Mich. Admin. Code R. 336.1216

Current through Vol. 24-21, December 1, 2024

Section R. 336.1216 - Modifications to renewable operating permits

Rule 216.

(1) All of the following provisions apply to administrative permit amendments:

(a) An administrative permit amendment is a modification to a renewable operating permit that involves any of the following:

(i) A change that corrects typographical errors.

(ii) A minor administrative change at the stationary source.

(iii) A change that provides for more frequent monitoring or reporting.

(iv) A change in the ownership or operational control of a stationary source where the department determines that no other change in the permit is necessary, if a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new owner or operator has been submitted to the department. The new owner or operator shall also notify the department of any change in the responsible official or contact person regarding the renewable operating permit.

(v) A change that incorporates into the renewable operating permit the terms and conditions of a permit to install issued pursuant to R 336.1201, if the permit to install includes terms and conditions that comply with the permit content requirements contained in R 336.1213, the procedure used to issue the permit to install was substantially equivalent to the requirements of R 336.1214(3) and (4) regarding public participation and review by affected states, the process or process equipment is in compliance with, and no changes are required to, the terms and conditions of the permit to install that are to be incorporated into the renewable operating permit, and both of the following have occurred:

(A) A person has notified the department, in writing, within 30 days after completion of the installation, construction, reconstruction, relocation, or modification of the process or process equipment covered by the permit to install, unless a different time frame is specified by an applicable requirement and required by the permit to install.

(B) Upon completion of all testing, monitoring, and recordkeeping required by the terms and conditions of the permit to install, but not later than 12 months after the date of completion reported in subparagraph (A) of this paragraph unless a different time frame is specified in the permit to install, a person has requested that the contents of the permit to install be incorporated into the renewable operating permit as an administrative permit amendment. The request shall include all of the following:

(1) The results of all testing, monitoring, and recordkeeping performed by the person to determine the actual emissions from the process or process equipment and to demonstrate compliance with the terms and conditions of the permit to install.

(2) A schedule of compliance for the process or process equipment.

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

(b) An administrative permit amendment, for changes identified in subdivision (a)(i) to (iv) of this subrule, shall be reviewed and final action taken according to the following procedure:

(i) The department shall take final action to approve or deny the request for an administrative permit amendment within 60 days of the receipt of the request, unless the department requests additional information to clarify the request. If the department requests additional information, the department shall take final action within 60 days of the receipt of the additional information. Upon approval of the request, the change shall be incorporated into the renewable operating permit without providing notice to the public or affected states. The change shall be clearly designated as an administrative permit amendment.

(ii) Upon approval, the department shall transmit a copy of the administrative permit amendment to the person that requested the amendment and the United States environmental protection agency.

(iii) A person may implement the changes identified in the request for an administrative permit amendment, at the person's own risk, immediately upon submittal of the request to the department. After the change has been made, and until the department takes final action as specified in paragraph (i) of this subdivision, a person shall comply with both of the applicable requirements governing the change and the permit terms and conditions proposed in the application for the administrative amendment. If a person fails to comply with the permit terms and conditions proposed in the application for the administrative amendment during this time period, the terms and conditions contained in the renewable operating permit are enforceable.

(iv) The permit shield provided under R 336.1213(6) does not extend to administrative amendments made pursuant to subdivision (a)(i) to (iv) of this subrule.

(c) An administrative permit amendment, for changes identified in subdivision (a)(v) of this subrule, shall be reviewed and final action taken according to the following procedure:

(i) Within 60 days after receipt by the department of all the information required pursuant to subdivision (a)(v)(B) of this subrule, the department shall determine whether the information provides an acceptable demonstration of compliance with the terms and conditions of the permit to install and shall transmit a copy of the information together with that determination and a proposed amended renewable operating permit to the United States environmental protection agency for a 45-day review period pursuant to 40 C.F.R. § 70.8(c), adopted by reference in R 336.1902.

(ii) The department shall not take final action to approve the administrative permit amendment if the administrator of the United States environmental protection agency objects to its approval, in writing, within 45 days of receipt by the United States environmental protection agency, of the information required in paragraph (i) of this subdivision. The department shall follow the procedure specified in 40 C.F.R. § 70.8(c), adopted by reference in R 336.1902, in response to an objection by the administrator of the United States environmental protection agency.

(iii) A person may make the change authorized by the permit to install immediately after the permit to install has been approved by the department. After the change has been made, and until the department takes final action on the administrative permit amendment as specified in paragraph (ii) of this subdivision, the person shall comply with both the applicable requirements governing the change and the terms and conditions approved as a part of the permit to install. During this time period, the person may choose to not comply with the existing terms and conditions of the renewable operating permit that are modified by the permit to install. However, if the person fails to comply with the terms and conditions of the permit to install during this time period, the terms and conditions contained in the renewable operating permit are enforceable. The permit shield provided under R 336.1213(6) does not apply to the changes until the administrative permit amendment has been approved by the department.

(d) If the department denies the request for an administrative permit amendment, the department shall notify the person requesting the administrative permit amendment, in writing, that the request has been denied and the reasons for the denial. Any appeal of a denial by the department of an administrative permit amendment shall be pursuant to section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631. The denial of an administrative permit amendment pursuant to this rule is not a revocation of the permit to install.

(2) All of the following provisions apply to minor permit modifications:

(a) A minor permit modification is a change to a renewable operating permit for which none of the following provisions apply:

(i) The change would violate any applicable requirement.

(ii) The change would significantly affect any existing monitoring, reporting, or recordkeeping requirements contained in the renewable operating permit.

(iii) The change would require or affect any of the following:

(A) A case-by-case determination of a federally enforceable emission limitation or other standard.

(B) For temporary sources, a source-specific determination of ambient impacts.

(C) A visibility or increment analysis.

(iv) The change would seek to establish or affect a federally enforceable term or condition in the renewable operating permit for which there is no corresponding underlying applicable requirement and that the stationary source has assumed to avoid an applicable requirement to which the stationary source would otherwise be subject. Following are examples of the terms and conditions described in this paragraph:

(A) An emissions cap assumed to avoid classification as a modification under any applicable provision of title I of the clean air act.

(B) An alternative emissions limit adopted by the stationary source as part of an early reduction program pursuant to section 112(i)(5) of the clean air act.

(v) The change is defined as a major offset modification or a modification under any applicable requirement of sections 111 or 112, or part C of title I of the clean air act. A minor permit modification includes a change authorized by a permit to install issued pursuant to R 336.1201, if the permit to install includes terms and conditions that comply with the permit content requirement of R 336.1213 and none of the provisions of this subrule apply.

(b) An application requesting a minor permit modification shall contain reasonable responses to all requests for information in the minor permit modification application forms required by the department, including all of the following information:

(i) A description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs.

(ii) The proposed changes to the terms and conditions of the renewable operating permit that the person applying for the minor permit modification believes are adequate to address the change and any new applicable requirements.

(iii) A certification by the responsible official which states that the proposed modification meets the criteria for use of minor permit modification procedures and that, based on information and belief formed after reasonable inquiry, the statements and information in the application are true, accurate, and complete.

(iv) Completed forms, supplied by the department, for the department to use to notify the United States environmental protection agency and any affected states.

(c) A minor permit modification shall be reviewed and final action taken according to the following procedure:

(i) Within 5 working days of receipt by the department of an application for a minor permit modification that meets the requirements of subdivision (b) of this subrule, the department shall notify the United States environmental protection agency and any affected states of the requested minor permit modification.

(ii) The department shall notify the administrator of the United States environmental protection agency and the affected state, in writing, of any refusal by the department to accept any recommendations for the minor permit modification that the affected state submitted to the department during the time period for review specified in paragraph (iii) of this subdivision and before final action has been taken on the minor permit modification. The notice shall include the department's reasons for not accepting any recommendation. The department is not required to accept recommendations that are not based on applicable requirements.

(iii) The department shall not issue a final minor permit modification until after the United States environmental protection agencys 45-day review period or until the United States environmental protection agency has notified the department that the agency will not object to issuance of the minor permit modification. Within 90 days of the department's receipt of an application for a minor permit modification, or 15 days after the end of the United States environmental protection agencys 45-day review period, whichever is later, the department shall take 1 of the following actions and notify, in writing, the person applying for the minor permit modification of that action:

(A) Approve the permit modification as proposed.

(B) Revise the draft minor permit modification, with the consent of the person applying for the minor permit modification, and transmit the revised draft minor permit modification to the United States environmental protection agency. Transmittal of a revised draft minor permit modification to the United States environmental protection agency restarts the 45-day review period specified in this paragraph.

(C) Determine that the requested modification does not meet the minor permit modification criteria and should be reviewed under the significant modification procedures. The notification by the department shall specify why the request does not meet the criteria for a minor permit modification.

(D) Deny the permit modification application for cause. The notification by the department shall specify the reasons for the denial. Any appeal of a denial by the department of a minor permit modification shall be pursuant to section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631.

(d) A person may make the change proposed in the application for a minor permit modification, at the person's own risk, immediately after the department has received the application. After the change has been made, and until the department takes final action as specified in subdivision (c)(iii)(A) to (C) of this subrule, a person shall comply with both of the applicable requirements governing the change and the permit terms and conditions proposed in the application for the minor permit modification. During this time period, a person may choose to not comply with the existing permit terms and conditions that the application for a minor permit modification seeks to modify. However, if the person fails to comply with the permit terms and conditions proposed in the application for the minor permit modification during this time period, the terms and conditions contained in the renewable operating permit are enforceable.

(e) Notwithstanding the restrictions of subdivision (a) of this subrule, minor permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that the approaches have been approved by the administrator of the United States environmental protection agency as a part of Michigan's state implementation plan. The approaches shall identify the specific modifications that can be made using the minor permit modification procedures.

(f) The permit shield under R 336.1213(6) shall not extend to minor permit modifications.

(3) All of the following provisions apply to significant modifications:

(a) A significant modification is a modification to a renewable operating permit which is not an administrative permit amendment pursuant to subrule (1) of this rule, or is not a minor permit modification pursuant to subrule (2) of this rule, and which involves any of the following changes, unless the change is allowed under the terms and conditions of a permit to install that has been approved by the department pursuant to the requirements of subrule (1)(a)(v) of this rule:

(i) A modification under any applicable provision of title I of the clean air act.

(ii) Except as provided pursuant to subrule (1)(c)(iii) of this rule, any change that would result in emissions that exceed the emissions allowed under the renewable operating permit. The emissions allowed under the permit include any emission limitation, production limit, or operational limit, including a work practice standard, required by an applicable requirement, or any emission limitation, production limit, or operational limit, including a work practice standard, that establishes an emissions cap that the stationary source has assumed to avoid an applicable requirement to which the stationary source would otherwise be subject.

(iii) The change would significantly affect an existing monitoring, recordkeeping, or reporting requirement included in the renewable operating permit.

(iv) The change would require or modify a case-by-case determination of an emission limitation or other standard, a source-specific determination of ambient air impacts for temporary sources, or a visibility or increment analysis.

(v) The change would seek to establish or modify an emission limitation, standard, or other condition of the renewable operating permit that the stationary source has assumed to avoid an applicable requirement to which the stationary source would otherwise be subject.

(b) An administratively complete application for a significant permit modification shall be limited to address only the process and process equipment that will be affected by the change.

(c) The terms and conditions of a significant permit modification shall meet all the permit content requirements of R 336.1213 for the process and process equipment affected by the change.

(d) The procedure for taking final action on significant permit modification shall follow the requirements of R 336.1214, except that final actions on significant permit modifications shall be taken within 9 months of the receipt by the department of an administratively complete application.

(e) If a significant permit modification is denied, the department shall notify, in writing, the person applying for the modification. The notification of denial shall specify the reasons for the denial. Any appeal of a denial by the department of a significant permit modification shall be pursuant to section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631.

(4) All of the following provisions apply to state-only modifications:

(a) A state-only modification to a renewable operating permit involves changes to terms and conditions in the renewable operating permit that are designated as not enforceable under the clean air act pursuant to R 336.1213(5). If the change results in new applicable requirements that must be enforceable under the clean air act, then the change shall not be a state-only modification.

(b) An application requesting a state-only modification shall contain reasonable responses to all requests for information in the application forms required by the department, including all of the following information:

(i) A description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs.

(ii) The proposed changes to the terms and conditions of the renewable operating permit that the person applying for the state-only modification believes are adequate to address the change and any new applicable requirements.

(iii) A certification by the responsible official which states that the proposed modification meets the criteria for use of the state-only modification procedures and that, based on information and belief formed after reasonable inquiry, the statements and information in the application are true, accurate, and complete.

(c) A state-only modification shall be reviewed and final action taken within 90 days of the department's receipt of an application for the state-only modification. The department shall take 1 of the following actions and notify, in writing, the person applying for the state-only modification of that action:

(i) Approve the state-only modification as proposed.

(ii) Revise the draft state-only modification, with the consent of the person applying for the modification, and approve the revised modification.

(iii) Determine that the requested modification does not meet the criteria for a state-only modification and should be reviewed pursuant to subrule (1), (2), or (3) of this rule. The notification by the department shall specify why the request does not meet the criteria for a state-only modification.

(iv) Deny the state-only modification application for cause. The notification by the department shall specify the reasons for the denial. Any appeal of a denial by the department of a state-only modification shall be pursuant to section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631.

(d) A person may make the change proposed in the application for a state-only modification, at the person's own risk, immediately after the application has been received by the department. After the change has been made, and until the department takes final action as specified in subdivision (c)(i) to (iv) of this subrule, the person shall comply with both the applicable requirements governing the change and the permit terms and conditions proposed in the application for the minor permit modification. During this time period, the person may choose, at the person's own risk, to not comply with the existing permit terms and conditions that the application for a state-only modification seeks to modify. However, if the person fails to comply with the permit terms and conditions proposed in the application for the state-only modification during this time period, or if the state-only modification is denied by the department, the terms and conditions contained in the renewable operating permit are enforceable.

(e) The permit shield provided under R 336.1213(6) does not apply to the state-only modification until the changes have been approved by the department.

Mich. Admin. Code R. 336.1216

1995 AACS; 1996 AACS; 2003 AACS; 2016 MR 24, Eff. 12/20/2016