49-426.06. State program for control of hazardous air pollutants

A. After publication of the report prescribed by section 49-426.08, subsection B, the director shall by rule establish a state program for the control of hazardous air pollutants that meets the requirements of this section. The program established pursuant to this section shall apply to the following sources:

1. Sources that emit or have the potential to emit with controls 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.

2. Sources that are within a category designated pursuant to section 49-426.05 and that emit or have the potential to emit with controls one ton per year or more of any hazardous air pollutant or two and one-half tons per year of any combination of hazardous air pollutants.

B. After rules adopted pursuant to subsection A of this section become effective pursuant to section 41-1032, a person shall not commence the construction or modification of a source that is subject to this section without first obtaining a permit or permit revision that complies with section 49-426 and subsection C or D of this section. For purposes of determining whether a change constitutes a modification, the director shall by rule establish appropriate de minimis amounts for hazardous air pollutants that are not federally listed hazardous air pollutants. In establishing de minimis amounts, the director shall consider any relevant guidelines or criteria promulgated by the administrator. A physical change to a source or change in the method of operation of a source is not a modification subject to this section if the change satisfies any of the following conditions:

1. The change complies with section 112(g)(1) of the clean air act.

2. The change, together with any other changes implemented or planned by the source, qualifies the source for an alternative emission limitation pursuant to section 112(i)(5) of the clean air act.

3. The change is required under a standard imposed pursuant to section 112(d) or 112(f) of the clean air act and the change is implemented after the administrator promulgates the standard.

C. A permit or permit revision issued to a new or modified source that is subject to the state hazardous air pollutant program under subsection A, paragraph 1 of this section shall impose the maximum achievable control technology for the new source or modification, unless the applicant demonstrates pursuant to subsection D of this section that the imposition of maximum achievable control technology is not necessary to avoid adverse effects to human health or adverse environmental effects. A permit or permit revision issued to a new or modified source that is subject to the state hazardous air pollutant program under subsection A, paragraph 2 of this section shall impose hazardous air pollutant reasonably available control technology for the new source or modification, unless the applicant demonstrates pursuant to subsection D of this section that the imposition of hazardous air pollutant reasonably available control technology is not necessary to avoid adverse effects to human health or adverse environmental effects. When a reliable method of measuring emissions of a hazardous air pollutant subject to this section is not available, the director shall not require compliance with a numeric emission limit for the pollutant but shall instead require compliance with a design, equipment, work practice or operational standard, or a combination thereof. Standards imposed pursuant to this subsection shall apply only to hazardous air pollutants emitted in amounts exceeding the de minimis amounts established by the administrator or by the director pursuant to subsection B of this section. The director shall not impose a standard under this subsection that would require the application of measures that are incompatible with measures required under a standard imposed pursuant to section 49-426.03, subsection B.

D. If the owner or operator of a new source or modification subject to this section establishes that the imposition of maximum achievable control technology or hazardous air pollutant reasonably available control technology is not necessary to avoid adverse effects to human health or adverse environmental effects by conducting a scientifically sound risk management analysis and submitting the results to the director with the permit application for the new source or modification, the director shall exempt the source from the imposition of such technology. The risk management analysis may take into account the following factors:

1. The estimated actual exposure of persons living in the airshed of the source.

2. Available epidemiological or other health studies.

3. Risks presented by background concentrations of hazardous air pollutants.

4. Uncertainties in risk assessment methodology or other health assessment techniques.

5. Health or environmental consequences from efforts to reduce the risk.

6. The technological and commercial availability of control methods beyond those otherwise required for the source and the cost of such methods.

E. Where maximum achievable control technology or hazardous air pollutant reasonably available control technology has been established in a general permit for a defined class of sources pursuant to subsection C of this section and section 49-426, subsection H, the owner or operator of a source within that class may obtain a variance from the standard by complying with subsection D of this section at the time the source applies to be permitted under the general permit. If the owner or operator makes the demonstration required by subsection D of this section and otherwise qualifies for the general permit, the director shall, in accordance with the procedures established pursuant to section 49-426, approve the application and issue a permit granting a variance from the specific provisions of the general permit relating to the standard. Except as otherwise modified by the variance, the general permit shall govern the source.

F. If the clean air act has established provisions, including specific schedules, for the regulation of source categories pursuant to section 112(e)(5) and 112(n) of the clean air act, those provisions and schedules shall apply to the regulation of those source categories under subsection B of this section.

G. For any category or subcategory of facilities licensed by the nuclear regulatory commission, the director shall not adopt or enforce any standard or limitation respecting emissions of radionuclides which is more stringent than the standard or limitation adopted by the administrator pursuant to section 112 of the clean air act.

H. For purposes of subsection A of this section, in determining potential to emit, the director shall consider controls that are enforceable under any federal law or regulation, state or local law or rule or that are inherent in the design of the source.

I. In determining whether emissions from a source or modification exceed the thresholds prescribed by subsection A or B of this section, the director shall exclude particulate matter emissions that consist of natural crustal material and are produced either by natural forces, such as wind or erosion, or by anthropogenic activities, such as agricultural operations, excavation, blasting, drilling, handling, storage, earth moving, crushing, grinding or traffic over paved or unpaved roads, or other similar activities. Nothing in this subsection shall preclude the regulation of emissions of crustal materials as particulate matter pursuant to other sections of this chapter.