001 The owner or operator of a source is to obtain an operating permit for that source in accordance with this chapter unless exempted under 001.04 and 001.05:
001.01 Class I Permits. Any Part 70 source is to obtain a Class I permit.
001.01A “Part 70 source” means any source subject to the permit requirements as provided in 40 CFR § 70.3(a) and 70.3(b).
001.01B 40 CFR § 70.3 is adopted and incorporated by reference.
001.02 Synthetic Minor Source Permits. Any major source or emissions unit required to obtain a Class I permit based on potential emissions with actual emissions below major source levels may request that potential to emit be limited to below the major source threshold, and may apply for a Class II permit, as a synthetic minor, which provides practically enforceable limits to potential emissions.
001.03 Class II Permits. A Class II permit is required for sources that meet any of the following criteria:
001.03A Any source or emissions unit that is not a Part 70 source with actual emissions above the following:
001.03A1 Fifty (50) tpy or more of PM10 emissions.
001.03A2 Fifty (50) tpy or more of SO2 or SO3, or any combination of the two.
001.03A3 Fifty (50) tpy or more of oxides of nitrogen (calculated as NO2).
001.03A4 Fifty (50) tpy or more of volatile organic compounds (VOC).
001.03A5 Fifty (50) tpy or more of carbon monoxide.
001.03A6 Two and one-half (2.5) tpy or more of lead.
001.03A7 Five (5) tpy or more of any hazardous air pollutant or an aggregate of twelve and one-half (12.5) tpy or more of any hazardous air pollutants.
001.03B An incinerator used for refuse disposal or for the processing of salvageable materials except any refuse incinerator located on a residential premise containing five or less dwelling units used only for disposal of residential waste generated on that property.
001.04 Exemptions.
001.04A Any source or emissions unit with potential emissions above major source thresholds and actual emissions below the levels specified in Section 001.03A above will be exempt from the duty to obtain an operating permit under the following conditions, known as the Low Emitter Rule, unless Section 001.03B applies.
001.04A1 The source is not otherwise required to obtain an operating permit;
001.04A2 The source has submitted a demonstration and maintains records on site, updated at least monthly, for the most recent five years that actual emissions for each regulated pollutant do not exceed the levels specified in Section 001.03A above.
001.04A3 Credit for controls which are not required under the provisions of this Title will only be allowed if documentation is maintained that demonstrates that controls were continuously maintained and operated as specified by the manufacturer to achieve the level of efficiency for which credit is sought;
001.04A4 Additional information, such as an annual emissions inventory or information necessary to determine applicability or to determine that emissions from the source in conjunction with all other emissions will not prevent attainment or maintenance of the ambient air quality standards specified in Chapter 2, will be provided upon Department request; and
001.04A5 Compliance with the provisions of this section does not shield the owner or operator from the duty to comply with any other applicable requirement under Title 129, nor shield the owner or operator from enforcement action for the violation of any other applicable requirement under Title 129.
001.05 Source Category Exemptions.
001.05A Source categories exempted under 40 CFR § 70.3(b)(4) will be exempted from obtaining a Class I permit.
001.05B A source required to be covered by an operating permit solely because of the presence of a single engine powered generator where the sole function is to provide back-up power when electrical power from the local utility is interrupted will be exempted from obtaining any operating permit. This exemption does not apply to any peaking unit at an electric utility or to any other generator used when power is available from the utility. For the exempted unit, the source is required to submit a report of hours of operation to the Department upon request and also by the end of the month following any month in which hours of operation for that exempted unit exceeds 500 hours per year.
001.05C All sources and source categories subject only to regulations or requirements under Section 112(r) of the Act.
001.06 Except as provided in Section 008 of this Chapter, a source will not operate after the time that it is required to submit a timely and complete application, except in compliance with a permit issued under an approved operating permit program. If an operating source submits a timely and complete application for permit issuance, or for renewal, the source's failure to have a permit is not a violation of the State Act or Act until the Director takes final action on the permit application, provided that the failure to have a permit is through no fault of or delay by the source. This protection will cease to apply if, subsequent to the completeness determination made pursuant to Section 002, the applicant fails to submit any additional information necessary to process the application within the deadline specified in writing by the Department.
001.07 The submittal of a complete Class I or II operating permit application does not affect or change the requirement that a source have a construction permit.
002 Application.
002.01 Duty to Apply and Timely Application.
002.01A The owner or operator of a source that becomes subject to the Class I operating permit program at any time following the effective date of these regulations will file an application pursuant to 40 CFR § 70.5(a)(1).
002.01B An owner or operator subject to the regulation to obtain a Class II operating permit for a source will file an operating permit application for that source within 12 months of the date on which the source first becomes operational or otherwise subject to the requirement to obtain an operating permit.
002.01C For purposes of permit renewal, a timely application is one that is submitted at least six months, but no longer than 18 months prior to the date of permit expiration.
002.02 Complete Application for a Class I or a Class II Operating Permit. An application will be deemed complete pursuant to 40 CFR § 70.5(a)(2).
002.03 Confidential Information for Class I and Class II Permits. A source which has submitted information to the Department under a claim of confidentiality pursuant to Title 115 - Rules of Practice and Procedure, may be required by the Department to submit a copy of such information to the EPA. Applicant name, source location, compliance plan, schedule of compliance, monitoring reports, certification, emission data, and issued permits will be available to the public.
002.04 Duty to Supplement or Correct an Application for a Class I or a Class II Operating Permit. Applicant will comply with requirements in 40 CFR § 70.5(b).
002.05 Standard Application Form and Required Information for a Class I or Class II Operating Permit Application.
002.05A The owner or operator of a source required to obtain a Class I operating permit will submit an application on standard forms available from the Department.
002.05B The applicant will include, at a minimum, information pursuant to 40 CFR § 70.5(c)(1) through 70.5(c)(10), and the following:
002.05B1 The Source Classification Code as published by EPA's Office of Air Quality Planning and Standards including any associated with an alternate scenario identified by the source.
002.05B2 All emissions, both actual and potential, of regulated air pollutants.
002.05B3 Emissions rates in tpy and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method or alternative method as approved by the Director.
002.05B4 Limitations on source operation affecting emissions, including physical or operational limitations on potential to emit for all Class II sources.
002.05B5 The applicant will indicate any emission points at the facility for which the applicant intends to request coverage under a general permit.
002.05B6 A Class I source may request a permit shield pursuant to 40 CFR § 70.6(f)(2).
002.05B7 An explanation of any proposed exemption from an applicable requirement.
002.05C The Director may develop a list of insignificant activities pursuant to 40 CFR § 70.5(c). The list will be made available by the Department and updated as necessary. The Director may consider the following criteria in developing the list of insignificant activities:
002.05C1 Support activities may be listed as insignificant if they are not themselves marketed or traded, and do not use equipment or materials of a size or nature that are themselves subject to an applicable requirement under the Act or this Title;
002.05C2 Activities or emission units which can be determined to result in air contaminant emissions less than those specified in 001.01 of this Chapter based on size, capacity or an expectation of incidental usage may be determined to be insignificant. The Director may consider standard industrial practices and the results of rulemaking efforts under the Act in establishing such thresholds;
002.05C3 Laboratory and research and development activities may be listed as insignificant activities only if conducted in the non-process areas of the facility. If the principal activity of a site is laboratory services or research and development for other locations or under contract, such activities are significant for purposes of permitting;
002.05C4 The Compilation of Air Pollutant Emission Factors (AP-42 emission factors) or comparable data may be considered when determining insignificant use or storage thresholds. For hazardous air pollutants, the Director may consider any de minimis emission level established by the EPA under Part 112(g) of the Act or a storage or use level established in any federal or state standard.
002.05C5 Insignificant activities listed for exclusion in the permit application pursuant to 40 CFR § 70.5(c) will also apply to Class II sources.
002.05D The list of insignificant activities will describe classes of activities that may be excluded from the permit application or only listed with a limited amount of support data. The applicant will provide information which the list will specify necessary to determine if a specific activity, piece of equipment or group of items is subject to an applicable requirement under the Act or this Title. The Department may request additional information as determined necessary. Inclusion of an activity, emission unit or specific use or storage of a regulated pollutant on the list does not absolve an applicant from any applicable requirements under the Act or this Title to which such an activity or emission unit is otherwise subject.
002.05E Emissions from insignificant activities are included in the determination of whether a source will obtain a Class I or Class II operating permit.
statutory and regulatory provisions. This statement shall accompany the draft permit sent to EPA, and be made available to any person who requests it.
002.09 For Class I and Class II sources, the submittal of a complete application will not affect the requirement that any source have a construction permit.
003 Permit Content. The standard permit content for Class I and Class II operating permits is as follows:
003.01 Each Class I and Class II operating permit will specify emission limitations and standards in accordance with the requirements found at 40 CFR § 70.6(a). The source will propose permit terms and conditions to satisfy these requirements in its application.
003.02 Permit duration. Class I and Class II operating permits will be issued for a term pursuant to the standards found at 40 CFR § 70.6(a)(2).
003.02A Notwithstanding 003.02, the Director may issue a Class II operating permit to true minor sources for the life of the source and synthetic minor sources for a fixed term not to exceed 10 years, except synthetic minor sources belonging to the categories listed below may be issued a permit for the life of the source. The Director may issue a Class II permit for a shorter duration.
003.02A1 Municipal power plants.
003.02A2 General operating permits for incinerators, should that be the only operating permit required for the source.
003.02A3 Mobile power generation.
003.02B The term of an operating permit cannot be extended by modification. 003.02C The conditions of an expiring or expired operating permit continue until the effective date of a new operating permit in accordance with Sections 007 and 008.
003.03 Each Class I and Class II operating permit will contain monitoring and related recordkeeping and reporting requirements in accordance with the standards contained in 40 CFR § 70.6(a)(3). The permit may allow records to be maintained in computerized form.
003.03A Notwithstanding 003.03, for Class II operating permits, deviation reporting will be submitted on an annual basis unless more frequent reporting of deviations is identified in the permit.
003.03B In addition to the reporting requirements of 40 CFR § 70.6(a)(3)(iii), each Class I and Class II operating permit will at a minimum include the following:
003.03B1 Reporting of any deviation that poses an imminent and substantial danger to public health, safety, or the environment as soon as is practicable;
003.03B2 Reporting of any other deviations that are identified in the permit as needing more frequent reporting than the source’s semi-annual report on a schedule specified in the permit; and
003.03B3 All reports of deviations will identify the probable cause of the deviations and any corrective actions or preventative measures taken.
003.03B4 Every report submitted under 003.03A and 003.03B is to be certified by a responsible official.
003.04 Acid Rain Permit Condition. Each Class I permit issued to an affected source will include a permit condition pursuant to 40 CFR § 70.6(a)(4).
003.05 Severability. Each Class I and Class II permit will contain a severability clause pursuant to 40 CFR § 70.6(a)(5).
003.06 General conditions. Each Class I and Class II operating permit will include the following provisions:
003.06A The source is to comply with all conditions of the operating permit. Any permit noncompliance constitutes a violation of the State Act and the Act, and is grounds for enforcement action; permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application.
003.06B It will not be a defense for a source in an enforcement action to claim that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.
003.06C The permit may be modified; revoked, reopened, and reissued; or terminated for cause in accordance with this Title and Title 115. The filing of a request by the source for a permit modification, revocation and reissuance, or termination, or of a notification of planned changes or anticipated noncompliance does not supersede any permit condition.
003.06D The permit does not convey any property rights of any sort, or any exclusive privilege.
003.06E The source will furnish to the Department, within the time specified by the Department, any information requested by the Department 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 source will also furnish to the Department copies of records required to be kept in accordance with the permit. Requirements for requesting confidentiality and for the processing of such request are found in Title 115.
003.07 Each Class I permit will contain a provision for payment of emission fees consistent with Section 009 of this Chapter.
003.08 Alternative operating scenarios. Each operating permit will contain terms and conditions for reasonably anticipated operating scenarios identified by the source in its application as approved by the Director. Such terms and conditions will:
003.08A 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 the source is operating;
003.08B Ensure that the terms and conditions of each alternative scenario meet all applicable requirements and the requirements of the permit; and
003.08C Include a permit shield, if requested, as described in 003.12 below for all terms and conditions under each operating scenario.
003.09 Reopening for cause. Each operating permit will include provisions specifying the conditions under which the permit will be reopened, as well as revoked and reissued, or terminated, in accordance with Chapter 9.
003.10 Risk Management Plans. For any source required to develop and register a risk management plan pursuant to Section 112(r) of the Act and regulations adopted by the Council, the permit will specify that the source will comply with the regulation to register such a plan. The content of the risk management plan will not be incorporated as a permit term. The operating permit will include:003.10A Verification of plan preparation and submittal to the Department, the State Emergency Response Commission, and any Local Emergency Planning Committee; and
003.10B A requirement for annual certification by a responsible official that the risk management plan is being properly implemented per 40 CFR § 70.5(c)(9).
003.11 All Class I and Class II operating permits will contain elements with respect to compliance consistent with the requirements found at 40 CFR § 70.6(c), including any additional requirements specified in this Title, the applicable Implementation Plan, or any permit issued under this Title. Administrator, as used in 40 CFR § 70.6(c), means EPA Administrator.
003.12 Permit Shield for Class I Operating Permits. A permit shield will be included in the operating permit pursuant to 40 CFR § 70.6(f). Administrator, as used in 40 CFR § 70.6(f), means EPA Administrator.
003.13 Each Class I and Class II operating permit may include additional requirements the Director deems appropriate, including but not limited to, the following:
003.13A Emissions limitations and standards which are at least as stringent as any applicable requirement or other requirements contained in the State Implementation Plan.
003.13B Monitoring and related recordkeeping and reporting.
003.13C Compliance certification, testing, monitoring, reporting, and recordkeeping.
003.14 All terms and conditions in a Class I or Class II operating permit, including any provisions designed to limit a source's potential to emit, are enforceable by the Administrator of EPA and citizens under the Act except those terms and conditions which have been specifically designated in a Class I permit as not required and not federally enforceable under the Act or any of its applicable requirements.
003.15 A Class I or Class II operating permit may contain emissions trading pursuant to the requirements found at 40 CFR § 70.6(a)(10).
003.16 The Director will establish terms and conditions in the permit, if requested by the applicant in the application, allowing for the trading of emissions increases and decreases in the permitted facility solely for the purpose of complying with a federally-enforceable emissions cap that is established in the permit independent of otherwise applicable requirements. The application will include proposed replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. Emissions from emissions units which are not quantifiable and for which there are no replicable procedures will not be included in any trades. The permit will also require compliance with all applicable requirements.
004.01 Except as provided in 004.04 of this Chapter, the Director may issue a single permit authorizing emissions from similar operations by the same source owner or operator at multiple temporary locations. The operation must be temporary and involve at least one change of location during the term of the permit subject to Department approval. No affected source will be permitted as a temporary source.
004.02 An operating permit for a temporary source includes the requirements specified in Section 003 of this Chapter and the following:
004.02A Conditions that will assure compliance with all applicable requirements and ambient air quality standards established in Chapter 2 at all authorized locations; and
004.02B Conditions that the owner or operator notify the Director at least 20 days in advance of each change in location by providing the following information:
004.02B1 A specific description of the source, including SIC code;
004.02B2 A legal description of the proposed new location;
004.02B3 The anticipated dates of operation at the new proposed location;
004.02B4 A description of site location, adjacent surroundings, including proximity to occupied buildings;
004.02B5 A contact person for the source, including telephone number and e-mail address;
004.02B6 .The signature of a responsible official for the source certifying the information contained in the notification; and
004.02B7 A source facility identification number as assigned by the Department.
004.03 The Department may disapprove a new proposed location for a temporary source if the Director determines that operation in the new location would cause or contribute to a violation of standards or otherwise adversely affect human health or the environment.
004.04 In the case of temporary activities initiated to maintain or restore electrical power supply or prevent imminent power loss, the provisions of either 004.04A or 004.04B apply, as appropriate. Units complying with this section are exempt from all other provisions of this chapter.
004.04A Temporary power generation units maintained within the state will be covered by an operating permit which identifies them as temporary units, specifies their rating, fuel supply, non-working location, and routine operating practices, and establishes notification procedures for such activities.
004.04B The owners or operators of temporary power generation units which are maintained outside the state will notify the Department prior to bringing them into the state according to the following schedule:
004.04B1 In the case of a power loss or threat of imminent power loss, within 24 hours of dispatch;
004.04B2 In the case of maintenance activities, 20 days prior to dispatch, unless another notification schedule is established with the Department.
005 Emergency; Defense.
005.01 For the purposes of a Class I or Class II operating permit, the language of 40 CFR Part 70.6(g) is adopted and incorporated by reference.
005.02 A report submitted according to the requirements of 40 CFR § 70.6(g)(3)(iv) may be submitted without certification by a responsible official as long as a final report meeting the reporting requirements of 40 CFR § 70.6(g) is made with the appropriate responsible official certification within ten days of the preliminary report.
006 Class I Operating Permit EPA Review, Affected State Review; Class II Operating Permit.
006.01 Unless the Administrator waives or modifies this requirement, the Department shall provide to the Administrator of EPA a copy of each Class I operating permit application or modification, each proposed Class I permit, and each final Class I permit. The Department may require the permit applicant to provide a copy of the permit application, including the compliance plan, directly to the Administrator of EPA.
006.02 The Director shall give notice of each draft Class I operating permit to any affected state on or before the time that the Department provides notice to the public. The Department shall notify the Administrator of EPA, TAS, and any affected State in writing of the reasons for any refusal by the Department to accept all recommendations for the proposed permit that the affected State submitted.
006.03 The Director shall not issue a Class I operating permit if the Administrator of EPA objects to its issuance in writing within 45 days of receipt of the proposed permit and all necessary supporting information.
006.04 If the Administrator of EPA objects to a Class I operating permit as a result of a petition for review filed pursuant to Section 505(b)(2) of the Act, the Department shall not issue the permit until EPA's objection has been resolved, except that a petition for review shall not stay the effectiveness of a permit or its requirements if the permit was issued after the end of the 45 day EPA review period and prior to an EPA objection.
006.05 If the Director has issued a Class I operating permit to which EPA objects as a result of a petition for review filed pursuant to Section 505(b)(2) of the Act, the permit may be reopened in accordance with the procedures in Chapter 9.
006.06 Prohibition on Default Issuance.
006.06A Notwithstanding the time period specified in Section 003 of this Chapter, no Class I operating permit, including a permit renewal or revision, will be issued until:
006.06A1 Affected States and the Administrator have had an opportunity to review the proposed permit, and
006.06A2 The Director has acted on the application.
006.06B No Class II operating permit, including a permit renewal or revision, will be issued until the Director has acted on the application.
007 Permit Renewal, Termination. Class I or Class II operating permits, the requirements found at 40 CFR § 70.7(c)(1)(i) and (ii) apply.008 Permit Expiration, Denial.
008.01 Conditions of an expired operating permit cannot be modified except with the issuance of a new permit or permit renewal.
008.02 The conditions of an expired operating permit continue until the effective date of a new operating permit or until the application for a permit is denied provided:008.02A The source has submitted a timely application which has been deemed complete by the Department, and
008.02B The Director, through no fault of the source, does not issue a new operating permit with an effective date before the expiration date of the previous operating permit.
008.03A The source is not in substantial compliance with the terms and conditions of the expired permit or with a stipulation, agreement, or compliance schedule designed to bring the source into compliance with the permit;
008.03B The Department, as a result of an action or failure to act on the part of the source, has been unable to take final action on the application on or before the expiration date of the permit; or
008.03C The source has submitted an application with major deficiencies or has failed to properly supplement the application in a timely manner after being informed of the deficiencies.
009 Emissions Fees.
009.01 The provisions of this section apply to any owner or operator of a major source subject to pay an annual emission fee for each ton of a regulated pollutant for fee purposes emitted to the air by the facility in accordance with Neb. Rev. Stat. § 81-1505.04. For purposes of this Chapter, a pollutant which may be regulated under more than one provision of this Title, need only be counted once.009.02 Any temporary source issued a Class I permit under this Chapter will pay an annual emission fee for emissions during the time period the source was located and operated in the State. 009.03 Any owner or operator who fails to submit an annual emissions inventory report will pay an annual emission fee based on the source's potential to emit.
009.04 An owner or operator will submit the fees to the Department by check, or other authorized transfer, and identify the fees as an air emissions fee payment. The fees will be due and payable on July 1 of each year. All fees paid in accordance with this Chapter will be non-refundable.
009.05 Failure to submit the fees required by this Chapter, in addition to other relief allowed by law, will be cause for:
009.05A Revocation of the source's Class I operating permit; and
009.05B Assessment of a late payment fee of 20 percent of the payment due, which late payment fee will be increased by an additional 10 percent of the original payment due for each additional 30 day period that the payment is late. Late payment fees are due immediately upon receipt of notice of assessed fees.
009.06 If the Department determines that the annual emission inventory report form is incomplete or inaccurate for the purposes of calculation of annual emission fees, the Department may require the owner or operator of a source to submit additional data or other information, as well as an explanation of the source's calculation. If such additional data or information changes the annual emission inventory report and results in the assessment of additional fees, such additional fees will be due within 30 days of notice of the assessment.
010 Compliance Assurance Monitoring. The provisions of 40 CFR Part 64, as in effect on July 1, 2020, for purposes of implementing the compliance assurance monitoring program, is hereby adopted and incorporated by reference. Administrator, as used in 40 CFR § 64.2(b)(1)(i) and 40 CFR § 64.2(b)(1)(iv), means Administrator of EPA.Enabling Legislation: Neb. Rev. Stat. §81-1504(1)(2); 81-1505(12)(16)