What is a permit shield?
A permit shield, as described in 40 CFR 70.6(f) and LAC 33:III.507.I, provides an “enforcement shield” which protects the facility from enforcement action for violations of applicable federal requirements. This is intended to protect the facility from liability for violations if the permit does not accurately reflect an applicable federal requirement.
A permit shield is strictly limited to:
1) Applicability (i.e., non-applicability) determinations of standards and requirements under:
· 40 CFR 60 (NSPS),
· 40 CFR 61 & 63 (NESHAP/MACT),
· Prevention of Significant Deterioration (PSD), and
· Nonattainment New Source Review (NNSR).
2) Interpretations regarding frequency of and procedures for monitoring, recordkeeping, and reporting provisions of federally applicable requirements.
3) Interpretations regarding appropriate means of compliance when more that one federal requirement applies to the same emissions unit at a source.
Other important notes:
· A permit shield does not affect enforcement or compliance determinations or liability for any activity or violation of applicable requirements prior to or at the time of the permit issuance.
· A permit shield cannot be granted without prior public notice and cannot extend to any permit term or condition which has not undergone public notice. A statement indicating that a permit shield is incorporated in the proposed permit must appear in the public notice. A permit that does not expressly state that a permit shield exists shall be presumed not to provide such a shield.
· LDEQ may revoke or revise the permit shield at any time under LAC 33:III.529.
· Permit shield provisions do not extend to minor permit modifications (because of the public notice requirement).
What should be included in a request for a permit shield?
A request for a permit shield must be very specific. The application should outline all applicable federal requirements and set out the proposed terms and conditions to be followed in order to demonstrate compliance with each of the identified standards.
For example, if a source seeks a determination that a potentially applicable regulation does not apply, the application should explain why the source is not subject to that regulation (e.g., by demonstrating how their process does not conform to a specific definition).
When should a permit shield be granted?
Notably, LDEQ has “full discretion in determining whether to grant or deny any permit shield request or any portion thereof” [LAC 33:III.507.I.2.a]. The Permit Procedures Manual suggests that “only very specific determinations by the LDEQ will qualify for a shield.”
Although the LDEQ’s decision to grant or deny a permit shield is a situation-specific case by case determination, a request for a permit shield will be given additional consideration under the following circumstances:
1. Leak Detection and Repair (LDAR) programs have been consolidated pursuant to the Louisiana Consolidated Fugitive Emission Program.
2. applicability and/or compliance determinations are based on memoranda issued by EPA such as those on available on EPA’s Applicability Determination Index (ADI) website. Note here that some ADI determinations are relatively straightforward and do not necessitate a permit shield.
3. EPA has provided conflicting guidance on a topic (e.g., ADI 0000078 & 9700105 disagree as to whether or not a gas stream discharged directly from a reactor process to a fuel gas system constitutes a “vent stream” under 40 CFR 60 Subpart RRR).
4. multiple federal standards apply to the same piece of equipment, and the regulations do not contain overlap provisions (e.g., as in 40 CFR 63.110(b)-(f)), particularly if testing and/or monitoring provisions differ.
LDEQ does not intend to establish a permit shield for straightforward applicability determinations similar to those below. Such information will appear in Section XI of a Title V permit – Explanation for Exemption Status of Non-applicability of a Source.
EQT 001 is not subject to the requirements of 40 CFR 60 Subpart Dc because the boiler was constructed before June 9, 1989, and has a design heat input capacity greater than 100 MM Btu/hr [40 CFR 60.40c].
EQT002 is not subject to the requirements of 40 CFR 60 Subpart Kb because the capacity of the tank is less than 75 cubic meters [40 CFR 60.110b(a)].