(1) Except as otherwise provided in an applicable new source performance standard, a source is a new source if it meets the definition of new source in ARM 17.30.1304, and:
(a) it is constructed at a site at which no other source is located; or
(b) it totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or
(c) its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the department shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.
(2) A source meeting the requirements of (1)(a), (b), or (c) is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger. (See ARM 17.30.1304.)
(3) Construction on a site at which an existing source is located results in a modification subject to ARM 17.30.1361 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of (1)(b) or (c) but otherwise alters, replaces, or adds to existing process or production equipment.
(4) Construction of a new source as defined under ARM 17.30.1304 has commenced if the owner or operator has:
(a) begun, or caused to begin as part of a continuous on-site construction program:
(i) any placement, assembly, or installation of facilities or equipment; or
(ii) significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or
(b) entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this rule.
(5) Except as provided in (6), any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under ARM 17.30.1207 for the soonest ending of the following periods:
(a) ten years from the date that construction is completed;
(b) ten years from the date the source begins to discharge process or other non-construction related wastewater; or
(c) the period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954.
(6) The protection from more stringent standards of performance afforded by (5) does not apply to:
(a) additional or more stringent permit conditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under ARM 17.30.1206; or
(b) additional permit conditions in accordance with 40 CFR 125.3 controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.
(7) When an MPDES permit issued to a source with a "protection period" under (5) of this rule expires on or after the expiration of the protection period, that permit must require the owner or operator of the source to comply with the requirements of section 301 of the federal Clean Water Act and any other then-applicable requirements of the Act immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.
(8) The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger, shall install and have in operating condition, and shall "start-up" all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days) , the owner or operator shall meet all permit conditions. The requirements of this rule do not apply if the owner or operator is issued a permit containing a compliance schedule under ARM 17.30.1350(1)(b) .
(9) After the effective date of new source performance standards, it is unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.