On January 28, 2025, the Florida Department of Environmental Protection (DEP) finalized
revisions to
Rule 62-213.410 of the Florida Administrative Code (F.A.C.) allowing facilities to make Clean Air Act (CAA) Section 502(b)(10) allowable changes and “off-permit changes” as described in the CAA without requiring a full Title V Air Operation Permit Revision. DEP’s goal in revising these rules was to reduce the unnecessary processing time of Title V revisions on agency staff and ultimately allow them to keep staffing costs in check, which in turn could balance budgets and avoid otherwise-necessary Title V fee increases. However, it also was intended to give the regulated community more authorization pathways, unlike previous requirements which forced everything down the Title V revision pathway if it did not quality as an administrative amendment.
Section 502(b)(10) Changes
Changes under Title V, Section 502(b)(10) of the CAA are designed to provide operational flexibility by allowing facilities to make physical or operational changes without modifying the Title V permit. For a change to qualify as operational flexibility, it must not violate any applicable requirements nor constitute a modification under Title I of the CAA. Examples could include:
- Replacing an emission unit with an identical unit where operation of the new unit does not violate any applicable requirements, including those cited in the existing permit.
- Adding an emission unit to a process with existing permited units that are operating under an emission cap, and the addition of the new emission unit does not result in an emission increase.
- Increasing operating hours or increasing or changing fuels providing that associated emissions do not increase beyond any existing permitted emission limit.
DEP has published the
Title V Permit 502(b)(10) Change Notification Instructions and
Section 502(b)(10) Change Notification Worksheet to guide facilities through the notifications required, timing requirements, and information required to request these types of changes. Commonly, facilities add or replace emergency engines at a facility. Although the addition of an engine often does not require air construction permitting, a full Title V revision application would have been required within 180 days prior to this rule change. Using this new permitting pathway, a 502(b)(10) notification can be submitted. If the 502(b)(10) change is to incorporate one or more engines, DEP recommends that the permittee complete and include with its submission the
Engine Information Worksheet.
Off-Permit Changes
As defined in 40 CFR 70.4, Title V permittees may make off-permit changes at a source without a Title V permit revision if the following four (4) conditions are met:
- The changes are not a modification under Title I of the CAA (potential to emit from all existing, new, and modified/replacement units do not trigger Prevention of Significant Deterioration (PSD) review or 40 CFR Subpart 63 requirements and any modifications do not trigger 40 CFR Part 60 or 61 requirements.)
- Changes do not cause emissions allowed under the Title V permit to be exceeded
- The permittee notifies the appropriate DEP permitting and compliance authority contacts with written notification 7 days prior to making the change.
- The permittee attaches a copy of the notification to the Title V permit. At the next renewal or significant modification of the permit, DEP will require that all applicable application forms be submitted for each emission source associated with the change.
DEP suggests that facilities contact the Division of Air Resource Management (DARM) to discuss a prospective Section 502(b)(10) or off-permit changes prior to submitting a change notification. If DARM determines that the change does not qualify as a 502(b)(10) or off-permit change, and the change has already been made, the facility may be subject to enforcement for not obtaining an air construction permit and/or Title V permit revision. In accordance with Rule 62-213.410, F.A.C., the permittee may submit an applicability determination requesting that DARM verify that the proposed change qualifies as a 502(b)(10) or off-permit change. However, the Title V permit shield does not extend to the changes, and as such the permittee must certify compliance with the existing permit terms on its annual compliance certification.
Conclusion
DEP expects that it will take some time for everyone to get familiar with when these new permitting options are appropriate, so it is suggested to consult with DEP in advance. These Title V modification mechanisms are not new nationally; however, they are new to Florida’s permitting approach. Because of Trinity Consultants’ “local-everywhere” business model, we already have extensive experience with Section 502(b)(10) and off-permit changes through the federal Title V program, and the approved Title V programs of other states. Trinity works closely with the Florida DEP in Tallahassee and the various district and local offices daily. As well, with our specific experience and relationships in Florida, we can help provide insights, federal-rule precedence, and unique guidance to help the regulated community utilize these new authorization pathways, when appropriate, while minimizing risks to scope and schedule.
Note that these regulatory changes are specific to the Title V program. Facilities must still be cognizant of the requirements of Rule 62-210, F.A.C. and state air construction permitting for both current project triggers and historical air construction permit requirements. Trinity strongly suggests identifying the right authorization pathway for both air construction permitting and Title V permitting that aligns with the project scope, and coordinating with DEP, accordingly.
Trinity Consultants has assisted a number of industries and clients with permit applicability assessments, air permit applications, revisions, and administrative amendments. Strategic input and regulatory understanding are necessary to appropriately permit clients’ operations and understand the impacts and implications of utilizing various permitting actions. We actively track new regulatory developments and assist clients with regulatory interpretations and agency negotiations. For more information and/or for assistance with implementing these new permitting allowances, please contact Trinity at 800.229.6655 or email Michael Ballenger or Katherine Katsourides.
