302 PERMIT CONTENT

302.1 Except as provided for in § 300.3(b), every permit issued under these operating permit rules shall include all applicable requirements that apply to the permitted source at the time of issuance. Each permit shall include the following elements:

1. (a) The permit shall specify emissions limitations and standards that constitute applicable requirements, and shall include those operational requirements and limitations necessary to assure compliance with all applicable requirements, inclusive of the following:
2. (1) The permit shall specify and reference the origin of and authority for each term or condition, and identify any difference in form as compared to the applicable requirement upon which the term or condition is based;
3. (2) The permit shall state that, where an applicable requirement of the Act is more stringent than an applicable requirement of regulations promulgated under Title IV of the Act, both provisions shall be incorporated into the permit and shall be enforceable by the Administrator; and
4. (3) If an applicable requirement allows a source to comply through an alternative emission limit or means of compliance, a source may request that an alternative limit or means of compliance be specified in its permit. An alternative emission limit or means of compliance shall be included in a source's permit upon a showing that it is quantifiable, accountable, enforceable, and based on replicable procedures. The source shall propose permit terms and conditions to satisfy these requirements in its application;
5. (b) The permit shall specify a fixed term. The Mayor shall issue permits for any fixed period requested in the permit application, not to exceed five (5) years, except as provided in subparagraphs (1) and (2) of this paragraph:
6. (1) Permits issued to affected sources shall in all cases have a fixed term of five (5) years;
7. (2) Permits issued to solid waste incineration units combusting municipal waste subject to standards under § 129(e) of the Act shall have a term not to exceed twelve (12) years. The permits shall be reviewed at least every five (5) years;
8. (c) To comply with monitoring and related recordkeeping and reporting requirements the following elements shall be required:
9. (1) Each permit shall contain the following requirements with respect to monitoring:
   1. (A) All emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any procedures and methods promulgated pursuant to § 114(a)(3) or 504(b) of the Act;
   2. (B) Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as

monitoring), periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit, as reported pursuant to § 302.1(c)(3). The monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements of this subparagraph; and

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

(2) With respect to recordkeeping, the permit shall incorporate all applicable recordkeeping requirements and require, where applicable, the following:

(A) Records of required monitoring information that include the following:

1. (i) The date, place as defined in the permit, and time of sampling or measurements;
2. (ii) The date(s) analyses were performed;
3. (iii) The company or entity that performed the analyses;
4. (iv) The analytical techniques or methods used;
5. (v) The results of the analyses; and
6. (vi) The operating conditions as existing at the time of sampling or measurement;

(B) Retention of records of all required monitoring data and support information for a period of at least five (5) years from the date of the monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit. If appropriate, the permit may specify that records may be maintained in computerized form;

(3) With respect to reporting, the permit shall incorporate all applicable reporting requirements and require the following:

(A) A permit issued under this chapter shall require the permittee to submit a report of any required monitoring at least every six (6) months. To the extent possible, the schedule for submission of the reports shall be timed to coincide with other periodic reports required by the permit, including the permittee's annual compliance certification;

(B) Each report submitted under subparagraph (3)(A) shall identify any deviations from permit requirements since the

previous report, and any deviations from the monitoring, recordkeeping and reporting requirements under the permit;

1. (C) In addition to monitoring reports, each permittee shall be required to submit supplemental reports as follows:
2. (i) Any deviation resulting from emergency as defined in § 399.1 shall be reported within two (2) working days of the date on which the permittee first becomes aware of the deviation, if the permittee wishes to assert the affirmative defense authorized under § 302.7;
3. (ii) Any deviation that poses an imminent and substantial danger to public health, safety, or the environment shall be reported immediately;
4. (iii) Any other deviations that are identified in the permit as requiring more frequent reporting shall be reported on the schedule specified in the permit; and
5. (iv) All reports of deviations shall identify the probable cause of the deviations and any corrective actions or preventative measures taken;
6. (D) Every report submitted under this subsection shall be certified by a responsible official, except that if a report of a deviation required under subparagraph (3)(C) must be submitted within ten (10) days of the deviation, the report may be submitted in the first instance without a certification if an appropriate certification is provided within ten (10) days thereafter, together with any corrected or supplemental information required concerning the deviation; and
7. (E) A permittee may request confidential treatment for information in any report submitted under this subsection pursuant to the limitations and procedures set out in § 301.1(c);
8. (d) If the source is required to develop and register a risk management plan pursuant to § 112(r) of the Act, the permit need only specify that it will comply with the requirement to register such a plan. The content of the risk management plan need not itself be incorporated as a permit term;
9. (e) The permit shall prohibit emissions exceeding any allowances that the source lawfully holds under Title IV of the Act or the regulations promulgated thereunder:
10. (1) No permit revision shall be required for increases in emissions that are authorized by allowances acquired pursuant to the Acid Rain Program; Provided, that the increases do not require a permit revision under any other applicable requirement;
11. (2) No limit shall be placed on the number of allowances held by the source. The source may not, however, use allowances as a defense to

noncompliance with any other applicable requirement; and

1. (3) Any such allowance shall be accounted for according to the procedures established in regulations promulgated under Title IV of the Act.
2. (f) The permit shall include a severability clause to ensure the continued validity of the various permit requirements in the event of a challenge to any portions of the permit;
3. (g) The permit shall include provisions stating the following general requirements:
4. (1) The permittee must comply with all conditions of the permit. Any noncompliance with the permit constitutes a violation of the Act and this chapter and is grounds for enforcement action or for permit revocation or modification or for denial of a permit renewal application;
5. (2) It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit;
6. (3) The permit may be reopened or revoked, for cause. Except as provided under § 303.5(b) for minor permit modifications, the filing of a permit reopening, revocation or termination, or of a notification of planned changes or anticipated noncompliance does not stay any permit condition;
7. (4) The permit does not convey any property rights of any sort, or any exclusive privilege; and
8. (5) The permittee shall furnish to the Mayor, upon receipt of a written request and within a reasonable time, any information that the Mayor may request to determine whether cause exists for, reopening, or revoking the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the Mayor copies of records required to be kept by the permit. The permittee may make a claim of confidentiality pursuant to § 301.1(c) for any information or records submitted under this paragraph;
9. (h) The permit shall provide that the permittee will pay fees to the Mayor consistent with the fee schedule established under § 305;
10. (i) The permit shall provide that no permit revision shall be required under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are provided for in the permit;
11. (j) The permit shall include terms and conditions which will meet all the applicable requirements and the requirements of this chapter for each of the operating scenarios described in the permit application and eligible for approval. The permit shall authorize the permittee to make changes among operating scenarios authorized in the permit without notice, but shall require the permittee contemporaneously with making a change from one operating scenario to another to record in a log at the permitted facility the scenario under which it is operating; and
12. (k) The permit shall include terms and conditions, if the permit applicant requests them, for the trading or averaging of emissions increases and decreases in the permitted stationary source, to the extent that the applicable requirements provide for trading or averaging such increases and decreases without a case-by-case approval of each

emissions trade. The terms and conditions shall include terms under §§ 302.1 and 302.3 to determine compliance and shall satisfy all requirements of the applicable requirements authorizing the trading or averaging. The terms and conditions for the trading or averaging of emissions shall meet all applicable requirements and the requirements of the operating permits program.

302.2 Each Part 70 permit shall have the following features with respect to enforceability:

(a) Except as provided in § 302.2(b), all terms and conditions in a permit issued under this chapter, including any provisions designed to limit a source's potential to emit, are enforceable by the Mayor, by the Administrator, and by citizens under the Act; and

(b) Notwithstanding § 302.2(a), the Mayor shall designate as not being federally-enforceable under the Act any terms and conditions included in the permit that are not required under the Act or any of its applicable requirements, and such terms and conditions shall not be enforceable by the Administrator and citizens under the Act. Terms and conditions so designated shall not be subject to the requirements of §§ 303 and 304 of this chapter or of 40 CFR Part 70. Terms and conditions designated under this paragraph may be included in an addendum to the source's permit.

302.3 All permits issued under Part 70 shall contain the following elements with respect to compliance:

(a) Consistent with § 302.1(c), compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any document (including reports) required by a permit under this chapter shall contain a certification by a responsible official as to the results of the required monitoring pursuant to § 301.4;

(b) Inspection and entry requirements that require that, upon presentation of credentials and other documents as may be required by law, the permittee shall allow authorized officials of the Mayor to perform the following:

(1) Enter upon the permittee's premises where a source is located or emissions-related activity is conducted, or where records shall be kept under the conditions of the permit;

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

(3) Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit; and

(4) As authorized by the Act, sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements;

(c) A schedule of compliance to the extent required under § 301.3(h)(3);

(d) To the extent required under an applicable schedule of compliance and § 301.3(h), progress reports, to be submitted semiannually, or more frequently if specified in the applicable requirement or by the Mayor. The progress reports shall contain the following:

(1) Dates for achieving the activities, milestones, or compliance required in

the schedule of compliance, and dates when the activities, milestones or compliance were achieved; and

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

(e) Requirements for compliance certification with terms and conditions contained in the permit that are federally-enforceable, including emission limitations, standards, or work practices. Each permit shall specify the following:

(1) The frequency (which shall be annually unless the applicable requirement specifies submission more frequently) of submissions of compliance certifications;

(2) In accordance with § 302.1(c), a means for monitoring the compliance of the source with emissions limitations, standards, and work practices contained in applicable requirements;

(3) A requirement that the compliance certification include the following:

(A) The identification of each term or condition of the permit that is the basis of the certification;

(B) The permittee's current compliance status;

(C) Data and status reports demonstrating whether compliance was continuous or intermittent;

(D) The method(s) used for determining the compliance status of the source, currently and over the reporting period as required by § 302.1(c); and

(E) Any other facts as the Mayor may require to determine the compliance status of the source;

(4) A requirement that all compliance certifications be submitted to the Administrator as well as to the Mayor;

(5) Any additional requirements as may be specified pursuant to §§ 114(a)(3) and 504(b) of the Act; and

(f) Any other provisions as the Mayor may require.

302.4 General permits may be issued under the following circumstances:

(a) The Mayor may issue a general permit, complying with all requirements applicable to other Part 70 permits, to any source category if the Mayor concludes that the category is appropriate for permitting on a generic basis. No general permit may be issued for affected sources under the Acid Rain Program unless otherwise provided in regulations promulgated under Title IV of the Act;

(b) A general permit may be issued for a source category based upon an application from a source within the source category or upon the Mayor's own initiative. The Mayor shall, following receipt of an application for a general permit, or upon a determination that issuance of a general permit for a category of sources may be appropriate, follow the same procedures for issuance of a general permit as for any

other permit issued under Part 70;

1. (c) A general permit may be issued for the following purposes:
2. (1) To establish terms and conditions to implement applicable requirements for a source category;
3. (2) To establish terms and conditions to implement applicable requirements for specified categories of changes to permitted sources;
4. (3) To establish terms and conditions for new requirements that apply to sources with existing permits; and
5. (4) To establish federally-enforceable caps on emissions from sources in a specified category;
6. (d) The Mayor may issue a general permit if the Mayor finds the following:
7. (1) There are several permittees, permit applicants, or potential permit applicants who have the same or substantially similar operations, emissions, activities, or facilities;
8. (2) The permittees, permit applicants, or potential permit applicants emit the same types of regulated air pollutants;
9. (3) The operations, emissions, activities, or facilities are subject to the same or similar standards, limitations, and operating requirements; and
10. (4) The operations, emissions, activities, or facilities are subject to the same or similar monitoring requirements;
11. (e) A general permit issued under this section shall identify criteria by which sources may qualify for the general permit. After the Mayor has issued a general permit, the source named in the permit may submit a request for coverage under the permit subject to the following conditions:
12. (1) A request for coverage under a general permit shall identify the source and provide information sufficient to demonstrate that the source meets the general permit qualification criteria and that the source is in compliance with the general permit. The request shall provide any additional information the general permit specifies; and
13. (2) A final action approving a request for coverage under a general permit shall not be subject to public comment or judicial review;
14. (f) A copy of the general permit, together with a list of sources approved for coverage under it, shall be kept on file for public review;
15. (g) A general permit issued under this section shall expressly provide that any source approved for coverage under a general permit shall be entitled to the protection of the permit shield provisions of § 302.6 for all operations, activities, and emissions addressed by the general permit. Notwithstanding the shield provisions of § 302.6, the source shall be subject to enforcement action for operation without a permit if it is subsequently determined that the source does not qualify for the conditions and terms of the general permit; and

(h) 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 coverage under the general permits for the operations, activities, and emissions that are so eligible. If the source is required under § 300 to obtain a permit addressing the remainder of its operations, activities, and emissions, it must apply for and receive a permit addressing those items not covered by general permits.

302.5 The Mayor may issue a single permit authorizing emissions from similar operations by the same source owner or operator at multiple temporary locations. The operation shall be temporary and involve at least one change of location during the term of the permit. No affected source shall be permitted as a temporary source. Permits for temporary sources shall include the following:

1. (a) Conditions that will assure compliance with all applicable requirements at all authorized locations;
2. (b) Requirements that the owner or operator notify the permitting authority at least ten (10) days in advance of each change in location; and
3. (c) Conditions that assure compliance with all other provisions of this section.

302.6 A permit shield shall apply to a Part 70 source under the following conditions:

1. (a) The Mayor may expressly include in a Part 70 permit a provision stating that compliance with the conditions of the permit shall be deemed compliance with any applicable requirements as of the date of permit issuance; Provided, that:
2. (1) The applicable requirements are included and specifically identified in the permit; or
3. (2) The Mayor, in acting on the permit application or revision, determines in writing that other requirements specifically identified are not applicable to the source, and the permit includes the determination or a concise summary of the determination;
4. (b) A Part 70 permit that does not expressly state that a permit shield exists shall be presumed not to provide a shield;
5. (c) Nothing in this section or in the permit shall alter or affect the following:
6. (1) The provisions of § 303 of the Act, including the authority of the Administrator under that section;
7. (2) 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;
8. (3) The applicable requirements of the Acid Rain Program, consistent with § 408(a) of the Act; or
9. (4) The ability of the Administrator to obtain information from a source pursuant to § 114 of the Act.

302.7 Emergencies shall be provided for in the following manner:

1. (a) An emergency constitutes an affirmative defense to an action brought for noncompliance with the technology-based emission limitations if the conditions of § 302.7(b) are met;

(b) The affirmative defense of an emergency shall be demonstrated through properly signed, contemporaneous operating logs, or other relevant evidence that:

(1) An emergency occurred and that the permittee can identify the cause(s) of the emergency;

(2) The permitted stationary source was at the time being properly operated;

(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

(4) The permittee submitted notice of the emergency to the Mayor within two (2) working days of the time when emission limitations were exceeded due to the emergency. The notice shall contain description of the emergency, any steps taken to mitigate emissions, and corrective actions taken pursuant to § 302.1(c)(3)(C)(i) of this section;

(c) In any enforcement proceeding, the permittee seeking to establish the occurrence of an emergency has the burden of proof; and

(d) This provision is in addition to any emergency or upset provision contained in any applicable requirement.

302.8 Each permit issued under Part 70 shall provide that a permitted stationary source is expressly authorized to make a § 502(b)(10) change within the stationary source without a permit amendment or permit modification, if the change is not a modification under any provision of Title I of the Act, does not include any change in the date of the source's compliance schedule and the change does not result in a level of emissions exceeding the emissions allowable under the permit whether expressed therein as a rate of emissions or in terms of total emissions under the following conditions:

(a) Before making a change under this provision, the permittee shall provide advance written notice to the Mayor and to the Administrator, describing the change to be made, the date on which the change will occur, any changes in emissions, and any permit terms and conditions that are affected including those which are no longer applicable. The permittee shall thereafter maintain a copy of the notice with the permit, and the Mayor shall place a copy with the permit in the public file. The written notice shall be provided to the Mayor and the Administrator at least seven (7) days before the change is to be made, except that this period may be shortened or eliminated as necessary for a change that must be implemented more quickly to address unanticipated conditions posing a significant health, safety, or environmental hazard. If less than seven (7) days notice is provided because of a need to respond more quickly to the unanticipated conditions, the permittee shall provide notice to the Mayor and the Administrator immediately upon learning of the need to make the change;

(b) A permitted source may rely on the authority of this section to trade increases and decreases in emissions within the stationary source, where the applicable requirements provide for the emissions trades without a permit revision. In such a case, the advance written notice provided by the permittee shall identify the underlying authority authorizing the trading and shall state when the change will occur, the types and quantities of emissions to be traded, the permit terms or other applicable requirements with which the source will comply through emissions

trading, and any other information as may be required by the applicable requirement authorizing the emissions trade;

(c) The permit shield provided under § 302.6 shall not apply to changes made under this section, except those provided for in § 302.8(d); however, the protection of the permit shield will continue to apply to operations and emissions that are not affected by the changes; Provided, that the permittee complies with the terms and conditions of the permit applicable to such operations and emissions. The shield may be reinstated for emissions and operations affected by the change:

(1) If subsequent changes cause the stationary source's operations and emissions to revert to those contained in the permit and the permittee resumes compliance with the terms and conditions of the permit; or

(2) If the permittee obtains a significant modification to the permit pursuant to § 303.5(d) to codify the change in the permit, and the modified permit expressly provides protection under the shield for the change; and

(d) Upon the request of a permit applicant, the Mayor shall issue a permit that contains terms and conditions allowing for the trading of emissions increases and decreases in the permitted stationary source solely for the purpose of complying with a federally-enforceable emissions cap that is established in the permit independent of otherwise applicable requirements. The permit applicant shall include in its application proposed replicable procedures and permit terms that assure that the emissions trades are quantifiable and enforceable and comply with all applicable requirements and §§ 302.1 and 302.3. The permit shield under § 302.6 shall apply to permit terms and conditions authorizing such increases and decreases in emissions. Under this paragraph, the written notification required under this section shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.

302.9 Except as provided in § 302.9(e), a stationary source may make any change in its operations or emissions that is not addressed or prohibited in its permit, without obtaining an amendment or modification of its permit. The changes shall be subject to the following requirements and restrictions:

(a) The change shall meet all applicable requirements and may not violate any existing permit term or condition;

(b) The permittee shall provide contemporaneous written notice of the change to the Mayor and to the Administrator. The 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;

(c) The change shall not qualify for the permit shield under § 302.6;

(d) The permittee shall keep a record describing all 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; and

(e) No permittee may make, without a revision of its permit, a change that is not addressed or prohibited by its permit if such change is subject to any requirements under Title IV of the Act or is a modification under any provision of Title I of the Act.

SOURCE: Final Rulemaking published at 40 DCR 8105, 8114 (November 19, 1993); as Final Rulemaking published at 48 DCR 4479 (May 18, 2001); as Final Rulemaking published at 50 DCR 2343 (March 21, 2003).