. This definition was always intended to include such modifications, but the old language failed to clearly explain that intent. Similarly, a change to the definition of major modification was necessary to clarify that the term included both physical changes and changes in the method of operation. The prior version omitted language resulting in an ambiguity regarding this intended meaning. Changes were made to the definition of net emissions increase to clarify that in calculating an increase or decrease of emissions, sources are not committed to use the emission numbers contained in an APEN. For example, when credible demonstrable evidence indicates a different amount of actual emissions exists, this information can be used to demonstrate a net emissions decrease. The definition of significant was also changed to clarify that the Prevention of Significant Deterioration (PSD) and New Source Review (NSR)-nonattainment area (NAA) programs do not apply to certain hazardous air pollutants. Specifically, the state PSD and NSR/NAA programs exempt those hazardous air pollutants that are exempt from the federal PSD and NSR/NAA programs pursuant to Section 112(b)(6) of the Federal Act. In addition to the clarifications, formatting and readability changes made to the definition section, a number of definitions were added or modified to reflect developments in federal law. For example, the Commission revised the definitions of actual emissions and major modification to include special provisions governing physical or operational changes at electric utility steam generating units. These changes were necessitated by changes in the federal regulations arising out of the decision in the Wisconsin Electric Power Company (“WEPCO”) case. The changes are applicable only to coal-fired electric utility steam generating units. Colorado law has required that NSR provisions be interpreted consistent with federal requirements since 1994 when the Colorado General Assembly enacted HB94- 1264, Section 25-7-109, C.R.S. The WEPCO definitions have been added, consistent with EPA's regulations, in order to clarify the meaning and scope of the changes to the definitions of actual emissions and major modification. Units need not have obtained a formal applicability determination from the Division before proceeding with the physical or operational change, although doing so is at the risk of the source. Actual emissions levels may be determined from the information found in periodic APENs which sources file pursuant to Regulation No. 3, Part A., or from other credible information, such as data from continuous monitoring systems. The filings by sources in the past, such as APENs, have enabled the Division to track sources' emission increases and decreases in a manner consistent with the provisions in the WEPCO rule, therefore, the Commission believes this formal adoption should not impose a greater burden on sources in Colorado than they have historically experienced. The Commission notes that, consistent with the legislature's intent, the WEPCO provisions have been implemented by the Division in recent years. One example is the flexibility provided a change qualifying as a pollution control project. The definition of major modification was further changed to restrict what constituted a temporary activity. Under both the old and new regulations, temporary activities are not considered to be part of a major stationary source. The old definition could be read, however, to exclude activities that constituted temporary sources under the PSD program. Such sources are subject to certain limited PSD requirements, and could be classified as an exempt temporary activity resulting in an exemption from those limited requirements. The new version clarifies that only temporary construction or exploration activities are exempt, thus preserving the applicability of the PSD temporary source requirements. Under the definitions for major modification and major source, while emissions from temporary construction are not included in determining whether there is a major modification or source, emissions from ongoing construction are included. Several parties requested clarification as to what constitutes ongoing construction. Such a determination must be made on a case-by-case basis, but generally, construction lasting more than two years will be considered ongoing. At the suggestion of the regulated community, the definition of commenced construction was supplemented to identify the entire range of pre-construction activities that may be undertaken without obtaining a construction permit.

Provisions governing regulation of nonroad engines have undergone a complete overhaul. In addition, the definition of nonroad engines was moved from the APEN exemption provisions in Part A, section II.D.1.sss., to the definition section of Part A. The prior regulation (section II.D.1.sss.) exempted certain nonroad engines from APEN and permitting requirements, but provided that these exemptions did not apply where the engines would otherwise trigger PSD, NSR-NAA review or other applicable requirements. Since the promulgation of that regulation, Congress amended the federal Clean Air Act. These amendments, as interpreted by the D.C. Circuit Court of Appeals, precluded the states from enacting emission control regulations for nonroad engines except under very restricted circumstances. The Court of Appeals held, however, that states could enact use restrictions such as restrictions on the hours of operation or amount of fuel usage. To address this situation, the regulated community requested that nonroad engines be specifically identified as non-stationary sources, thus exempting them from most, if not all, of the requirements of Regulation No. 3. While agreeing that nonroad engines should not be treated as stationary sources, the Division expressed a concern that a large aggregation of these engines might result in a violation of ambient air quality standards. To reconcile these conflicting concerns the regulatory revisions create a new state-only nonroad engine program for certain nonroad engines. The Commission's authority to establish a nonroad engine program and to regulate the operation of nonroad engines is set forth in 27-7-106(1) C.R.S., and through the legislative declaration in 25-7-102 C.R.S. Nonroad engines subject to the program must submit an APEN and pay appropriate APEN fees. If specified emission levels are tripped in the APEN, the program further requires that the source obtain a temporary permit and pay applicable permit fees. The permit will include such use restrictions as are necessary to prevent an exceedance of ambient air quality standards. Nonroad engines that are mobile or self-propelled equipment such as bulldozers, haul trucks, water trucks, loaders, shovels, backhoes, road graders, cranes or similar mobile equipment are not subject to the state-only permit program and are not required to obtain an APEN.

Whether an engine qualifies as a nonroad engine as opposed to a stationary source will depend on the facts of a particular case. To qualify as a nonroad engine under Regulation No.3, Part A, Section I.B.40.a.iii., the engine must be portable. What constitutes portable will be determined on a case-by-case basis. Additionally, such portable engines lose their status as nonroad engines if they remain at a location for more than twelve consecutive months. The regulation narrowly defines location such that use of a portable engine at multiple sites at a given source does not constitute use at a single location. This provision, however, is not intended to allow a source to circumvent the regulation by moving a given engine for the purpose of avoiding expiration of the twelve-month period. For sources that have voluntarily obtained permits for a nonroad engine(s) as defined in Regulation No. 3, Part A, Section I.B.40., prior to the effective date of this rule revision, a source may continue to operate under the existing permit. A modification or re-opening of the existing permit will effectively subject a source to the requirements set forth in the nonroad engine state-only permit program (Part A, Sections I.B.40.c. and I.B.40.d.)

During the public hearing on this rulemaking, the Commission raised concerns regarding the flexibility and responsiveness of the new state-only nonroad engine permit program in emergency or other unforeseen situations. In these situations, it is an operator's obligation to file an APEN and obtain a state-only nonroad engine permit under Sections I.B.40.c., and I.B.40.d., prior to the exceedance of any trigger level (i.e., hours of operation and/or emission limitation). This clarification is intended to increase program flexibility by ensuring that operators, including local and state government, will not be penalized when responding to emergencies and business planning conditions when such conditions subsequently trigger APEN and permit application requirements under the program. To enhance and foster program responsiveness, the Commission expects that the Division shall act to complete state-only nonroad engine permit applications as expeditiously as possible. In addition, under the authority set forth in Section 25-7-114.5(5), C.R.S., the Commission has determined that state-only nonroad engine permit applications shall not be designated as permit actions subject to public notice requirements.

B. Changes to APEN Program The Division proposed to add record keeping requirements to a number of APEN exemptions. The Commission did not adopt the specific record keeping language in Part A of the regulation. The intent of the Commission, however, is that sources should have records or other information sufficient to verify that an exemption from APEN requirements can be taken in accordance with the regulatory requirements. The Commission revised Section II.D.4.a.(vi), deleting the solvent return opening size requirement for small remote reservoir cold solvent degreasers contained in Section II.D.4.a.(vi)(A). The Commission also revised the emissions limit in Section II.D.4.a.(vi)(C) from 350 pounds of volatile organic compounds per year to one ton of emissions per year. These changes were requested by industry based on the argument that the existing provision was specifically designed for one particular source and is not useful for the broader industry. While sources are no longer required to meet the solvent return opening provision in order to claim the exemption, they are subject to the requirements contained in Regulation No. 7, Section X.B.

Measurement of the throughput threshold for the fuel storage and dispensing equipment APEN Exemption in Section II.D.1.ccc., was changed from a 30-day average to an annual average. In addition, language was added to clarify that sources in the Denver ozone attainment-maintenance area must still utilize Stage 1 vapor recovery on all tanks with a capacity greater than 550 gallons, as required by Regulation No. 7. While ordinarily sources subject to other applicable requirements would be precluded from taking the exemption under the APEN and construction permit exemption catchall provisions, in this particular instance, it is the Commission's intent that sources may take this exemption providing that the Regulation No. 7 vapor recovery requirements are met.

An APEN exemption for wet screening operations was added at Section I.D.1.cccc. Certain wet screening operations are subject to New Source Performance Standard (“NSPS”) Subpart OOO. This federal requirement requires that such facilities comply with a zero visible emissions standard. Ordinarily, a source that is subject to a New Source Performance standard precludes the source from taking an APEN exemption pursuant to the catchall provision in Section II.D.4. It is the Commission's intent that in this particular case, application of NSPS Subpart OOO shall not prevent a wet screening operation from taking the exemption.

A substantive change was made to the applicable de minimis levels for APEN exemptions in attainment and nonattainment areas. Under the prior regulation, if an area was nonattainment for any pollutant the lower nonattainment de minimis levels applied for all pollutants. This has been revised so that the lower levels will only apply to the pollutants for which the area is not in attainment. The exemption for agricultural operations was changed to provide greater clarity and to be consistent with the requirements of the State Act. Conforming changes were also made to the agricultural exemption set forth in Part C.

Because Regulation No. 3 and the Common Provisions Regulation under went contemporaneous review, the primary focus with respect to duplicative provisions was to eliminate duplications between the two regulations. Duplicative provisions that were only applicable to Regulation No. 3 were deleted from the Common Provisions Regulation. Provisions applicable to multiple regulations remain in the Common Provisions and were deleted from Regulation No. 3. Certain non-Regulation No. 3 duplications were also addressed. A full review of all the Commission's regulations was not undertaken at this time. It is expected that there are additional duplications that should be addressed as other regulations are opened for revision.

C. Fee Schedule Revisions The language governing the fee schedule for APENs and permit processing was simplified to provide that fees will be charged in accordance with the procedures and amounts set forth in the Act. This change alleviates the requirement of revising the regulation every time the statutory fee schedules change.

D. Confidentiality Provisions The rules governing confidentiality of documents submitted in connection with APENs and permit applications were changed to be consistent with the Act, and to clarify ambiguities in the prior regulation. In addition, more specific provisions were added regarding the process involved in asserting confidentiality and determining whether documents are in fact confidential. Under the prior regulation, the evaluation of confidentiality claims was very ambiguous making it difficult for the Division to determine whether a document was confidential, and providing sources no guidance as to the steps they should take to ensure confidential treatment of documents. The new provisions clearly set forth the rules for claiming confidentiality and for evaluating such claims. This should benefit the Division and the regulated community by providing a clear understanding of confidentiality protections. Pursuant to the State Act, information submitted as part of an air pollutant emission notice, Permit Application or Operating Permit reports is confidential only if it relates to secret processes or methods of manufacture or production. This limitation is reflected in the revised regulation. In contrast, Section 25-7- 111(4), C.R.S. provides that information obtained by the Division in connection with an enforcement action may be entitled to confidential treatment if it constitutes a trade secret. The current regulatory revision is not intended to alter or affect the protections offered under Section 25-7-111(4), C.R.S. In cases where the Division determines that certain information is not subject to confidential treatment the revisions shorten the notification period from fifteen to three days. This change was made based on the statutory mandate in the Colorado Open Records Act requiring release of public records within three days after a request for such records. The notification period is intended to allow the source the opportunity to obtain judicial relief from the Division's determination under the State Administrative Procedures Act prior to release of the information. While it is recognized that the three-day notification period may make it difficult for a source to institute a timely action, the requirements of CORA preclude a longer period. It is expected that the Division will take the steps necessary to provide actual notice to the source as soon as a determination is made, so that the source will have adequate time to protect its rights.

II. Part B Revisions The majority of revisions to Part B involve stylistic changes intended to improve the readability of the regulation. A small number of substantive revisions were made as described below. The provisions in Section IV.H., were changed to clarify the requirements for obtaining a final approval construction permit. The previous regulation required the source to demonstrate compliance with the initial approval construction permit. The Division was then required to conduct an inspection to determine compliance. Because an inspection during the initial approval period is not required by law, the new regulation makes the inspection discretionary. This provides necessary protections in those instances where an inspection may be needed. The provision was further modified to give the Division discretion as to whether to issue a final approval permit when there is a pending operating permit application. Requiring the issuance of a final approval permit was often an unnecessary step in situations where an operating permit would be issued shortly thereafter. To avoid confusion among sources when the Division elects not to issue a final approval construction permit, a notice will be provided to the source in writing. Similar flexibility was added to Section III.D.6., in cases where a previously permit exempt source loses its exemption based on addition of new emission points.

The prior regulation required submission of an operation, maintenance, and record keeping plan with the construction permit application. This provision ignored the reality that such plans are difficult to provide until after the source has been constructed. The new regulation provides that these plans must be submitted prior to obtaining final approval.

Significant changes were made to the post construction monitoring requirements for the PSD program. The changes were made to be consistent with the federal PSD regulations. The revisions provide flexibility to either require or waive post-construction monitoring. The revisions expand the provisions governing appeals of construction permits. The prior regulation provided that a source could appeal the Division's decision to the Commission, but failed to identify the process for such an appeal. The revision provides that the appeal must be made within thirty days after the issuance of the permit, denial or revocation, and will be held in accordance with the general rules for adjudicatory hearings. A similar provision was also added in Part C at Section V.E. Section V.B. has been changed to reflect that the Black Canyon of the Gunnison has been reclassified as a National Park. The boundaries of this area remain the same, and there is no change in the classification of this area as Class I or Class II.

Revisions have been made throughout the regulation to address changes in areas from the nonattainment classification to the attainment/maintenance classification. A search of the regulation was conducted to identify those provisions that depended on the area being classified as nonattainment. When a requirement remains in place after the reclassification of an area, the word nonattainment was changed to attainment/maintenance. Otherwise, no change was made. A substantive change was made to the applicable de minimis levels for permit exemptions in attainment and nonattainment areas. Under the prior regulation, if an area was nonattainment for any pollutant the lower nonattainment de minimis levels applied for all pollutants. This has been revised so that the lower levels will only apply to the pollutants for which the area is not in attainment to be consistent with a similar revision in Part A.

III. Part C Revisions As with Parts A and B, the majority of revisions to Part C include changes to improve readability and to clarify ambiguous provisions. Revisions were made to Section II.E., to fix poorly worded language. The new provision more clearly explains when an insignificant activity exemption can be taken. In addition, changes in II.E., and to other sections regarding exemptions included in Part C were made to conform to exemptions in Part A and B.

Provisions regarding the phase-in of the operating permit program were deleted since these provisions are now obsolete.

Section III.B.2., sets forth certain timing requirements with respect to submitting operating permit applications. The prior regulation was unclear as to the new legal requirements for sources subject to the operating permit requirement after start-up by operation of law. The revised provision clarifies that sources shall submit an application within twelve months of the effective date of the new requirements or at such other time specified in those requirements. The revisions also clarify that when a source subject to an operating permit is modified, an application to revise the permit must be submitted within twelve months of the modification.

In the past, significant confusion has arisen when a source seeks an operating permit prior to obtaining a final approval construction permit under Part B. Revisions to Sections V.A., and IV.B.3., clarify the rules governing these situations. These revisions also conform to the changes made in Part B, Section IV.H. The flexibility given to the Division to issue an operating permit absent a final approval construction permit under Section V.A., is intended to apply regardless of whether the source has commenced operation of the emission unit(s) at issue.

IV. Appendices Prior to this rulemaking, Regulation No. 3 included four appendices: Appendix A, Method for Determining De Minimis Levels for Non-Criteria Reportable Pollutants; Appendix B, 1993 Non-Criteria Reportable Pollutants; Appendix C, 1994 and Subsequent Years Non-Criteria Reportable Pollutants; and Appendix D, Non-Criteria Reportable Pollutants. This rulemaking deletes the original Appendix B and Appendix C because they are duplicative of Appendix D. Appendix D has been revised to Appendix B in order to maintain continuity in the regulation.

I.Y. October 17, 2002 Statement of Basis, Specific Statutory Authority and Purpose Revisions to Regulation No. 3 This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.

Basis Regulation No. 3 sets forth the Air Quality Control Commission's permitting and air pollutant emission notice programs for stationary sources. Pursuant to its statutory authority, the Commission may exempt certain stationary sources from permitting and APEN requirements where emissions from such sources are deemed to be insignificant. The Commission is revising the exemptions for condensate and crude oil tanks and condensate and crude oil loading equipment to ensure that the exemptions apply only where the emissions are truly insignificant. Additionally, the Commission is revising the provisions designed to ensure that in exempting certain sources from APEN and permit requirements, the regulation does not allow sources to avoid other state and federal requirements. This revision clarifies when application of other requirements prohibit sources from claiming exemptions. Specific Statutory Authority The specific statutory authority for these revisions is set forth in various sections of the Colorado Air Pollution Prevention and Control Act (“Act”). Section, 25-7-105(1), C.R.S., gives the Air Quality Control Commission authority to promulgate rules and regulations necessary for the proper implementation of the Act, including regulations to assure attainment and maintenance of national ambient air quality standards, emission control regulations and a prevention of significant deterioration program. Section, 25-7-105(12), C.R.S., provides specific authority to establish, emission notice, construction permit and operating permit programs. Some of the statutory parameters for these programs are set forth in Sections 25-7-114.1, and 25-7-114.2 of the Act, including the authority to exempt certain sources from APEN and Permitting requirements. These sections in turn, provide additional statutory authority for the current revisions. Purpose I. Condensate Tanks and Truck Loading Equipment Revisions to the crude oil and condensate storage tank exemption in Part A, Section II.D.1.ddd. and crude oil and condensate truck loading equipment exemption in Part A, Section II.D.1.ee., were proposed to address the issue of flashing emissions in condensate tanks. The exemptions, and a corresponding exemption in Part C, Section II.E.3.ee. and ddd., did not take flash emissions into account when the Commission initially adopted the exemption. The large quantity of volatile organic emissions that can be released during a flash event led to changes in the exemptions. Additionally, separate exemptions have been established for crude oil tanks and equipment and condensate tanks and equipment in recognition of the fact that flashing emissions from crude oil and condensate are significantly different. The Commission recognizes that in changing these exemptions a number of tanks and equipment that were previously exempt from APEN reporting, and therefore exempt from construction permitting requirements, will now be required to file APENs. The Commission does not believe, however, that these existing sources will now be required to obtain state construction permits, since such a requirement is triggered by construction or modification of a source, and not by a change in a previously applicable exemption. If, however, the tanks or equipment are modified after December 30, 2002, a construction permit will be required for the modification unless the tanks or equipment qualify under the revised APEN exemption or a construction permit exemption. During the revision process there was some discussion about what might constitute a modification that would trigger construction permit requirements. Based on the information provided to date, the Division and Commission do not currently believe that reworking of an existing well would constitute a modification under the regulations. Additionally, sources subject to PSD, NSR-NAA and Title V permitting requirements are required to have such permits regardless of their exemption status. The Commission notes to permit applicants that this change becomes effective on the effective date of this regulation.

In connection with these revisions, the Commission has also looked at the timing requirements set forth in Part A, Section II.D.1.lll., for submitting APENs and obtaining construction permits for tanks at crude oil and natural gas exploration and production sites. The Commission enacted this provision in 1993 to allow sources sufficient time to determine production levels before being required to submit APENs or construction permit applications. To affect this, Section II.D.lll. provided that APENs for oil and gas exploration and production operations were not required until 30 days after filing the well completion or recompletion report with the appropriate state or federal agency. Additionally, Part B, Section III.D.8. provided that applications for construction permits for such operations were due at the same time as the APEN filing. Based on discussions during the regulation revision process the Commission discovered that the well completion report must be filed before production levels can be determined and that the provision should have referenced the report of first production. Therefore, the Commission has revised Section II.D.1.lll. to clarify and effectuate the intent of the 1993 revisions. The Commission also recognizes the definition of condensate that appears in the Common Provisions Regulation does not include reference to an API gravity and therefore could be read to include crude oil. It is the Commission's intent that for the purposes of these exemptions, as well as APEN reporting, condensate should only include hydrocarbon liquids that fit within the Common Provisions definition and that have an API gravity of 40 degrees or above. The Commission anticipates revising the Common Provisions definition to more clearly reflect this intent the next time the Common Provisions regulation is opened for revision.

II. APEN Catchall Changes to the APEN catchall in Part A, Section II.D.4. and the construction permit catchall in Part B, Section III.D.5., were significantly reworked to add clarity. The prior versions were somewhat unclear as to both the effect of APEN and permitting exemptions on other applicable requirements and when otherwise exempt sources would be required to file APENs. While the revisions minimally change the substantive requirements of the two catchall provisions the new language is intended to more clearly express these requirements. The new language clarifies that sources that are exempt from APEN and/or construction permitting requirements are not, by virtue of that exemption, exempt from any other applicable requirements. Thus, for example, a source that is exempt from APEN or permitting requirements, must still comply with the Regulation No. 1 20% opacity standard. Likewise, an APEN exempt emission point at a major source is excused from paying APEN fees but may still need to be listed as an insignificant activity under the requirements of the Title V program. Additionally, where the emissions from a particular emission point would cause a source to avoid PSD, NSR-NAA or Title V information regarding that emission point cannot be omitted from any permit application, notwithstanding the fact that the emission point standing alone might be exempt from APEN or Construction Permit requirements.

The commission also requires that if the potential to emit, taking into account full design rate and continuous operation, triggers PSD or NSR requirements, the source must submit an Air Pollutant Emission Notice and apply for the appropriate permit, or must apply for a permit to limit the physical or operational capacity of the source such that the source is not considered to be a major source as defined in Section I.B.59 of Part A of this regulation. This language previously appeared in the catchalls, but was relocated to this statement of basis.

Finally, the revised catchall provisions subject certain emission points and sources to APEN and Construction Permit requirements notwithstanding the fact that such points and sources would otherwise be exempt. Sources specifically identified in the applicability section of any subpart of Part A of Regulation No. 6 (New Source Performance Standards), OR Regulation No. 8 (Hazardous Air Pollutants), Parts A,C,D, and E. This provision allows the Division to keep track of these points and sources, and ensure that the requirements of these programs are being properly followed. It must be noted, however, that wet screening operations subject to the exemption set forth at Part A, Section II.D.1.cccc may claim exemptions notwithstanding the fact that such sources are subject to New Source Performance Standard OOO.

STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE Revisions to Regulation No. 3 March 20, 2003 This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.

Basis Regulation No. 3 sets forth the Air Quality Control Commission's permitting and air pollutant emission notice programs for stationary sources. Pursuant to the statutory requirements set forth in § 24-4-12.5(d), C.R.S., the regulation must contain a statement that materials incorporated by reference are available for review at any state publications depository library. While complying with the other requirements set forth in § 24-4-12.5, C.R.S., the most recently promulgated version of Regulation No. 3 did not include a statement that materials incorporated by reference are available at the state publications depository libraries. In reviewing the recently promulgated revisions, Legislative Legal Services identified this omission and informed the commission office on November 27, 2002 that Regulation No. 3 would be included in a bill listing regulations that will sunset in May 2003, unless the required statement was included. To address this issue, the Commission has revised Regulation No. 3 to include the statement that materials incorporated by reference are available for review at any state publications depository. Specific Statutory Authority The specific statutory authority for this revisions is set forth in various sections of the Colorado Air Pollution Prevention and Control Act (“Act”) as well as the State Administrative Procedure Act. Section, 25-7-105, C.R.S., gives the Air Quality Control Commission authority to promulgate rules and regulations necessary for the proper implementation of the Act, including regulations to assure attainment and maintenance of national ambient air quality standards, emission control regulations and a prevention of significant deterioration program. Some of the information necessary to implement provisions in the regulations is contained in previously published documents by the U.S. Environmental Protection Agency and other agencies. Rather than repeat all of the existing language in these documents, it is common practice to incorporate materials by reference. This helps reduce the length of regulations and saves resources. Section, 24-4-103 (12.5), C.R.S., allows for incorporations by reference and requires that certain language be included in all state regulations that incorporate materials by reference. Specifically, § 24-4-12.5(d), C.R.S. requires that the Commission include the language adopted in this revision in Regulation No. 3.

Purpose The purpose of this proposed revision is to fully comply with section 24-4-103(12.5) and to adequately inform readers that materials incorporated by reference are available at any state publications depository library. This revision will also keep Regulation No. 3 in existence and prevent a gap in the division's notice, collection of fees and permitting authority.

COLORADO AIR QUALITY CONTROL COMMISSION ADOPTED: March 20, 2003