Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, CommiSsioner 

Carlos Rubinstein, Commissioner 

Mark R Vickery, P.G., Executive Director 

RECEIVED 

II t1AR 29 PH I: 52 

t:H£RHAL AFFAIRS OIVISIIN 

TEXAS COMMISSION ON ENVIRONMENTAL \,lUALITY 

Protecting Texas by Reducing and Preventing Pollution 

March 25, 2011 

Docket No. 2009-1898-RlJL 

91 7108 2133 3935 2304 81b5 

Alfredo Armendariz, Ph.D. 

Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Dr. Armendariz: 

EJFtl\.~~;) ....••. fllttl ................ . 

EJDFtl\. fi.%1 ... EJWQ. ...•...•.••..... 

6MD .............. 6SF .......•.......... 

fiOEJ ... ·-··· .... EJRC ..........•..•.... 

6P D .O.r •. ~ ~;f.~ .1 ••• fiXA .. f'~-;-.-:t ...... . 

On September 15, 2010, the Texas Commission on Environmental Quality (Commission) 

adopted revisions to the State Implementation Plan (SIP) relating to the rules for the Qualified 

Facilities program and the definition of Best Available Control Technology. 

The Commission adopted amendments to§§ 116.10, 116.111, 116.116, and 116.117 and a new§ 

116.17 of 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or 

Modification and corresponding revisions to the SIP. The adopted amendments address 

deficiencies as identified by EPA in the rules related to the qualified facility program as 

published in the April14, 2010 notice of disapproval of the program as a SIP amendment (75 

Federal Register 19468). 

By letter dated October 5, 2010, the TCEQ submitted these proposed revisions to the SIP, a 

public hearing certification, a complete record of the public hearings, and the accompanying 

order and supplement for the SIP revision. 

Enclosed, on a CD, are the submittals for the rulemakings that adopted or amended rules 

regarding the qualified facilities program, and the definition of best available control technology 

in§ 116.10, by the Commission on the following dates: February 14, 1996; June 18, 1998; 

August 9, 2ooo; and August 21, 2002. Although EPA's records contain these previous 

submittals, EPA has requested and the Commission is supplying, as part of this transmittal, 

these previously submitted rulemakings to ensure that EPA reviews the new submittal together 

with these previous submittals. 

I also bring to your attention that the commission repealed §116.118 in a separate rulemaking on 

February 23, 2011, whiclt became effective March 17, 2011. This repeal will not be submitted as 

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us 
a SIP revision, as the repealed rule had previously been disapproved by EPA (75 Federal 

Register 19468) and is therefore no longer before EPA as a revision to the SIP. 

I look forward to your expeditious approval of these SIP revisions. 

Sincerely, 

BWSfjbh 

Enclosures 
STATE OF TEXAS 

OFFICE OF THE GovERNOR 

GEORGE W. BUSH 

GOVERNOR 

Ms. Jane Saginaw 

Regional Administrator 

March 13, 1996 

U.S. Environmental Protection Agency 

Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Ms. Saginaw: 

Enclosed are revisions to 30 TAC Chapter 116, which were adopted by the Texas Natural 

Resource Conservation Commission (Commission) on February 14, 1996. Chapter 116, 

Subchapter A, concerning Definitions, and Subchapter B, concerning Permit Application, 

were amended to modifY air permit application procedures and evaluation criteria to 

provide more operational flexibility to facilities. The amendments were adopted in 

response to changes required by Senate Bill 1126, 74th Legislature. The revisions are 

being submitted to you as a proposed revision to the State Implementation Plan (SIP). 

Also enclosed is a public hearing certification as required by 40 CFR §51.1 02 (f), a 

complete record ofthe public hearing, and the adoption Order. 

I look forward to your expeditious approval of this revision to the Texas SIP. 

Enclosures 

cc: Mr. Barry R. McBee, Chairman, Texas Natural Resource Conservation Commission 

Mr. Dan Pearson, Executive Director, Texas Natural Resource Conservation 

Commission 

Posr Oma Box 12428 AUSTIN, TEXAS 78711 (512) 463-2 
Barry R. McBee, Chairman 

R. B. "Ralph" Marquez, Commissioner 

John M. Baker, Commissioner 

Dan Pearson, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Redudng and Preventing Pollution 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

This is to certify that the attached are true and correct copies of revisions to 30 T AC Chapter 116 and 

the State Implementation Plan adopted on February 14, 1996 pursuant to 40 Code of Federal Regulations 

(CFR), §51.104. Prior to the adoption of the revision, a public hearing was held pursuant to 40 CFR, 

§51.102(a), and notice of the hearing was given which conformed to the requirements of 40 CFR, 

§51.102( d). I am the custodian of the records of the Commission. 

To certify which, witness my hand and the seal of the Texas Natural Resource Conservation 

Commi3sion, this the 14th day of February, 1996. 

~~d. o/4L~~-""'------ Glm:iaVasquez V-\S 

Chief Clerk, 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 Austin, Texas 78711-3087 512/239-1000 
Texas Natural Resource 

Conservation Commission 

Public Hearing 

November 6, 1995 

30 TAC Chapter 116-

SB 1126 Changes 
INTRODUCTION 

A public hearing was held in Austin on November 6, 1995 to consider the following revisions: §116.10, 

concerning General Definitions and §116.116, concerning Changes to Faclities; the repeal of §116.117, 

concerning Distance Limitations; and new §116.112, concerning Distance Limitations, §116.117, 

concerning Documentation and Notification of Changes to Qualified Facilities, and §116.118, concerning 

Pre-change Qualification. The TNRCC permit amendment and alteration criteria were modified pursuant 

to Senate Bill 1126, 74th Legislature. 

Written comments were accepted through December 6, 1995. All testimony and comments have been 

reviewed and seriously considered. This volume contains a complete record of the public hearing and 

is divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations 

Additional copies of this hearing record are maintained in the TNRCC central office at 12100 North 

IH-35, Austin, Texas 78753. For further information, contact Thomas Ortiz at (512) 239-1054. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was conducted by the following procedures: 

1. Publication of the notice of public hearing in the following newspapers on the dates listed: 

Austin American-Statesman; October 7, 1995 

Fort Worth Star-Telegram; October 7, 1995 

Houston Chronicle; October 6, 1995 

2. Publication of the public hearing notice and proposed rules in the Texas Register on October 

10, 1995. 

3. Correspondence forwarding the notice of public hearing to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

Dallas Department of Health and Human Services 

El Paso City-County Health District 

Fort Worth Public Health Department 

Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Pollution Control Department 

City of El Paso 
North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Air Quality Bureau 

Oklahoma State Department of Health 

U. S. Environmental Protection Agency 
EXAMPLE OF 

NEWSPAPER CLASSIFIED AD 

Fort Worth Star-Telegram 

October 7, 1995 

:. NOTICE OF PUB IC HEARING rttl::f. THE TE TURAL. 

f•~ ;.:~og~ RJ~TION 

! PROPOSE SIONS TO • , CHAPTER 6 AND THE ' - STATE IMPLEMENTATION 

PLAN 

N~~;se,ai~t h~~ebrhtv~~Q~~~~ ' ments of the Texas Health 

i and Safety Code, Section 1 ! 382.017; Texas Govern-

·3'~~Jt~0fdb1~'::,~h~~tt'o9e ' of Federal Regualtions.- Section 51.102 of the United 

States Environmental Protection Agency regulations concerning State Implemen- tation Plans (SIP), the Texas 

Nautrual Resource Conservation Commission (TNRCC or commission) will conduct a public hearing to receive 

;y;~~~~y c~~~r::nrr6 r:~:; the SIP. 

The proposal includes the fo~ 

lowmg revisions: amend· ments to Section 116.10, 

fig~;e~~i;\e~~~~r~l1 f.gi~~ concerning Amendments and Alterations; the repeal 

~~rn1~~tio'bis\~~c! 1 7 Li~~~ 

¥~~~l 1 !.nd co~~~ninSecg?~ tance Limit,tions, ~ection 116.11 7, concerning Notification for Changes at Quah- • lied Facilities, Section 

116.118, concerning Quali- feed Facilities, and Sect1onl 116.119, concerning Dem-, onstrating Compliance With. Allowable Emission Rate.l 

The TNRCC permit amend- ment and alteration criteria. 

~~dili'~~c;~~~ea"nt ~~e S~~~7~ 

A B~~~~;;~~~~~g L~~is~~~u~;O-I '11osal will be held November 

6, 1995, at 2:00 p.m. 1n Room 131E of TNRCC Build· 

ing C, located at 121 00 North IH-35, Park Technology Center, Austin. The hearmg IS structured lor the re- ceipt of oral and writte'' 

;g~';'~~d~v~Ju~~~r,;~t;dp~;~:: 

ent oral statements when called upon in order of regis- tration. Open discuss1on within the audience will not 

g~~~~e~.uri~g Tt~~cgea~ira~i member will be ava1lable to discuss the proposal 30 minutes prior to the hea.ring and will answer ouest•ons beofre and after the hearing. Written comments not pre· 

":n~~~;h!~e u!'~~"-FNfrtc · central office· in Ausftn. The 

deadline lor submission of 

written comments will be '30 

daYS after tile d~e of Publi· 

m:: ~~::~~~~r..oa~:·rl~~ ~~~ ceived by the TNRCC Office I 

~!~~~~ln~n~ R!,lf,'l\a~~~- ~",; that date wnr be considered 

by the commission prior to any final action on the pro- posal. Please mail corn- 1 ments to Lisa Martin, Office 

of Policy and Regulatory De-

~';,~Pri8§7 Mfus~i~~·T:x~s 78711-3081, and reference 

~~~g_~~ra~~~~~!"o~ ~95 ~~~: ments to (5121 239-5687. Copies of the revision are available at the central office 

of the TNRCC, Air Policy and 

. ~:',~1~~n~g:.t~sil'?i~3~c~~~e 35 Technology Center, Buildi~ E, Austin, and at an· 

Tu":t~~r ~~F~~:;,~ti~~:ce~er~~ contact Thomas Ortiz at (5121239-1054. 

Persons with disabilities who 

~~ve ~~=~iala~~'6'~~~~=~~g~ needs who are planning to attend the hearing should. contact the agency at (5121' 239-4900. Requests should 

be made as far in advance as possible. 

ls~~e?e,:.nbe~u s.til!l ~~xas, on 

/~Jeydia Gonzalez-Gromatzky Director, Legal Services 

Division Texas Natural Resource 

Conservation Commission 
certificate of authority to establish and operate a single 

service health maintenance organization (HMO) offering a 

dental care plan in the State of Texas in compliance with 

the Texas HMO Act and rules and regulations for HMOs. 

The application is subject to public inspection at the 

offices of the Texas DepartmCllt of Insurance, HMO Unit, 

333 Guadalupe, Hobby Tower I. Sixth Aoor, Austin, 

Texas. 

Upon consideration of the application,· if the Commissioner is satisfied that all requirements of law have been 

met. the Commissioner or his designee may ta1cc action to 

issue a certificate of authority to DENTAL BENEFITS, 

INC .• doing business as BUJECARE DENTAL HMO 

without a public hearing. 

Issued in Austin, Texas, on Oclober 4, 1995. 

TR0·9S,2604 Alicia M. Fech!el 

G-ral Cou,...l and Chlel Clerll 

Texas Depanrnera of lra.~rance 

Filed: October 4, 1995 

• • • A 

Texas Department of Mental Health 

and Mental Retardation 

Request for Proposal/Consulting Contract 

The Texas Departiilent of Mental Health and Mental Re· 

tardation (IDMHMR) requests. pursuant to the provisions 

of the Texas Government Code. Chapter 2254, the submission of proposals leading to the award of a contract for an 

organiution that specializes . in quality improvement of 

services and supports for persons with mental retardation. 

The organiution must possess qualifications and refer· 

Cllces indicating a full understanding of the operations of 

comprehensive mental retardation community service systems and methods effective in enhancing outcomes. 

IDMHMR's obj-..c:tives for this project are to improve the 

quality of services and supports as qualitY is defined by 

persons with mental retardation and their families: assure 

that resources are used to achieve outcomes of value to 

persons receiving services and supports; and improve the 

efficiCllcy and effectiveness of state and local authority 

oversight of an increasingly decentralized system. 

The awarded organization will be responsible for: 

• developing a handbook to assist in implementation of the 

IDMHMR's Quality Assurance and Improvement System 

for Mental Retardation Services and Supports. 

• on-site training of department staff and the staff of 4 7 

local mental retardation authorities and their contract providers. and any department designated providers in the 

measurement of outcomes for people with mental retardation and outcomes for organizations which provide services and supports for persons with mental retardation: 

• achieving reliability among staff in the measurement of 

outcomes for people and outcomes for organiz.ations: and 

- providing training and technical assistance in methods 

for using outcome measures in conducting selfassessments and plans of improvement consistent with 

continuous quality improvement principles and technology. 

TD:l\fiiMR reserves the right to accept or reject any or all 

proposals submitted. 

•• ·~ •• ·- -·-·-·-~~.~~--·-··- ..... ···-· 0 

The organization awarded a contract, if any, will be the 

organization whose proposal conforming to this request is 

deemed to be the most advantageous by TDMHMR. Other 

factors in awarding a contract will include, but not limited 

to, demonstrated competence, qualifications, experience, 

and reasonableness in the cost. Proposals must remain 

valid for acceptance and may not be withdrawn for a 

period of 180 days after the proposal closing date. 

An original and two copies of the full proposal must be 

submitted to IDMHMR no later than noon, Monday, 

November 13, 1995. Proposals received thereafter will not 

be considered and will be returned unopened. Proposals 

must be sent to Gretchen Qaibome. Managed Care Administration. IDMHMR. 909 West 45th Street, Room 

367, Austin, Texas 78751. 

For further information or to obtain a complete proposal 

package, please contact Ms. Claiborne at the address pre· 

viously mentioned or call (512) 206-4614. 

Issued in Austin, Texas, on October 4, 1995. 

TRD·9512595 · Am K. Utley 

Chair, Texu MHMR Board 

T exu Departrnera of Mental Heallh and 

Mental Retardation 

Filed: Oclober 4, 1995 

• • • A 

Texas Natural Resource Conservation 

Commission 

Notices of Public Hearing 

Notice is heieby given that pursuant to the requirements of . 

the Texas Health and Safety Code. §382.017: Texas Government Code, Subchapter B. Chapter 2001: and 40 Code 

of Federal Regulations, §51.102 of the United States Environmental Protection Agency regulations concerning State 

Implementatiou Plans (SIP). the Texas Natural ~esource 

Conservation Commission (TNRCC or commission) will 

conduct a public hearing to receive testimony concerning 

revisions to Chapter 116 and the SIP. 

The proposal includes the following revisions: amend· 

ments to §116.10, concerning General Definitions and 

§116.116, concerning Amendments and Alterations: the 

repeal of §116.117, concerning Distance Umitations; and 

new §116.112, concerning Distance Limitations, §116.117, 

concerning Notification for Changes at Qualified Facilities, §116.118, concerning Qualified Facilities, and 

§116.119. concerning Demonstratin& Compliance withAl· 

lowable Emission Rate. The TNRCC permit amendment 

and alteration criteria and procedures are being modified 

pursuant to Senate Bill 1126 (74th Legislature). 

A public hearing on the proposal will be held November 6. 

1995, at 2:00p.m. in Room 131E of TNRCC Building C. 

located at 12100 North IH-35, Park 35 Technology Center, 

Austin. The hearing is structured for the receipt of oral or 

written comments by interested persons. Individuals may 

present oral statements when called upon in order of 

registration. Open discussion within the audience will not 

occur during the hearing; however. a TNRCC staff member will be available to discuss the proposal 30 minutes 

prior to the hearing and will answer questions before and 

after the hearing. 

Written comments not presented at the hearing may be 

submitted to the Th"RCC central office in Austin. The 

deadline for submission of written comments wiU be 30 

20 TtxRrg 8342 October 10, 1995 Texas Register • 

---- --~--·-

•. 

• 
•• 

r 

days after the date of publication of the proposal in the 

Texas Register. Material received by the TNRCC Office of 

Policy and RegulAtory Development by 4:00 p.m. on that 

date will be considered by the commission prior to any 

final action on the proposal. Please mail comments to Lisa 

Martin, Office of Policy and Regulatory Development, 

MC 202, P.O. Box 13087, Austin, Texas 78711·3087, and 

reference Rules Traclcing Log *95144-116-AI. Please fax 

comments to (512) 239-5687. Copies of the revision are 

available at the central offlCC of the !NRCC, Air Policy 

and Regulations Division, located at 12118 North nl-35, 

Park 35 Technology Center, Building B. Austin, and at all 

'INRCC regional offices. For further information, please 

contact Thomas ,Ortiz at (512) 239·1054. 

Per!ons with disabilities who hwe special communication 

or other accommodation needs who are planning to attend 

the hearing should contact the agency at (512) 239-4900. 

Requests should be made as far in advance as possible. 

lssuecl in Austin, Texas, on Septerreer 5, 1995. 

TRE:>-8512606 Kevin Mccaua 

Dl,.ctor, L.gal S.rvioes Dlvlllon 

Texu Natullll Reaource Coreervalion 

Commlulon 

Filed: October 4, 1995 

•• . , • 

Notice is hereby given that pursuant to the requirements of 

the Teu.s Health and Safety Code, §382.017; Texas Gov· 

emment Code, Subchapter B. Chapter 2001; and 40 Code 

of Federal RegulAtions. §51.1 02 of the United States Environmental Protection Agency regulations coneerning State 

Implementation Plans (SIP), the Texas Natural Resource 

Conservation Commission (1NRCC or commission) will 

conduct a public hearing to i'ec:eiVe testimony conce.rnin& 

revisions to Olapter 116 and the SIP. · 

The lNRCC proposes amendments to 30 TAC Oupter 

116, Subchapter P. §116. 610, concerning Applicability; 

and §116.617. concerning Standard Permit List. In addi· 

tion. the lNRCC proposes new §116.620, concerning 

Installation and/or Modification of Oil and Gas Facilities, 

and §116.621. concerning Municipal Solid Waste Landfill. 

The amendments and new sections would reorganize the 

numbering of the standard permits. New §116.621 would 

establish a standard air permit for a Municipal Solid Waste 

Landfill with new, amended, or modified municipal solid 

waste permits. The sections are proposed to allow in· 

creased efficiency in proposing new standard permit provisions. Comment is specifically solicited on §116.621. 

concerning Municipal Solid Waste Landfill. 

A public hearing on the proposal will be held November 6. 

1995, at 10:00 L m. in Room 2S4S oflNRCCBuilding E. 

loeatcd at 12118 North Ui-35, Park 35 Technology Center, 

Austin. The hearing is struCtured for the receipt of oral or 

writt= comments by interested pez-sons. Individuals may 

present oral statements when called · upon in order of 

registration. Open discussion within the audience will not 

occur during the hearing; however. a TNRCC staff mem· 

bet will be available to discuss the proposal 30 minutes 

prior to the hearing and will answer questions before and 

after the hearing. 

Written comments not presented at the hearing may be 

submitted to the TNRCC central office in Austin. The 

deadline for submission of written comments will be 30 

days after the date of publication of the proposed rules in 

the Texas Register. Material received by the TNRCC 

• 

Office of Policy and RegulAtory Development by 4:00 

p.m. on that date will be considered by the commission 

prior to any fmal action on the proposal. Please mail 

comments to Lisa Martin, Office of Policy and RegulAtory 

Development, MC 202, P.O. Box 13087, Austin, Texas 

78711-3087. ancl reference Rules Traclcing LOg *95103-

116-AI. Please fax comments to (512) 239-5687. Copies 

of the revision are available at the central offlCC of the 

TNRCC, Air Policy and Regulations Division, located at 

12118 North Ui-35, Pllk 35 Technology Center. Building 

E. Austin, and at all lNRCC regional offlCes. For further 

information, please contact Monica Pesek at- (512) 

239-1971. 

Persons with disabilities who have special communication· 

or other accommodation needs who are planning to attend 

the hearing should contact the agency at (512) 239-4900. 

Requests should be made as far in advance as possible. 

fssuecl in Austin, Texas, on October 2, 1995. 

TRD-1512805 Kevin MCC.Ia 

Director, Legll Servlcea DMilion · 

Teua Nalullll Reaource Coreervmlon 

Comrn11111on 

Filed: Odober 4, 1995 

• •• • A 

Texas Department of Protective and 

. Regulatory Services 

Correction of Error 

The Texas Department of Protective and Regulatory Services published an invitation for Consultant Proposal Re· 

quest in the October 3, 1995, issue of the Texas Register 

(20 Te.xRe& 8091). The contact person, Deborah Williams, 

phone number was published incorrectly. The phone num· 

ber for Deborah Williams is (512) 438-3367, Mail Code 

E-559. · 

lssuecl in Austin, Texas, on October 3, t995. 

TRD·9512577 Nancy Murphy 

Section M-;er, Media and l"olicy 

Servioes 

T eua Departmllnl of Protective and 

. Regulalory Service~ 

Filed: Odober 3, 1995 

• • • 

Request for Information 

The Texas Department of Protective and Regulatory Services (PRS) is seelcing information regarding the availability of qualified SCI'Vice providers to conduct an economic 

impact and cost/benefit study of recent chan&eS to the 

minimum standards for licensed day-care centers in Texas. 

The minimum standards are rules that facilities m~st fol· • low to obtain and maintain their license 10 provide child · 

care. These rules focus on conditions that impact the 

health, safety, and well-being of children. The study will 

examine changes in the child/staff ratios, group. sizes, and 

square footage requirements of the minimum standards 

that were adopted in 1994. 

The goals of the economic impact aspect of the study are 

to determine the differential and actual economic impact 

of the changes for facilities, the average cost increase for 

centers which are impacted and how that cost is recouped, 

the profile of centers that are impacted. the impact on 

IN ADDITION October IO, 1995 20 TexReg 8343 
.. 

•:j; 'li 

.. !!-

.. --·· ·-.--- --~-------

§408.63. Distribution. 

(a) Copies of this subchapter shall 

be distributed to: 

(1) members of the Texas Mental Health and Mental Retardation Board; 

(2) executive. management. and 

program staff of the department's Central 

Office; 

(3) chairs of boards of trustees 

of local authorities; 

(4) CEOs of local authorities 

and designated providers; and 

(5) interested advocates and advocacy organizations. 

(b) The CEOs of local authorities 

and designated providers are responsible for 

distributing copies of this subchapter to: 

(1) appropriate staff; 

(2) providers; 

(3) agents; 

(4) any individual rece1vmg 

services and supports who requests a copy: 

(5) family members and advocates of individuals receiving services and 

supports who request a copy: and 

(6) any employee who requests 

a copy; and 

(7) any other person who requests a cbpy. 

This agency hereby certifies that the proposal 

has been reviewed by legal counsel and 

found to be within the agency's authority to 

adopt. 

Issued in Austin, Texas. on October 4, 1995. 

TRD-9512596 Ann Utley 

Chair, Texu MHMR Board 

Texu Depanment of 

Mental Heatth and 

Mental Relardalion 

Earliest possible date of adoption: November 

10, 1995 

For further information, please call: (512) 

206-4516 

• • • 111LE 30. ENVIRONMENTAL QUALITY 

Part I. Texas Natural 

Resource Conservation 

Commission 

Chapter 116. Control of Air 

Pollution by Permits for 

New Construction or 

Modification 

The Texas Natural Resol.l'ce Conservation 

Commission (TNRCC or commission) proposes amendments to §116.10, concerning 

General Definitions. and §116. 116, concerriing Amendments and Aherations; the repeal 

of §116.117, concerning Distance Limitations; 

and new §116.112, concerning Distance Limitations, §116.117, concerning Notification lor 

Changes at Oualifted Facilities, §118.118, 

concerning Oualifted Facilities. and §116.119, 

concerning Demonstrating Compliance with 

Allowable Emission Rate. The TNRCC permit 

amendment and aheration criteria and procedun~s are being modified pursuant to Senate 

Bill 1128 (74th Legislature, 1995). 

The TNRCC proposes revisions to §116.10, 

concerning General Definitions, to amend the 

definition of new source and to add new deli· 

nitions lor actual emission rate, aHowable 

emission rate, best avaHable control technology (BACT), maximum allowable emission 

rate table, modification of existing facility, net 

increase in allowable emissions, non-qualified 

facility, qualified facility, and relatively equivalent compound. 

The TNRCC requests comments on the definition of relatively equivalenl coiJ1)ound. Relatively equivalenl compound is defined 

generally in this rule proposal so that 

specificity on chemical groupings may be 

handled in a separate guidance document. 

The approach of the staff is to develop concurrently with the rule proposal a guidance 

documenl which assists qualified facility implementation of changes under the proposed 

§116.118(b) (2). The guidance documenl will 

group compounds based on similar chemical 

and effects characteristics. 

In the definition of actual emission rate, lacili· 

ties are anowed to consider any consecutive 

12-rnonth period within the past ten years 

before the change. This definition establishes 

a rolling window. The ten-year period is constrained by the requiremenl that the window 

lor considering actual emissions must begin 

no earlier than January 1, 1990. The purpose 

of this restriction is to ensure the ability of the 

permitting system to protect public health ill 

the ear1y years of the new exeiJ1)tions. 

Proposed §118.118, concerning Amendmenls and Alterations, establishes the criteria 

by which quafified facilities thai make 

changes must apply with the executive director lor a permit amendment. The- proposed 

section also directs qualified facilities to make 

application lor permit arrl8ndrr18nts on the Pl1 form and requires that any existing level of 

control at a qualified facility not be lessened 

by actions allowed under this section. 

Proposed §116.117, concerning NotifiCation 

lor Changes at Qualified Facilities, provides 

the criteria lor notification to the TNRCC lor 

various changes at qualified facilities. In addi· 

tion, the section establishes the requirement 

for record keeping of all changes made under 

the proposed §118. 116(b)(2) at the facility. 

This section also requires that all changes be 

incorporated inlo the facility's permit upon 

amendment or renewal and provides lor the 

continual applicability of any appropriate federal requiremenl. The staff requests specific 

comments on the August 1 deadline lor submission of annual reports of changes that did 

not require notification. 

Proposed §118.118, concerning Qualified Facilities, provides the cases in which prior in· 

20 TexReg 8306 October 10, 1995 Te:ms Register • 

volverr18nl of the TNRCC is necessary lor a 

facility to be considered qualified. The staff 

also requests specific commenls and assistance on the concept of adjusting a 

grandlathered facility's allowable emission 

rate once current BACT is applied to beCOme 

a qualified facility. It is expected that the maximum potenlial emission rate with BACT will 

be higher than the facility's actual emission 

rate with BACT applied. The difference between the two emission rates should allow lor 

the lacHity to exercise the nexibility established by this rule. · 

Proposed §116.119, concerning Demonstrating Compliance with Allowable Emission 

Rate, provides the opportunity lor the executive director to require any facility to slbmit 

information demonstrating compliance with 

allowable emission rates. 

Proposed § 116.112, concerning Distance 

Limitations, relocates the exact rule language 

in the repealed §1 16.117 to this new section. 

As rnenlioned previously. the staff of the 

TNRCC will develop guidance lor the iiJ1)1ementation of · changes allowed Under 

§116.116(b)(2). The staff win have two guidance docurrl8nts lor this purpose. A BACT 

guidance document win be provided in order 

lor facilities to become qualified lor treatment 

under §118.118(b)(2). The guidance document will be comprehensive enough to establish BACT lor many types of facilities. 

However, in some instances, a case-by-case 

.review will be required lor control technologies not in the guidance document. b is intended that this guidance document also be 

flexible for quick revision as different technologies demonstrate equivalency to established 

technologies. 

The staff will develop a TNRCC guidance 

documenl covering modifications to existing 

facmties. This guidance will assist in the implementation aspects of chemical speciation, 

trading of allowable and actual emission levels, and notification. On chemical speciation, 

the staff will determine groupings lor chemical 

compounds that have similar characteristics 

and effects. These groupings are intended to 

anow qualified facilities to make changes 

which result in the emission of a different, yet 

relatively equivalent compound without obtaining a permit amendment. 

Along with the grouping, the staff will establish a de minimis level under which emission 

point trading of t;()I11)0Unds within a grouping 

may occl.l' without notification of the TNRCC. 

Trading of compounds between groupings 

will be permissible under certain ratios based 

upon impacts. These determinations will be a 

part of the guidance document. 

Notification of the TNRCC is required under 

specifiC circumstances in this proposal. The 

guidance document win further clarify the required information to be included in the various notifications as well as establish the form 

to be submitted to the TNRCC. 

While the required reviews by the TNRCC 

under these rules were kept to a minimum, 

nothing should prevenl a facility lrom voluntarily requesting additional guidance or early 

review from the TNRCC. The TNRCC is willing to assist companies in making the appro-
priale determinalions so that facilities may 

p-operty use the flexibility afforded by Senate 

Bil 1126. 

Steve Minick, Strategic Planning and Appropriations Division, has determined that Ia the 

firs( fiVe-year period the sections are in effect 

there wiD be no major fiscal impfiCalions Ia 

state or local go.-emmenl as a resull of en· 

forcing or administering the sections. 

Mr. Mini(t( also has determined that fa each 

yetlf of the firsl five years the sections are in 

effect the public benefit anticipated as a result 

of enlacing the sections wiU be deaeases in 

the emissions from "andfathered facmties 

which are required to install Best Available 

Control Technology to use these sections. 

There wiD be negf.gble costs to the regulated 

community and no new economic costs to 

persons who are requred to COI11lly with the 

sections as proposed. 

A ptblic hearing on the proposal wiD be hek:t 

No.-ember 6, 1995, a1 2:00 p,m. in Room 

131E ofTNRCC Buik:ting C. located al12100 

Nath IH-35, Park 35 Technology Center, 

Austin. The hearing is slrucllnd for the rece~ of oral or wrilten comments by interested persons. lndivliuals may p-esent oral 

statements when caDed upon in order of registration. Open discussion within the audience 

wiU nor occur during the hearing; however, a 

TNRCC staff member wiD be available to 

discuss the proposal 30 minutes prior to the 

hearing and win answer questions belore and 

after the hearing. 

Written comments not presented al the hearing may be sLbmitled to the TNRCC central 

office in Austin. The deadline for submission 

of written comments will be 30 days after the 

date of pl.bfJC&tion of this proposal in the 

Texas Register. Material received by the 

TNRCC Office of Policy and Regulatory Development by 4:00 p.m. on that date wDI be · 

considered by the commission prier to any 

flllal action on the p-oposal. Please mail comments to Lisa Martin, Office of Policy and 

Regulatory Development, Mail Code 202, 

P.O. Box 13087, Austin, Texas 78711-3087, 

and reference Rules Tracking Log #95144-

11&-AI. Please lax comments to (512) 

239-5687. Copies of the revision are available at the central office of the TNRCC, Ajr 

Policy and Regulations Division, located at 

12118 Nath IH-35, Park 35 Technology Center, Buik:ting E, Austin, and at an TNRCC 

regional offices. For fu1her information, 

please contact Thomas Or1iz at (512) 

239-1054. 

Persons with disabilities who have special 

communication a other accommodation 

needs who are planning to aHend the hearing 

shouk:t contact the agency at (512) 239-4900 .. 

Requests shouk:t be made as lar in advance 

as possble. 

Subchapter A. Definitions 

• 30 TAC §116.10 

The amendment is p-oposed under the Texas 

Health and Safety Code, Texas Clean Ar Act 

(TCAA), §382-017, which provides the 

TNRCC with the authaity to adopt rules con· 

sistent with the policy and purposes of the 

TCAA. 

The proposed amendment implements the 

Texas Heallh and Safety Code, §382. 017. 

§116.10. General Definitions. Unless specifically dcfmed in the Texas Clean Air Act 

(TCAA) or in the rules of the Texas Natural Resource Conservation Commission 

(TNRCC or commission) [board]. the 

terms used by the commission [board] have 

the meanings commonly ascribed to them in 

the field of air pollution control. In addition 

to the terms which are defmed by the 

TCAA, and in §101.1 of this title (relating 

to General Rules). the following words and 

terms, when used in this chapter, shall have 

the following meanings, unless the context 

clearly indicates otherwise. 

Actual emission rate-The highest 

annual rate (consecutive 12-month 

period) of emissions from a qualified facility achieved within a 120-month period 

prior to the chana:e. The period shall 

start no earlier· than January 1, 1990. 

This rate cannot exceed any federal or 

state emissions limitation. 

Allowable emission rate-An authorized rate of emissions from a facility 

that emits air contaminants. This rate 

cannot exceed the allowable emission rate 

· specified by an applicable state or federal 

relt1Jlation other than this chapter. 

(A) An allowable emission 

rate for a permitted facility is an enforceable emission limit established in a permit on a maximum allowable emissions 

rate table plus any allowable emissions 

authorized by a standard exemption. 

(B) An allowable emission 

rate for an exempted facility is the least 

of the emission rate allowed in §116.211 

of this title (relatine to Standard Exemption List), a rate specified iu the applicable exemption, or a federally enforceable 

rate established on a Pl-8. 

(C) An allowable em1ss•on 

rate for a qualified grandfathered facility 

is an emission rate at 01e maximum capacity accordine to the physical or 

operational desip. 

(D) An allowable emission 

rate for a facility authorized by standard 

permit, other than §116. 617(2) of this 

title (relating to Standard Permits List), 

is the maximum emission rate represented in the registration for the standard permit. 

(E) An allowable em•ss•on 

rate for· a qualified facility voluntarily 

installine controls shall be the maximum 

11ilowable emission rate prior to the installation of the controls. 

BACT -Best Available Control 

Technoloey with consideration riven to 

the technical practicability and the economic reasonablenesS of reducing or 

eliminatin& emissimu from the facility. 

Maximum allowable emissions 

rate table-A table establishine the allowable emission rates included with a permit. 

Modification of existin& facility-Any physical chanee in, or change in 

the method of operation of a facility in a 

·manner that increases the amount -of any 

air contaminant emitted by the facility 

into the atmosphere or that results in the 

emission of any air contaminant not previously emitted. The term does not include: 

(A) insignificant increases 

in the amount of any air contaminant 

emitted that is authorized by one or more 

boai-d exemptions; 

(B) iosipificant increases 

at a permitted facility; 

(C) maintenance or replacement of equipment components that 

do not increase or tend to increase the 

amount or chaJ12e the characteristics of 

the air contaminants emitted into the atmosphere; 

(D) an increase in the annual hours of operation unless the existing facility bas received a preconstruction 

permit or bas been exempted, pursuant 

to §1 16.211 of this title, from 

preconstruction permit requirements; 

· (E) a physical change in, or 

chanee in tbe method of operation of, a 

facility that does not result in a net increase in allowable emissions of any air 

contaminant and that does not result in 

the emissions of any air contaminant not 

previously emitted, provided that. the fa-

~ility: 

(i) has receiYed a 

precmutruction permit or penni! amendment or has been exempted pursuant to 

§116.211 of this title from 

precmutruction permit requirements no 

earlier than 120 montbs before the 

chau&e will occur; or 

(ir) uses, regardless of 

whether the facility has received a permit, an air pollution control method that 

is at least as effective as BACT, considerin& technical practicability and economic 

reasonableness, that the board required 

or would have required for a facility of 

the same class or type as 11 condition or 

issuine a permit or permit amendment 

120 months before the chanee will occur; 

t PROPOSED RUI.ES October 10, 1995 20 TetRtR 8307 
' I. 

I. 

! 

~ 

I 

! 

., 

.i 

. I 

. . 

' 

I. 

~.•1' '. 

1 

-- ....... -----------

(F) a physical chanee in, or 

chanee in the method of operation of, a 

facility where the chanee is within the 

scope or 8 flexible permit; or 

(G) a chanee in the method 

of operation of a natural £liS processine, 

· treatin£, or compression facility connected to or part or 8 natural eas eatherine or transmission pipeline which does 

not result in an annual emission rate of a · 

pollutant iD excess of the volume emitted 

at the maximum desia:ned capacity, provided that the facility is one for which: 

(i) construction or operation started on or before September I, 

1971, and at which either no modification 

has occurred after September 1, 1971, or 

·at which modifications have occurred 

only pursuant to standard exemptions; or 

(ii) construction started 

after September 1, 1971, and before 

March I, 1972, and which re£istered in 

accordance with the TCAA, §382.060, as 

that section existed prior to September 1 1991~ • 

Net increase in allowable emissions-For a qualified facility, an increase 

in allowable emissions considerine any 

air pollution control method applied to 

the facility, any decrease in aUowable 

emissions from other qualified facilities 

at the same TNRCC air quality account 

number that have received a permit or 

permit amendment within 120 months, 

and any decrease in actual emissions 

from other qualified facilities at the same 

TNRCC account number.. . . 

· · New source-Any stationary source. 

the construction or modification of which is 

commenced after Au£USt 30, 1971; or, for 

those sources that bad contracts to start 

before Au£0St 30, 1971, but did not start 

actual construction until after March I, 

1972 [March 5. 1972]. 

. . Non-qualified facility-Any facility 

that 1s not a qualified facility. 

Qualir~ed facility-An existine fa-· 

cility that has received a permit or has 

been exempted pursuant to Subchapter C 

of this chapter (relatine to Permit Exemptions) no earlier than 120 months 

prior to a chanee iD that facility; or, that 

uses an air pollution control method that 

is at least as effective as BACT that 

would have been required for the same 

type of facility that received a permit no 

earlier than 120 months prior to a physical o~ .operation chanee to the facility. If 

a fac1hty adds controls to become a qualified facility, those controls must meet 

current BACT requirements. · . 

Relatively equivalent compound-A compound that is in the same 

eroupine due to similar characteristics 

and effects as specified by the executive 

director of the . T~RCC. 

This agency hereby certifies that the Jroposal 

has been reviewed by legal counsel and 

found to be within the agency's authority to 

adopt. . 

Issued in Austin, Texas, on September s. 

1995. 

TR0-9512548 Kevin McCalla 

Director, Legal OMUon 

Texaa Natural RHOUJ'C41 

Coreervatlon 

Commlll&lon 

Proposed date of adoption: November 29 

1995 • 

For bther information, please cab: (512) 

239-1966 

• • • 

Subchapter_B. New Source 

Review Permits 

Permit Application 

• 30 TAC §§116.112, 

116.116-116.119 

The ~ndment and new sections are Jroposed under the Texas ..,eallh and Safety 

Code, the T~xas Clean M Act (TCAA), 

§382.017, whiCh provicles the TNRCC with 

the authority to adopt rules consistent with 

the policy and purposes of the TCAA. 

The proposed amendment and new sections 

implement the Heallh and Salety Code, 

§382.017. 

§116.1 12. Distance Limitations. 

(a) Lead smelters. Pursuant to the 

Texas Clean Air Act, §382.053. a permit 

shall not be issued for 1: new lead smelting 

plant at a site located within 3.000 feet of 

the residence of any individual and at which 

lead smelting operations have not been conducted before August 31. 1987. This subsection d~ not apply to a modification of 

a lead smelting plant in operation on or 

before August 31. 1987. to a new lead 

smelting plant or modification of a plant 

with the capacity to produce not more than 

200 pounds of lead per hour. or to a lead 

smelting plant that was located more than 

3.000 feet from the nearest residencewhen 

the plant began operations. 

(b) Hazardous waste permits. Per-

~ts for haurdous waste management facilltles shall not be issued if the facility is to 

be located in the vicinity of specified public 

access areas under the following circumstances. · 

(l) No permit shall be issued for a new hazardous waste landfill or land treat· 

ment facility or an areal expansion of an existing facility if the boundary of the facility or expansion is to be located within 

1.000 feet of an established residence. 

church, school. day care center. surface .wa· 

20 Te:rReg 8308 October 10, 1995 Textu Register • 

ter body used for a public drinking water 

supply, or dedicated public park. 

(2) No permit shall be issued for 

a new commercial hazardous waste management facility or the subsequent areal' expansion of such a facility or unit of that 

facility if the boundary of the unit is to be 

located within one-half mile (2.640 feet) of 

an established residence. church, school. 

day care center, surface water body used for 

a public drinking water supply, or dedicated 

public park. 

(3) For a subsequent areal expansion of a new commercial haZardous 

waste management facility that is required 

to comply with paragraph (2) of this subsection, distances shall be measured from a 

residence. church. School. day care center. 

surface water body used for a public drinking water supply, or dedicated public park 

only if such structure, water supply, or park 

was in place at the time the distance was 

certified for the original permit. 

(4) No permit shall be issued for 

a· new commercial hazardous waste man~ 

agement facility that is proposed to be located within one-half mile (2.640 feet) from 

an established residence. church, school. 

day care center, surface water body used for 

a public drinking water supply. or dedicated 

public park. at any distance beyond the 

facility's property boundaries. unless the 

applicant demonstrates that the facility will 

be operated so as to safeguard public health 

and welfare and protect physical property 

and the environment . 

(5) The measurement of distances required by paragraphs (1)-(4) of this 

subsection shall be taken toward an established ·residence. church. school, day care 

center, surface water body used for a public 

drinking water supply. or dedicated public 

park that is in use when the permit application is filed with the Texas Natural Resource . Conservation Commission. The 

restrictions imposed by paragraphs (1)-(4) 

of this subsection do not apply to a residence. church. school, day care center, surface water body used for a public drinking 

water supply, a dedicated public park located within the boundaries of a commercial 

hazardous waste management facility. or 

property owned by the permit applicant. 

(6) The measurement of distances required by paragraphs (1)-(4) of this 

subsection shall be taken from a perimeter 

around the proposed hazardous waste management unit. The· perimeter shall be no 

more than 75 feet from the edge of the 

p~posed hazardous waste management 

urut. 

§JJ6.JJ6. Amendments and Alterations. 

(a) Representations and conditions [Permit amendments]. All represents· 
) 

tions with regard to construction plans and 

operation procedures in an application for a 

permit, special permit. or special ex~ption. as well as any general and spCC1al 

oonditions attached to the permit, special 

permit, or special exemption itself. become 

conditions upon which the subsequent permit. special permit. or special exemption 

are issued. [It shall be unlawful for any 

person to vary from such representation. or 

permit condition if the change will cause a 

change in the method of control of emissions; the character of the emissions. or will 

result in ari increase in the discharge of the 

various emissions. unless _ application is 

made to the executive director to amend the · 

permit or special permit in that regard and 

such amendment is approved by the executive director or the Texas Natural Re- source Conservation Commission 

[Commission]. Applications to amend a 

permit or special permit shall be submitted . 

with a completed Form PI-1 and are subject 

to the requirements of § 116.111 of this title 

(relating to General APplication).] 

(b) Permit amendments. 

. (l) For non-qualified facilities, 

it shall be unlawful for any person to 

vary from any representation or permit 

condition if the chanee · will cause a 

chanee in the method of. control of emissions, the character of the emissions, or 

wilJ result in an increase in the discha~e 

of the various emissions, unless applica· 

tion is made to the executive director to 

amend the permit or special permit in 

that rerard and such amendment is approved by the executive director or the 

Texas Natural Resource Conservation· 

Commission (TNRCC). Applications to 

amend a permit or special permit shall be 

submitted with a completed Form Pl·1 

and are subject to the requirements of 

§116.111 of this title (relatine to General 

Application). 

(2) For qualified facilities, it 

shall be unlawful for any person to vary 

from any representation or permit condi· 

tion if the chanee will result in the emission of any substance other than a. relatively equivalent compound or result 

in a net increase in the allowable emis· 

sions, unless application is made to the 

executive director to amend the permit or 

special permit in ~hat r~ard and su.ch 

amendment is approved by the execut•ve 

director or the TNRCC. Applications to 

amend a permit or special permit shall be 

submitted with a completed Form PI-1 

and are subject to the requirements of 

§ 116.111 of this title. The existine level of 

control may not be lessened for any qual· 

ified facility. 

(c)[(b)] Permit alterations. 

(J} A permit alteration is: 

(A) any variation from 8 representAtion in 8 permit application that does 

not involve an increase in emission rates or 

a change in the character or method of 

control of emissions; or 

(8} [for] any ·change in a. 

general or special condition of a permit that 

does not involve an increase in emission 

rates or a change in the character or method 

of control of emissions; [.] 

(C) a decrease in allowable 

emissions. 

(2) · All requests for permit alterations which may result in an increase in 

off-property concentrations of air contami· 

nants, involve a change in pennit condi· 

tions. or affect facility or control equipment 

performance must receive prior approval by 

the executive director. The executive direc· 

tor shall be notified in writing of all other 

permit alterations. Any request for permit 

alteration shall include information suffi· 

cient to demonstrate that the change does 

not interfere with the owner or operator's 

previous demonstrations of compliance with 

the requirements of §116.111(3) of this title. -

(3) Permit alterations · shall not 

be subject to the requirements of Best 

Available Control Technology identified in 

§116.111(3) of this title. 

_ (d)[(c)] Standard exemption in lieu 

. · of ·permit amendment or alteration. Not- . 

withstanding subsections (a), [or] (b), or (c) 

of this section. no permit amendment or 

alteration is required if the changes to the 

permitted facility qualify for an exemption 

under Subchapter C of this chapter (relating 

to Permit Exemptions) unless prohibited by 

permit condition as provided in §116.115 of 

this title (relating to Special Conditions). 

All such exempted changes to a permitted 

facility shall be incorporated into that facility's permit at such time as the permit is 

amended or renewed. 

§116.1 17. Notification for Changes at 

Qllalified jQI,:i/ities. 

(a) All qualified facilities shall 

maintain documentation at the plant site 

supporting that physical or operational 

changes are excluded from permitting re· quirements per §116.116{b)(2) of th~ title 

(relating to Amendments and Alterabons). 

This documentAtion shall include quantifi· 

cation of all emission increases and de· creases associated with the physical or 

operational chang~. a description of ~e 

physical or operabonal change. a descnp· 

tion of any equipment being instAlled. sufficient information as may be necessary to 

demonstrate that the project will comply 

with the Federal Clean Air Act. Title 1. 

Parts C and D. and be made available to 

representAtives of the Texas Natural Re· source Conservation Commission (lNRCC) 

upon request 

(b) No notification is required at 

the time a change is made for qualified 

facilities that meet the following criteria. 

An aMual report, including information described in subsection (a) of this section. of 

all changes made to a facility shall be submitted to the appropriate TNRCC regional 

off1Ce by August 1st of each year:· 

(1) Best Available Control 

Technology for the facility has been established by the executive director of the 

lNRCC; 

(2) the facility has an established allowable emission rate on an accu· 

rate mlximum allowable emission rate tAble 

CMAERn. Pl-8 form or PI-E form. A 

MAERT shall be considered to be accurate 

if all air contaminants affected by the 

change have been represented. all emission 

points have been identified, and emissions 

have been calculated according to good engineering practices; and 

(3) the change involves no trad· 

ing of allowable or actual emissions be· 

tween facilities. 

(c) . Pre-change notification on a PIE form shall be submitted to the 1NRCC by 

certified mail prior to the physical or 

operational change. The physical or 

operational change may be made after re· ceipt of written notiflCation from the 

lNRCC that there are no objections. or 45 

days after receipt by the 1NRCC of the 

registration for the change. whichever occurs first Th.is prior notification shall be 

required if the change involves a trade of 

allowable or actual emissions above a de · minimis level established by the executive 

director of the lNRCC. · 

(d) Post-change notification on a PI-E form within 30 days of the change is 

required for all trades between facilities be· 

low the de minimis level established by the 

executive director of the 1NRCC. 

(e) All such changes ·to a permitted 

facility shall be incorporated into that facili· 

ty' s permit at such time as the permit is 

amended or renewed. 

(f) Nothing in this section shall 

limit the applicability of any federal re· quirement. 

§116D8._ Qualified Facilities. 

(a) In order ro establish that the facility is qualifled. pre-change notifiCation on a PI·B form shall be submitted to the 

Texas Natural Resource Conserv:ltion Com· 

mission (lNRCC) by certified mail prior to 

the physical or operational chan&e in the 

following cases: 

• PROPOSED RULES October 10, 1995 20 TuReg 8309 
... _· .... .-. .-.-- ·-- .. 

(1) Best Available Control 

Technology (BACD for the facility has not 

been established by the executive director 

of the Th'RCC; 

(2) the facility does not have an 

allowable emission rate or the allowable 

emission rate is inaccurate. 

(b) The physical or operational 

change may be made after receipt of written 

notification from the TKRCC that there are 

no objections, or 45 days after receipt by 

the Th'RCC of the registration for the 

change. whichever oceurs first. This notification may be submitted at the same time as 

a pre-change notification required under 

§116.117(c) of this title (relating to Notification for Changes at Qualified Facilities) 

or at any other time prior to making a 

physical or operational change to the facility. 

(c) If installing controls to become 

a qualified facility, the facility must install 

BACT and the allowable emission rate for 

the facility shall be the maximum potential 

emission rate after the installation of controls. If otherwise required, authorization 

under this chapter shall be obtained prior to 

installation of these controls. 

§116.119. Demonstrating Compliance with 

Allowable Emission Rate. The owner or 

operator of any facility may be required to 

submit information demonstrating compliance with allowa~le emission rates upon 

request of the Texas Natural Resource Conservation Commission (TNRCC). The 

method of demonstrating compliance shall 

be as required by this section or as otherwise directed by the Th'RCC: 

(1) the method specified in a 

permit C()vering that facility; 

(2) continuous emissions monitors; 

(3) parametric/predictive emissions monitors; 

(4) stack testing supported by 

engineering calculation based on measured 

process variables; 

(5) emissions related 

recordkeeping. 

This agency hereby certifies that the proposal -

has been reviewed by legal counsel and 

found to be within the agency's authority to 

adopt. 

Issued in Austin, Texas, on September 5, 

1995. 

TRD-9512548 Kevin McCalla 

Dire<:1or. Legal Services 

Division 

Texas Natural Re&ourc:e 

Con&ervation 

Commission 

Proposed date of adoption: November 29, 

1995 

For further information, please call: (512) 

23~1966 

• • • 

• 30 TAC §116.117 

(Editors noll': Tilt> It' XI of I he folluwing St'Ciion 

• propo.tt'd for rrpt>al will nol M pul>lished. Till' 

.<rclion may l>t> l'.wmined in 1/ae offices of lilt' 

Texas Narural Resourcl' Consnvalion Commis· 

sion or in lhl' Tt>xas Rt'gisln offia. Room 245, 

.lames Earl Rudder Building, 1019 Bra;os Slrt't'l, 

Auslin.) 

The repeal is proposed under the Texas 

Health and Safety Code, the Texas Clean Air 

Act (TCAA), §382.017, which provides the 

TNRCC with the authority to adopt rules con· 

sistent with the policy and ptrpases of the 

TCAA. 

The repeal implements the Texas Health and 

Safety Code, §382.017. 

§116.117. Distance Limitation-f. 

This agency 'hereby certifies that the proposal 

has been reviewed by legal counsel and 

found to be within the agency's authority to 

adopt 

Issued in Austin, Texas, on September 5, 

1995. 

TRD·9512547 Kevin McCalla 

Director, Legal Services 

Division 

Texa& Natural Resource 

Conservation 

Commission 

Proposed date of adoption: November 29, 

1995 

For further information, please call: (512) 

.23~1966 

• • • 

Chapter 330. Municipal Solid 

· Waste 

The Texas Natural Resource Conservation 

Commission (commission a TNRCC) proposes the repeal of §330.568, amendments 

to §§330.561·330.567, and new §330.568 

and §330.569, concerning the development of 

regional and local solid waste management 

plans, and financial assistance to regional 

planning commissions and local governments. 

The proposed amendments specify requirements lor the preparation and approval of 

regional and local solid waste management 

plans and the provisions of a planning lund 

lor providing financial assistance to prepare 

those plans. The new §330.569 establishes a 

new regional solid waste grants program. The 

title of the subchapter will therefore be 

changed from "Guidelines lor Regional and 

Local Solid Waste Management Plans· to 

"Regional and Local Solid Waste Manage· 

ment Planning and Financial Assistance·. 

The proposed rule changes update the regional and local planning requirements in the 

existing rules to include a requirement to con· 

duct an inventory of existing ana closed land· 

20 Tc1·Reg 8310 October 10, 1995 TeXlls Register • 

fills, and to otherwise update the rule 

language to account lor changes in agency 

responsibilities and plan approval policies. 

The new grants program provides lor financial assistance to regional planning commissions and local governments to conduct local 

and regional projects consistent with state, 

regional, and local solid waste management 

plans, and to update and maintain those 

plans. The aHocation of funds under the new 

grants program is to be according to a formula established by the commission that 

takes into account population, area, solid 

waste lee generation, and public health 

needs. The specific details of this formula 

have been developed by the commission, in 

cooperation with various interested parties, 

and copies will be available at the public 

hearing to be held October 27, 1995. 

Amendment to §330.561, relating to pUrpose 

and scope, reflect the agency's cLJTent jurisdiction over all of the types of wastes that 

must be considered in regional and local solid 

waste management plans. 

Amendment to §330.562, relating to definitions of· terms and abbreviations, include new 

definitions and eliminate some that are no 

longer necessary. 

Amendment to §330.563, relating to regional 

and local plan requirements, specify the re-

. quirement in House Bill 2537, Regular Session, 73rd Legislattre (1993) that regional 

and local solid waste management plans include an inventory of municipal solid waste 

landfill units, including those that are no longer ·in operation, the location of those units, 

the cLJTent owners of the land on which the 

former landfill units were located, and the 

cLJTent use of the land. 

Amendment to §330.564, relating to coordinating with other programs, reflect changes in 

requirements to coordinate solid waste management plans with programs of other agencies as a result of the consolidation of Texas 

Air Control Board and the Texas Water Com-

. mission and the transfer of the municipal solid 

waste management program from the Texas 

Department of Health (TDH) to the TNRCC. 

Amendment to §330.565, relating to public 

participation requirements for solid waste 

plans, is amended only to change references 

regarding the TDH to the TNRCC. 

Section 330.566, relating to procedures lor 

regional and local plan submission and approval, is amended to.change references regarding the Commissioner of Health to the 

Executive Director (TNRCC) and Board of 

Health to the TNRCC, and to revise procedures lor updating approved solid waste man· 

agement plans. 

Section 330.567, relating to financial assistance Ia regional and local plans, is 

amended to change reterences regarding the 

TDH and Board of Health to the TNRCC and 

Commissioner ot Health to Executive Director 

(of the TNRCC), and to update procedures 

lor obtaining state financial assistance Ia re· 

gional and local planning. 

Section 330.568, concerning approved state, 

regional, and local solid waste management 

plans. is proposed to be repealed because 

those state and regional solid waste manage-
Barry R. McBee, Chairman 

R. B. "Ralphw Marquez, Commissioner 

John M. Baker, Commissioner 

Dan Pearson. Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

ON PROPOSED REVISIONS TO CHAPTER 116 

AND THE STATE IMPLEMENTATION PLAN 

Notice is hereby given that pursuant to the requirements of the 

Texas Health and Safety Code, §382. 017; Texas Government Code, 

Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, 

§51.102 of the United States Environmental Protection Agency 

regulations concerning State Implementation Plans (SIP) , the Texas 

Natural Resource Conservation Commission (TNRCC or commission) will 

conduct a public hearing to receive testimony concerning revisions 

to Chapter 116 and the SIP. 

The proposal includes the following revisions: amendments to 

§116.10, concerning General Definitions and §116.116, concerning 

Amendments and Alterations; the repeal of §116 .117, concerning 

Distance Limitations; and new §116.112, concerning Distance 

Limitations, §116.117, concerning Notification for Changes at 

Qualified Facilities, §116.118, concerning Qualified Facilities, and 

§116.119, concerning Demonstrating Compliance with Allowable 

Emission Rate. The TNRCC permit amendment and alteration criteria 

and procedures are being modified pursuant to Senate Bill 1126 (74th 

Legislature) . 

A public hearing on the proposal will be held November 6, 1995, at 

2:00p.m. in Room 131E of TNRCC Building C, located at 12100 North 

IH-35, Park 35 Technology Center, Austin. The hearing is structured 

for the receipt of oral or written comments by interested persons. 

Individuals may present oral statements when called upon in order 

of registration. Open discussion within the audience will not occur 

during the hearing; however, a TNRCC staff member will be available 

to discuss the proposal 30 minutes prior to the hearing and will 

answer questions before and after the hearing. 

Written comments not presented at the hearing may be submitted to 

the TNRCC central office in Austin. The deadline for submission of 

written comments will be 30 days after the date of publication of 
PAGE TWO 

the proposal in the Texas Register. Material received by the TNRCC 

Office of Policy and Regulatory Development by 4:00 p.m. on that 

date will be considered by the commission prior to any final action 

on the proposal. Please mail comments to Lisa Martin, Office of 

Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, 

Texas 78711-3087, and reference Rules Tracking Log #95144-116-AI. 

Please fax comments to (512} 239-5687. ·copies of the revision are 

available at the central office of the TNRCC, Air Policy and 

Regulations Division, located at 12118 North IH-35, Park 35 

Technology Center, Building E, Austin, and at all TNRCC regional 

offices. For further information, please contact Thomas Ortiz at 

(512} 239-1054. 

Persons with disabilities who have special communication or other 

accommodation needs who are planning to attend the hearing should 

contact the agency at (512} 239-4900. Requests should be made as 

far in advance as possible. 

Issued in Austin, Texas, on September 1, 1995. 

i Gonzalez-G omatz 

ctor, Legal Servic s 

Division 

Texas Natural Resource 

Conservation Commission 
Texas ~atural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 1 

The Texas Natural Resource Conservation Commission (TNRCC or 

commission) proposes amendments to §116.10, concerning General 

Definitions, and §116.116, concerning Amendments and Alterations; 

the repeal of §116.117, concerning Distance Limitations; and new 

§116.112, concerning Distance Limitations, §116.117, concerning 

Notification for Changes at Qualified Facilities, §116.118, 

concerning Qualified Facilities, and §116.119, concerning 

Demonstrating Compliance with Allowable Emission Rate. The TNRCC 

permit amendment and alteration criteria and procedures are being 

modified pursuant to Senate Bill 1126 (74th Legislature, 1995). 

The TNRCC proposes revisions to §116.10, concerning General 

Definitions, to amend the definition of new source and to add new 

definitions for actual emission rate, allowable emission rate, 

best available control technology (BACT), maximum allowable 

emission rate table, modification of existing facility, net 

increase in allowable emissions, non-qualified facility, 

qualified facility, and relatively equivalent compound. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

The TNRCC requests comments on the definition of relatively 

Page 2 

equivalent compound. Relatively equivalent compound is defined 

generally in this rule proposal so that specificity on chemical 

groupings may be handled in a separate guidance document. The 

approach of the staff is to develop concurrently with the rule 

proposal a guidance document which assists qualified facility 

implementation of changes under the proposed §116.116(b) (2). The 

guidance document will group compounds based on similar chemical 

and effects characteristics. 

In the definition of actual emission rate, facilities are allowed 

to consider any consecutive 12-month period within the past ten 

years before the change. This definition establishes a rolling 

window. The ten-year period is constrained by the requirement 

that the window for considering actual emissions must begin no 

earlier than January 1, 1990. The purpose of this restriction is 

to ensure the ability of the permitting system to protect public 

health in the early years of the new exemptions. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Proposed §116.116, concerning Amendments and Alterations, 

Page 3 

establishes the criteria by which qualified facilities that make 

changes must apply with the executive director for a permit 

amendment. The proposed section also directs qualified 

facilities to make application for permit amendments on the PI-1 

form and requires that any existing level of control at a 

qualified facility not be lessened by actions allowed under this 

section. 

Proposed §116.117, concerning Notification for Changes at 

Qualified Facilities, provides the criteria for notification to 

the TNRCC for various changes at qualified facilities. In 

addition, the section establishes the requirement for record 

keeping of all changes made under the proposed §116.116(b) (2) at 

the facility. This section also requires that all changes be 

incorporated into the facility's permit upon amendment or renewal 

and provides for the continual applicability of any appropriate 

federal requirement. The staff requests specific comments on the 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 4 

August 1 deadline for submission of annual reports of changes 

that did not require notification. 

Proposed §116.118, concerning Qualified Facilities, provides the 

cases in which prior involvement of the TNRCC is necessary for 

a facility to be considered qualified. The staff also requests 

specific comments and assistance on the concept of adjusting a 

grandfathered facility's allowable emission rate once current 

BACT is applied to become a qualified facility. It is expected 

that the maximum potential emission rate with BACT will be higher 

than the facility's actual emission rate with BACT applied. The 

difference between the two emission rates should allow for the 

facility to exercise the flexibility established by this rule. 

Proposed §116.119, concerning Demonstrating Compliance with 

Allowable Emission Rate, provides the opportunity for the 

executive director to require any facility to submit information 

demonstrating compliance with allowable emission rates. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 5 

Proposed §116.112, concerning Distance Limitations, relocates the 

exact rule language in the repealed §116.117 to this new section. 

As mentioned previously, the staff of the TNRCC will develop 

guidance for the implementation of changes allowed under 

§116.116(b) (2). The staff will have two guidance documents for 

this purpose. A BACT guidance document will be provided in order 

for facilities to become qualified for treatment under 

§116.116(b) (2). The guidance document will be comprehensive 

enough to establish BACT for many types of facilities. However, 

in some instances, a case-by-case review will be required for 

control technologies not in the guidance document. It is 

intended that this guidance document also be flexible for quick 

revision as different technologies demonstrate equivalency to 

established technologies. 

The staff will develop a TNRCC guidance document covering 

modifications to existing facilities. This guidance will assist 

in the implementation aspects of chemical speciation, trading of 
I 

-~~ 

Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

allowable and actual emission levels, and notification. On 

chemical speciation, the staff will determine groupings for 

Page 6 

chemical compounds that have similar characteristics and effects. 

These groupings are intended to allow qualified facilities to 

make changes which result in the emission of a different, yet 

relatively equivalent compound without obtaining a permit 

amendment. 

Along with the grouping, the staff will establish a deminimis 

level under which emission point trading of compounds within a 

grouping may occur without notification of the TNRCC. Trading of 

compounds between groupings will be permissible under certain 

ratios based upon impacts. These determinations will be a part 

of the guidance document. 

Notification of the TNRCC is required under specific 

circumstances in this proposal. The guidance document will 

further clarify the required information to be included in the 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

various notifications as well as establish the form to be 

submitted to the TNRCC. 

Page 7 

While the required reviews by the TNRCC under these rules were 

kept to a minimum, nothing should prevent a facility from 

voluntarily requesting additional guidance or early review from 

the TNRCC. The TNRCC is willing to assist companies in making 

the appropriate determinations so that facilities may properly 

use the flexibility afforded by Senate Bill 1126. 

Steve Minick, Strategic Planning and Appropriations Division, has 

determined that for the first five-year period the sections are 

in effect there will be no major fiscal implications for state or 

local government as a result of enforcing or administering the 

sections. 

Mr. Minick also has determined that for each year of the first 

five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be decreases in 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 8 

the emissions from grandfathered facilities which are required to 

install Best Available Control Technology to use these sections. 

There will be negligible costs to the regulated community and no 

new economic costs to persons who are required to comply with the 

sections as proposed. 

A public hearing on the proposal will be held November 6, 1995, 

at 2:00 p.m. in Room 131E of TNRCC Building C, located at 12100 

North IH-35, Park 35 Technology Center, Austin. The hearing is 

structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when 

called upon in order of registration. Open discussion within the 

audience will not occur during the hearing; however, a TNRCC 

staff member will be available to discuss the proposal 30 minutes 

prior to the hearing and will answer questions before and after 

the hearing. 

Written comments not presented at the hearing may be submitted to 

the TNRCC central office in Austin. The deadline for submission 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 9 

of written comments will be 30 days after the date of publication 

of this proposal in the Texas Register. Material received by 

the TNRCC Office of Policy and Regulatory Development by 4:00 

p.m. on that date will be considered by the commission prior to 

any final action on the proposal. Please mail comments to 

Lisa Martin, Office of Policy and Regulatory Development, MC 205, 

P.O. Box 13087, Austin, Texas 78711-3087, and reference Rules 

Tracking Log #95144-116-AI. Please fax comments to (512) 239-

5687. Copies of the revision are available at the central office 

of the TNRCC, Air Policy and Regulations Division, located at 

12118 North IH-35, Park 35 Technology Center, Building E, Austin, 

and at all TNRCC regional offices. For further information, 

please contact Thomas Ortiz at (512) 239-1054. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the hearing 

should contact the agency at (512) 239-4900. Requests should 

be made as far in advance as possible. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 10 

The amendment is proposed under the Texas Health and Safety Code, 

Texas Clean Air Act (TCAA), §382.017, which provides the TNRCC 

with the authority to adopt rules consistent with the policy and 

purposes of the TCAA. 

The proposed amendment implements the Texas Health and Safety 

Code, §382.017. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

SUBCHAPTER A DEFINITIONS 

§116.10. General Definitions. 

Page 11 

Unless specifically defined in the Texas Clean Air Act 

(TCAA) or in the rules of the Texas Natural Resource Conservation 

Commission (TNRCC or commission), the terms used by the 

commission have the meanings commonly ascribed to them in the 

field of air pollution control. In addition to the terms which 

are defined by the TCAA, and in §101.1 of this title (relating to 

General Rules), the following words and terms, when used in this 

chapter, shall have the following meanings, unless the context 

clearly indicates otherwise. 

Actual emission rate - The highest annual rate (consecutive 

12-month period) of emissions from a QUalified facility achieved 

within a 120-month period prior to the change. The period shall 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 12 

start no earlier than January 1. 1990. This rate cannot exceed 

any federal or state emissions limitation. 

Allowable emission rate - An authorized rate of emissions 

from a facility that emits air contaminants. This rate cannot 

exceed the allowable emission rate specified by an applicable 

state or federal regulation other than this chapter. 

(A) An allowable emission rate for a permitted 

facility is an enforceable emission limit established in a permit 

on a maximum allowable emissions rate table plus any allowable 

emissions authorized by a standard exemption. 

(B) An allowable emission rate for an exempted 

facility is the least of the emission rate allowed in §116.211 

of this title {relating to Standard Exemption List) . a rate 

specified in the applicable exemption. or a federally enforceable 

rate established on a PI-8. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

(C) An allowable emission rate for a qualified 

grandfathered facility is an emission rate at the maximum 

capacity according to the physical or operational design. 

(p) An allowable emission rate for a facility 

Page 13 

authorized by standard permit. other than §116.617(2) of this 

title (relating to Standard Permits List) , is the maximum 

emission rate represented in the registration for the standard 

permit. 

(E) An allowable emission rate for a qualified 

facility voluntarily installing controls shall be the maximum 

allowable emission rate prior to the installation of the 

controls. 

BACT - Best Available Control Technology with consideration 

given to the technical practicability and the economic 

reasonableness of reducing or eliminating emissions from the 

facility. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Maximum allowable emissions rate table - A table 

Page 14 

establishing the allowable emission rates included with a permit. 

Modification of existing facility - Any physical change 

in. or change in the method of operation of a facility in a 

manner that increases the amount of any air contaminant emitted 

by the facility into the atmosphere or that results in the 

emission of any air contaminant not previously emitted. The term 

does not include: 

(A) insignificant increases in the amount of any air 

contaminant emitted that is authorized by one or more board 

exemptions; 

(B) insignificant increases at a permitted facility; 

(C) maintenance or replacement of equipment components 

that do not increase or tend to increase the amount or change the 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

characteristics of the air contaminants emitted into the 

atmosphere; 

Page 15 

(D) an increase in the annual hours of operation 

unless the existing facility has received a preconstruction 

permit or has been exempted. pursuant to §116.211 of this title. 

from preconstruction permit requirements; 

(E) a physical change in. or change in the method 

of operation of. a facility that does not result in a net 

increase in allowable emissions of any air contaminant and that 

does not result in the emissions of any air contaminant not 

previously emitted. provided that the facility; 

(i) has received a preconstruction permit or 

permit amendment or has been exempted pursuant to §116.211 of 

this title from preconstruction permit requirements no earlier 

than 120 months before the change will occur; or 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 16 

(ii) uses. regardless of whether the facility has 

received a permit. an air pollution control method that is at 

least as effective as BACT. considering technical practicability 

and economic reasonableness. that the board required or would 

have required for a facility of the same class or type as a 

condition or issuing a permit or permit amendment 120 months 

before the change will occur; 

(F) a physical change in. or change in the method of 

operation of. a facility where the change is within the scope of 

a flexible permit; or 

(G) a change in the method of operation of a natural 

gas processing. treating. or compression facility connected to or 

part of a natural gas gathering or transmission pipeline which 

does not result in an annual emission rate of a pollutant in 

excess of the volume emitted at the maximum designed capacity. 

provided that the facility is one for which: 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 17 

(i) construction or operation started on or 

before September 1. 1971. and at which either no modification has 

occurred after September 1. 1971. or at which modifications have 

occurred only pursuant to standard exemptions; or 

(ii) construction started after September 1. 

1971. and before March 1. 1972. and which registered in 

accordance with the TCAA. §382.060. as that section existed prior 

to September 1. 1991. 

Net increase in allowable emissions - For a gualified 

facility. an increase in allowable emissions considering any air 

pollution control method applied to the facility. any decrease in 

allowable emissions from other gualified facilities at the same 

TNRCC air QUality account number that have received a permit or 

permit amendment within 120 months. and any decrease in actual 

emissions from other QUalified facilities at the same TNRCC 

account number. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 18 

New source - Any stationary source, the construction or 

modification of which is commenced after August 30, 1971; or. for 

those sources that had contracts to start before August 30. 1971, 

but did not start actual construction until after March 1. 1972 

[March 5, 1972]. 

Non-qualified facility - Any facility that is not a 

qualified facility. 

Qualified facility - An existing facility that has received 

a permit or has been exempted pursuant to Subchapter C of this 

chapter (relating to Permit Exemptions) no earlier than 120 

months prior to a change in that facility; or. that uses an air 

pollution control method that is at least as effective as BACT 

that would have been required for the same type of facility that 

received a permit no earlier than 120 months prior to a physical 

or operation change to the facility. If a facility adds controls 

to become a qualified facility. those controls must meet current 

BACT requirements. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 19 

Relatively equiyalent compound - A compound that is in the 

same grouping due to similar characteristics and effects as 

specified by the executive director of the TNRCC. 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's authority to 

adopt. 

Issued in Austin, Texas, on September 27, 1995. 
Texas Matural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 20 

The repeal is proposed under the Texas Health and Safety Code, 

the Texas Clean Air Act (TCAA), §382.017, which provides the 

TNRCC with the authority to adopt rules consistent with the 

policy and purposes of the TCAA. 

The repeal implements the Texas Health and Safety Code, §382.017. 

SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

PERMIT APPLICATION 

§116.117. Distance Limitations. 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency•s authority to 

adopt. 

Issued in Austin, Texas, on September 27, 1995. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 21 

The amendments and new sections are proposed under the Texas 

Health and Safety Code (Vernon 1992), the Texas Clean Air Act 

(TCAA), §382.017, which provides the TNRCC with the authority to 

adopt rules consistent with the policy and purposes of the TCAA. 

The proposed amendments and new sections implement the Health and 

Safety Code, §382.017. 

SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

PERMIT APPLICATION 

§116.112. Distance Limitations. 

(a) Lead smelters. Pursuant to the Texas Clean Air Act, 

§382.053, a permit shall not be issued for a new lead smelting 

plant at a site located within 3,000 feet of the residence of any 

individual and at which lead smelting operations have not been 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 22 

conducted before August 31, 1987. This subsection does not apply 

to a modification of a lead smelting plant in operation on or 

before August 31, 1987, to a new lead smelting plant or 

modification of a plant with the capacity to produce not more 

than 200 pounds of lead per hour, or to a lead smelting plant 

that was located more than 3,000 feet from the nearest residence 

when the plant began operations. 

(b) Hazardous waste permits. Permits for hazardous waste 

management facilities shall not be issued if the facility is to 

be located in the vicinity of specified public access areas under 

the following circumstances. 

(1) No permit shall be issued for a new hazardous 

waste landfill or land treatment facility or an areal expansion 

of an existing facility if the boundary of the facility or 

expansion is to be located within 1,000 feet of an established 

residence, church, school, day care center, surface water body 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 23 

used for a public drinking water supply, or dedicated public 

park. 

(2) No permit shall be issued for a new commercial 

hazardous waste management facility or the subsequent areal 

expansion of such a facility or unit of that facility if the 

boundary of the unit is to be located within~ mile (2,640 feet) 

of an established residence, church, school, day care center, 

surface water body used for a public drinking water supply, or 

dedicated public park. 

(3) For a subsequent areal expansion of a new 

commercial hazardous waste management facility that is required 

to comply with paragraph (2) of this subsection, distances 

shall be measured from a residence, church, school, day care 

center, surface water body used for a public drinking water 

supply, or dedicated public park only if such structure, water 

supply, or park was in place at the time the distance was 

certified for the original permit. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 24 

(4) No permit shall be issued for a new commercial 

hazardous waste management facility that is proposed to be 

located within~ mile (2,640 feet) from an established residence, 

church, school, day care center, surface water body used for 

a public drinking water supply, or dedicated public park, at any 

distance beyond the facility's property boundaries, unless the 

applicant demonstrates that the facility will be operated so as 

to safeguard public health and welfare and protect physical 

property and the environment. 

{5) The measurement of distances required by 

paragraphs (1) - (4) of this subsection shall be taken toward an 

established residence, church, school, day care center, surface 

water body used for a public drinking water supply, or dedicated 

public park that is in use when the permit application is filed 

with the Texas Natural Resource Conservation Commission. The 

restrictions imposed by paragraphs (1) - (4) of this subsection 

do not apply to a residence, church, school, day care center, 

surface water body used for a public drinking water supply, a 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

dedicated public park located within the boundaries of a 

Page 25 

commercial hazardous waste management facility, or property owned 

by the permit applicant. 

(6) The measurement of distances required by 

paragraphs (1) - (4) of this subsection shall be taken from a 

perimeter around the proposed hazardous waste management unit. 

The perimeter shall be no more than 75 feet from the edge of the 

proposed hazardous waste management unit. 

§116.116. Amendments and Alterations. 

(a) Representations and conditions [Permit amendments] . 

All representations with regard to construction plans and 

operation procedures in an application for a permit, special 

permit, or special exemption, as well as any general and special 

conditions attached to the permit. special permit. or special 

exemption itself, become conditions upon which the subsequent 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 26 

permit, special permit, or special exemption are issued. [It 

shall be unlawful for any person to vary from such representation 

or permit condition if the change will cause a change in the 

method of control of emissions, the character of the emissions, 

or will result in an increase in the discharge of the various 

emissions, unless application is made to the executive director 

to amend the permit or special permit in that regard and such 

amendment is approved by the executive director or the Texas 

Natural Resource Conservation Commission. Applications to amend 

a permit or special permit shall be submitted with a completed 

Form PI-1 and are subject to the requirements of §116.111 of this 

title (relating to General Application).] 

(b) Permit amendments. 

(1) For non-Qualified facilities. it shall be unlawful 

for any person to vary from any representation or permit 

condition if the change will cause a change in the method of 

control of emissions. the character of the emissions. or will 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 27 

result in an increase in the discharge of the various emissions. 

unless application is made to the executive director to amend the 

permit or special permit in that regard and such amendment is 

approved by the executive director or the Texas Natural Resource 

Conservation Commission (TNRCC) . ·Applications to amend a permit 

or special permit shall be submitted with a completed Form PI-1 

and are subject to the reguirements of §116.111 of this title 

(relating to General Application) . 

(2) For gualified facilities. it shall be unlawful for 

any person to vary from any representation or permit condition if 

the change will result in the emission of any substance other 

than a relatively eguivalent compound or result in a net increase 

in the allowable emissions. unless application is made to the 

executive director to amend the permit or special permit in that 

regard and such amendment is approved by the executive director 

or the TNRCC. Applications to amend a permit or special permit 

shall be submitted with a completed Form PI 1 and are subject to 
Texas Natural Resource Page 28 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

the requirements of §116.111 of this title. The existing level 

of control may not be lessened for any qualified facility. 

lQl[(b)] Permit alterations. 

(1) A permit alteration is: 

(A) any variation from a representation in a 

permit application that does not involve an increase in emission 

rates or a change in the character or method of control of 

emissions; or 

(B) [for] any change in a general or special 

condition of a permit that does not involve an increase in 

emission rates or a change in the character or method of control 

of emissions~ [.] 

(C) a decrease in allowable emissions. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 29 

(2) All requests for permit alterations which may 

result in an increase in off-property concentrations of air 

contaminants, involve a change in permit conditions, or affect 

facility or control equipment performance must receive prior 

approval by the executive director. The executive director shall 

be notified in writing of all other permit alterations. Any 

request for permit alteration shall include information 

sufficient to demonstrate that the change does not interfere with 

the owner or operator's previous demonstrations of compliance 

with the requirements of §116.111(3) of this title. 

(3) Permit alterations shall not be subject to the 

requirements of Best Available Control Technology identified in 

§116.111(3) of this title. 

lQl[(c)] Standard exemption in lieu of permit amendment 

or alteration. Notwithstanding subsections (a)~ [or] (b), or (c) 

of this section, no permit amendment or alteration is required 

if the changes to the permitted facility qualify for an exemption 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

under Subchapter C of this chapter (relating to Permit 

Page 30 

Exemptions) unless prohibited by permit condition as provided in 

§116.115 of this title (relating to Special Conditions). All 

such exempted changes to a permitted facility shall be 

incorporated into that facility's permit at such time as the 

permit is amended or renewed. 

§116.117. Notification for Changes at Qualified facilities. 

(a) All qualified facilities shall maintain documentation 

at the plant site supporting that physical or operational changes 

are excluded from permitting requirements per §116.116(b) (2) 

of this title (relating to Amendments and Alterations) . This 

documentation shall include quantification of all emission 

increases and decreases associated with the physical or 

operational change, a description of the physical or operational 

change, a description of any equipment being installed, 

sufficient information as may be necessary to demonstrate that 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 31 

the project will comply with the Federal Clean Air Act, Title 1, 

Parts C and D, and be made available to representatives·of the 

Texas Natural Resource Conservation Commission (TNRCC) upon 

request. 

(b) No notification is required at the time a change is 

made for qualified facilities that meet the following criteria. 

An annual report, including information described in subsection 

(a) of this section, of all changes made to a facility shall be 

submitted to the appropriate TNRCC regional office by August 1st 

of each year: 

(1) Best Available Control Technology for the facility 

has been established by the executive director of the TNRCC; 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 32 

(2) the facility has an established allowable emission 

rate on an accurate maximum allowable emission rate table 

(MAERT), PI-8 form or PI-E form. A MAERT shall be considered to 

be accurate if all air contaminants affected by the change have 

been represented, all emission points have been identified, and 

emissions have been calculated according to good engineering 

practices; and 

(3) the change involves no trading of allowable or 

actual emissions between facilities. 

(c) Pre-change notification on a PI-E form shall be 

submitted to the TNRCC by certified mail prior to the physical 

or operational change. The physical or operational change may be 

made after receipt of written notification from the TNRCC that 

there are no objections, or 45 days after receipt by the TNRCC of 

the registration for the change, whichever occurs first. This 

prior notification shall be required if the change involves a 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 33 

trade of allowable or actual emissions above a de minimis level 

established by the executive director of the TNRCC. 

(d) Post-change notification on a PI-E form within 30 days 

of the change is required for all trades between facilities below 

the de minimis level established by the executive director of the 

TNRCC. 

(e) All such changes to a permitted facility shall be 

incorporated into that facility•s permit at such time as the 

permit is amended or renewed. 

(f) Nothing in this section shall limit the applicability 

of any federal requirement. 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

§116.118. Qualified Facilities. 

Page 34 

(a) In order to establish that the facility is qualified, 

pre-change notification on a PI-E form shall be submitted to the 

Texas Natural Resource Conservation Commission (TNRCC) by 

certified mail prior to the physical or operational change in 

the following cases: 

(1) Best Available Control Technology (BACT) for the 

facility has not been established by the executive director of 

the TNRCC; 

(2) the facility does not have an allowable emission 

rate or the allowable emission rate is inaccurate. 

(b) The physical or operational change may be made after 

receipt of written notification from the TNRCC that there are no 

objections, or 45 days after receipt by the TNRCC of the 

registration for the change, whichever occurs first. This 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 35 

notification may be submitted at the same time as a pre-change 

notification required under §116.117(c) of this title (relating 

to Notification for Changes at Qualified Facilities) or at any 

other time prior to making a physical or operational change 

to the facility. 

(c) If installing controls to become a qualified facility, 

the facility must install BACT and the allowable emission rate 

for the facility shall be the maximum potential emission rate 

after the installation of controls. If otherwise required, 

authorization under this chapter shall be obtained prior to 

installation of these controls. 

§116.119. Demonstrating Compliance with Allowable Emission Rate. 

The owner or operator of any facility may be required to 

submit information demonstrating compliance with allowable 

emission rates upon request of the Texas Natural Resource 
Texas Natural Resource 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

Page 36 

Conservation Commission (TNRCC) . The method of demonstrating 

compliance shall be as required by this section or as otherwise 

directed by the TNRCC: 

(1) the method specified in a permit covering that 

facility; 

(2) continuous emissions monitors; 

(3) parametric/predictive emissions monitors; 

(4) s~ack testing supported by engineering calculation 

based on measured process variables; 

(5) emissions related recordkeeping. 
Texas Natural Resource Page 37 

Conservation Commission 

Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log Number 95144-116-AI 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's authority to 

adopt. 

Issued in Austin, Texas, on September 27, 1995. 
WRITTEN AND 

ORAL TESTIMONY
Reference Number 

W-1 

W-2 

W-3 

W-4 

W-5 

W-6 

W-7 

W-8 

W-9 

W-10 

W-11 

W-12 

W-13 

W-14 

W-15 

W-16 

W-17 

INDEX OF WRITTEN TESTIMONY 

Submitted By 

D. Troy Vickers, Amoco Corporation 

Keith A. Courtney, Brown McCarroll & Oaks Hartline 

Jon K. Fisher, Texas Chemical Council 

Gene Lipnicky, City of Dallas 

Dael Baughman, Eastman Chemical Company 

Janet Greenberg, EC-Applied, Inc. 

Marc N. Phillips, Enron Operations Corp. 

Jole C. Luehrs, U.S. Environmental Protection Agency 

Neil R. Latimer, Exxon Company, U.S.A. 

Brandt Mannchen, GRASP 

B.C. Carmine, Houston Lighting & Power 

Dan F. Hunter, Phillips Petroleum Company 

Rob Looney, Texas Mid-Continent Oil & Gas 

Richard L. White, Texas Utilities Services, Inc. 

John Tuttle 

R.A. Wozniak, Union Carbide Corporation 

Kathleen A. Young, Central and South West Services, Inc. 
713 366 7556 1 

NOV 09 '95 03:43PM APC EHS CPT&S),HOU 

D. Troy VICkers 

Deputy Director 

November 9, 1995 

via FAX 512/239-5687 

Lisa Martin 

Office of Policy and Regulatory Development 

Texas Natural Resource Conservar'·on Commission 

Mail Code 202 

PO Box 13087 

Austin, Texas 78711-3087 

Dear Ms. Martin: 

(\ 

v. 

Amoco Corporation 

EH&S Regulatory Services 

580 Westlake Park Boulevard 

Houston, Texas 77079-2696 

713-366-7688 

Amoco Corporation on behalf of i~s operating facilities in Texas appreciates the 

opportunity to comment on a..mendfents to Regulation VI concerning Control of Air 

Pollution by Pennits for New Colon or Modification pursuant to Senate Billll26. 

Amoco participated in the prepara~ion of comments being submitted by the Texas 

Chemical CoWlcil (fCC) and the Texas MidContinent Oil & Gas Association (TMOGA). 

We support those comments. I 

In particular, we wish to express o~ support for defining allowable emissions for 

grandfathered. facilities wanting tofbecome qualified facilities. Industry has suggested a 

definition as follows: the maxim annual emissions rate after the implementation of 

any air pollution control methods become a qualified facility plus 10% of the 

maximum annual emissions rate pJiior to the implementation of such control methods. 

We believe this approach is reasonable; it will provide significant reductions in both 

actu8.1 and allowable emissions wh~le providing flexibility to the grandfathered facility to 

justify the implementation of quali:fying controls. 

We also strong! y support the ineo~oration of the "relatively equivalent compound" 

concept. We applaud TNRCC's innovative thinking in this area and look forward to 

continuing to work with the agenl as this concept is implemented. 

We also encourage TNRCC toke the notification for changes at qualified facilities as 

simple as possible. Amoco supports the notification process that has been outlined ·in the 

TMOGNTCC coinments. In addi 'on, we believe that the industry's comments in 

1:\COMMON\MOOU\MOD.DOC 
I NOV 09 '95 03:43PM APC EHS (PT&S),HOU 

Lisa Martin 

November 9, 10095 

Page2 

P.2/2 

116.117( e) which allows TNRCC reissue special permit conditions will provide the 

necessary docwnentation to mainJ' consistency/accuracy in the TNRCC permit 

program. 

Finally, we would like to express o appreciation to the lNRCC staff for working with 

the regulated community in an open forum to implement Senate Billll26. These 

discussions provided for a bett~r un erstanding of concerns and issues. We encourage 

TNRCC to continue this type of pro ess in future rulemakings. 

If you have any questions concemin our comments, please contact Susan Moore at 

(713) 366-5018. 

D. Troy Vickers 

SSM!bl 

i·\COMMON\MOO"RFIMOD.DOC 
BROWN McCARROLL & OAKS HARTLINE 8 

Ms. Lisa Martin 

Attorneys 

A Registered Limited Lialnlity Partnmhip Including Professional Corporations 

1400 Franklin Plaza 

Ill Congress Avenue 

Austin, Texas 78701-4043 

{512) 4 72-5456 

Fax (512) 479-1101 

November 9, 1995 

Texas Natural Resource Conservation Commission 

Office of Policy and Regulatory Development 

Mail Code 202 

P.O. Box 13087 

Austin, Texas 78711-3087 

Re: Rules Tracking Log No. 95144-116-Al; 

Writer's Direct Number: 

(512) 479-9789 

Comments on Proposed Revisions to Chapter 116 to Implement S.B. 1126 

Dear Ms. Martin: 

On behalf of interested clients, we have enclosed a document containing our suggested 

revisions, and the bases therefor, to the proposed revisions to Chapter 116 of the Texas Natural 

Resource Conservation Commission ("TNRCC") air quality rules to implement S.B. 1126, which 

were published in the October 10, 1995 Texas Register. For your information, all language we 

suggest be added is underlined, while all language we suggest be deleted is indicated by 

strikeover. 

Based on our understanding of the TNRCC' s desire to limit the rev1s1ons in this 

rulemaking to those absolutely necessary to implement S.B. 1126, we limited our comments 

accordingly. However, we believe that, because of this limitation on the scope of this 

rulemaking, upon adoption of these revisions, the undesignated head "Permit Applications" under 

Subchapter B of Chapter 116 will constitute a patchwork of provisions that will be confusing to 

those members of the regulated community that do not have historical knowledge regarding the 

development, and agency interpretation and application of these provisions. For example, 

although current § 116.116(b )( 1) is in the rules to describe when a change constitutes a 

"modification of an existing facility" and what must be done upon such change, the language used 

in that provision is not consistent with the statutory definition of "modification of an existing 

facility" and, as a result, often raises interpretational issues when a company desires to make a 

change at an existing facility. Accordingly, we request and recommend that in the preamble to 

the adopted rules, the TNRCC commit to reopen this undesignated head in Subchapter B of 

Chapter 116 for whatever reorganization and redrafting is necessary to render it less ambiguous, 

more logical, and internally consistent. 

Dallas Office: 300 Crescent Court· Suire 1400 ·Dallas, Texas 75201-6929 · (214) 999-6100 • Fax (214) 999-6170 

Houston Office: 1300 Wortham Tower· 2727 Allen Parlway ·Houston, Texas 77019-2100 · (713) 529-3110 ·Fax (713) 525-6295 

Long-iew Office: ,220 Energy Centre· I 127 judson Road· P.O. Box }999 • Longview, Texas 75606-3999 • (903) 236-9800 • Fax (903) 236-8787 
Ms. Lisa Martin 

Page 2 

November 9, 1995 

Thank you very much for the opportunity to present our comments on these proposed 

revisions on behalf of interested clients. If you have any questions, please call. 

KAC/dr 

Enclosure 

L:\DOCS\PUBLICICOURTNEK\WORK\243432.1 

Sincerely, 

'UiAa.~ 

Keith A. Courtney _ 
COMMENTS TO PROPOSED REVISIONS TO CHAPTER 116 

TO IMPLEMENT S.B. 1126 

PROPOSED SECTION COMMENTS 

§ 116.10 - "Actual emission Suggested revisions: Revise the definition of "Actual 

rate" emission rate" to read as follows: 

Actual emission~--ffite - For purposes of the determination 

under § 116.116(e)(l) of this title, +!he highest annual rate 

of emissions of an air contaminant actually achieved from a 

qualified facility aehieved within athe 120-month period 

prior to the change, with the 120-month period shell 

starting no earlier than January 1, 1990. In determining the 

annual actual emissions. any consecutive 12-month period 

during the 120-month period may be used. This rate cannot 

exceed any applicable federal or state emissions limitation. 

Basis: The suggested deletion of the word "rate" in the 

term "actual emissions rate" is being suggested to avoid 

potential confusion and ambiguity since S.B. 1126 and the 

proposed rules to implement it use the term "actual 

emissions", not "actual emissions rate". 

Section 116.116( e)( 1) is a new rule section we are 

recommending be added that will specify the procedure for 

determining whether the flexibility provided by S.B. 1126 

is available. 

The suggested deletion of the word "annual" is to confirm 

that actual emissions can be short-term (i.e., in pounds per 

hour), as well as annual. The term "actual emissions" will 

be used to make determinations under our proposed 

§ 116.116( e )(1) [i.e., used in intraplant trading, as defined 

in our proposed § 116.116( e)( 6)]. In conducting intraplant 

trading, the time period for actual emissions will have to 

match that for the allowable emissions for which an 

intraplant trade is needed at the qualified facility where the 

change will occur. For example, if the qualified facility has 

allowable emissions stated in terms of an annual emissions 

rate, and an intraplant trade of annual emissions is needed, 
§ 116.10 - "Allowable 

emission rate" 

it will be necessary to determine the actual annual 

emissions rate for the other facility(ies) involved in the 

trade. 

The other suggested changes to this definition are for 

clarification purposes. 

Suggested revisions: Revise the definition of "Allowable 

emission rate" to read as follows: 

Allowable emission~--mte- ARThe authorized rate of 

emissions of an air contaminant from a facility that emits 

air eoRtamiRaB-tsas determined in accordance with this 

section. This rate cannot exceed the allowable emissioRs 

rate specified by any applicable state or federal emissions 

limitationregula-tiofl other than this chapter. 

(A) Permitted facility - i\n allovr-able emissiofl: rate for a 

permitted facility is an eRforeeableFor a facility with 

a preconstruction permit under this chapter. the 

allowable emissions shall be the emission limit 

established in athe permit on a mwtimum allmvable 

emissiofls rate tableMAERT, plus any allowable 

emissions authorized by a standard exemption. 

(B) Standard exemption facility - P.dl allowable emissioR 

ra-te for an eJ£empted faeilityFor a facility operating 

under a standard exemption. the allowable emissions 

shall beis the least of the emission~ rate allowed in 

§ 116.211 of this title (relating to Standard 

Exemption List), athe emissions rate specified in the 

applicable exemption, or a federally enforceable 

emissions rate established on a PI-8 form. 

2 

,, .. -· 
... '·. ·~ . ·.· ... 

. . . , 

(C) Grandfathered facility - Aafor a qualified 

grandfathered facility, the allowable emission§-ffit.e 

for a EJ:l:lalifiecl granclfatherecl faeility is aB emissioas 

rate at shall be the maximum capacity according to 

the physical and operational design. 

(D) Standard permit facility - AB allowable emissioa rate 

fEor a facility authorized by standard permit, other 

than § 116.617(2) of this title (relating to Standard 

Permits List), the allowable emissions shall beis the 

maximum emission§ rate represented in the 

registration for the standard permit. 

ill} Special exemption facility -For a facility operating 

under a special exemption. the allowable emissions 

shall be the emissions rate represented in the original 

special exemption request. 

(EE) AftThe allowable emission~ for a qualified 

facility shall not be adjusted by the v=oll:lftt:arily 

iastalliagvoluntary installation of controls shall be 

the maxiffil:lffl allov,rable emissioa rate prior to the 

iastallatioa of the eoatrols. 

Basis: Our basis for suggesting that the term "allowable 

emissions rate" be changed to "allowable emissions" is the 

same as discussed above in our comments for the term 

"actual emissions rate". 

The remainder of our suggested revisions to this definition 

are for clarification and internal consistency purposes. 

3 

' .. ' ~ 
~ .... ' .. ~ ·. '~ 

§ 116.1 0 - "Best Available 

Control Technology" 

§ 116.1 0 - "Grandfathered 

facility" 

§ 116.10- "Maximum 

allowable emissions rate 

table" 

-~-. '.- ' ~ .. _.;_ 

Suggested revisions: Revise the definition of "Best 

Available Control Technology" to read as follows: 

BACT Best Available Control Technology (BACT)- The 

control technology or method that is the best available for 

the reduction in emissions of an air contaminant, Best 

Availaele Control Teelmology with consideration giYen 

teconsidering the technical practicability and the economic 

reasonableness of reducing or eliminating such emissions 

from the facility. 

Basis: The proposed definition is circular because it uses 

the term being defined, "best available control technology", 

within the definition of that term. Our proposed revision 

actually defines the words "best available control 

technology", rather than merely restating them in the 

definition. 

Suggested revisions: Revise the definition of 

"Grandfathered facility" to read as follows: 

Grandfathered facility - A facility for which either 

construction commenced on or before August 30, 1971, or 

construction commenced on or before February 29. 1972. if 

a contract was executed on or before August 30. 1971 for 

construction to commence on or before February 29. 1972. I 

Basis: Although this term is used in the proposed revisions 

to Chapter 116 and is a term of art used frequently by 

TNRCC and the regulated community, it is not currently 

defined in Chapter 116. We believe a definition of this 

term will be helpful to both TNRCC personnel and the 

regulated community. 

Suggested revisions: Revise the definition of "Maximum 

allowable emissions rate table" to read as follows: 

Maximum allowable emissions rate table CMAERT)- A 

table included with a preconstruction permit issued under 

this chapter that containsestaelishing the allowable emission 

rates included with aestablished by the permit for a facility. 

Basis: These changes are for clarification purposes only. 

4 
- . ·.· 

§ 116.10 - "Modification of 

existing facility" 

- , .. ·-~·:., •. 

- ... -... ·. ~ ~ ·. •.: . ~ . . .. . - '.•., . ... ·· .. ' .. · .·-: .. · ... 

Suggested revisions: Revise the definition of 

"Modification of existing facility" to read as follows: 

Modification of existing facility - Any physical change in, 

or change in the method of operation of, a facility ... does 

not include: 

(A) insignificant increases in ... authorized by one or 

more eeaffiTNRCC exemptions; 

(B) 

(C) 

(D) 

(E) a physical change in, or ... does not result in the 

emissions of any air contaminant ... that the 

facility: 

(F) 

(i) 

(ii) uses, regardless of whether the facility has 

received a preconstruction permit or permit 

amendment or has been exempted pursuant to 

§ 116.211 of this title, an air pollution 

control method that is at least as effective as 

the BACT, eoa:sideria:g teelmieal 

praetieaeil~ aBd eeoa:omie reasoa:aelea:ess, 

that the eoardTNRCC required or would 

have required for a facility of the same class 

or type as a condition erof issuing a permit 

or permit amendment 120 months before the 

change will occur; 

5 
-·. .~ .. ~ ~:. . .. 

§ 116.10 - "Net increase in 

allowable emissions" 

§ 116.10- "New source" 

. ·. ·, 

(G) a change in ... annual emission rate of a 

flOllutamany air contaminant in excess of the volume 

. . . is one for which: 

(i) 

(ii) 

Basis: The suggested deletion of the words "considering 

technical practicability and economic reasonableness" in 

paragraph (E)(ii) is being suggested because those words 

are already included in the definition of the term "BACT" 

in these proposed rules. 

The remainder of these changes are either for clarification 

purposes or to ensure that this definition accurately reflects 

the legislative intent of S.B. 1126. 

Suggested revisions: Delete the definition of "Net increase 

in allowable emissions". 

Basis: This definition is not necessary since it is 

incorporated in our proposed § 116.116( e )(1 ). 

Suggested revisions: Revise the definition of "New 

source" to read as follows: 

New sotif'eefacilitv - Any statioaa:ry sotif'eefacilitv for which 

either,..the constructionor modifieatioa of v.thieh is 

commenced after August 30, 1971 t~ or; construction 

. commenced after February 29, 1972, if a contract was 

executed on or before August 30, 1971 for construction to 

commence on or before Februarv 29, 1972for those sotif'ees 

that had eoatraets to start before 1\ugust 30, 1971, hut did 

aot actual eoastruetioa until after Mareh 1, 1972. 

Basis: The suggested change of the word "source" to 

"facility" is being suggested because the term "facility", not 

"source", is used in Chapter 116. The other changes are to 

make this definition consistent with our proposed definition 

of "grandfathered facility". 

6 
.. ·. ~ ._ - : -": . .. ·~ ·. '. 

§ 116.10 - "Non-qualified 

facility" 

§ 116.1 0 - "Qualified 

facility" 

-'- .. ,-.. ,. ·-_- ' . . ~ . . . 

Suggested revisions: Delete the definition of "Nonqualified facility". 

Basis: Because the provisions that apply only to qualified 

facilities are clearly identified in the rules, this term is 

unnecessary. Referring to some facilities as "non-qualified" 

may tend to have adverse connotations that should be 

avoided. 

Suggested revisions: Revise the definition of "Qualified 

facility" to read as follows: 

Qualified facility - An existing facility that satisfies the 

criteria of either subsection CE)(i) or CE)(ii) under the 

definition of "modification of existing facility" in this 

sectionhas reeeiYed a permit or has been e~{e1Hj3ted pursuaRt 

to 8ubehapter C of this ehapter (relating to Permit 

E:Ke1Hj3tions) no earlier than 120 months prior to a ehaage 

in that faeility; or, that uses an air pollution eontrol method 

that is at least as effeetive as BACT that wot1ld hEP1e been 

reql:lired fur the same type of faeility that reeeived a permit 

no earlier than 120 months prior to a physieal or 

operational ehange to the faeility. If a faeility adds eontrols 

to beeome a qt1alified faeility, those eontrols HTUst meet 

el:lffent BACT reqHirements. 

Basis: These revisions are being recommended to avoid 

internal inconsistency and ambiguity in the rules. The 

criteria to be a qualified facility are provided in S.B. 1126 

and restated in the proposed regulatory definition of 

"modification of existing facility". The proposed definition 

of "qualified facility", on the other hand, contains language 

that is significantly different from the language in 

S.B. 1126 and in the regulatory definition of "modification 

of existing facility", and, furthermore, provides no 

additional clarification of the meaning of the term. 

7 

. .. ·:. 
§ 116.10 - "Relatively 

equivalent compound" 

§ 116.10 

§ 116.116 

Suggested revisions: Revise the definition of "Relatively 

equivalent compound" to read as follows: 

Relatively equivalent compound - A compound that f.s....ffi 

the same groupiag d\:le to similar characteristics aad effects 

as speeifiedmay be interchanged with other compounds in a 

manner approved by the executive director of the TNRCC 

based on relative characteristics and effects. 

Basis: The suggested revisions are to make this definition 

consistent with our proposed § 116.116( e )(2). 

Suggested additions: Add the statutory definitions of the 

terms "facility" and "source" from § 382.003 of the Texas 

Clean Air Act. 

Basis: The term "facility" is one of the basic terms in the 

Chapter 116 permitting scheme. The term "source" is used 

in the statutory definition of the term "facility". 

Suggested revisions: Revise the title of § 116.116 to read 

as follows: 

§ 116.116. Ameadmeats a:H:d AlteratioasChanges to 

Facilities 

Basis: This change is to make this title consistent with the 

provisions in § 116.116. 

8 

- . . ;. 
§ 116.116(b) 

§ 116.116(c) 

.. ~. · ... '"' ·:· . . . :_~·~:.·.·.::,:··~ .. ~.'. 

· .. ··.· . .~ ·:' ~ · .. ,· •' .. . - . .- -_.-. ~·.__. · .. : : 

Suggested revisions: Revise § 116.116(b) to read as 

follows: 

(b) Permit amendments. 

( 1) Per fteft ql:lalified faeilities, iti t shall be 

unlawful for any person to vary from any 

representation or permit condition if the 

change will cause a change in the method of 

control of emissions, the character of the 

emissions, or will result in an increase in the 

discharge of the various emissions, unless 

... to General Application). 

(2) Fer ql:lalified faeilities . . . te Gefteral A I" . ) nf!f! Ieatleft . 

Basis: The deletion of proposed § 116.116(b )(2) is due to 

our proposed inclusion of the substantive portions of this 

provision in § 116.116( e). 

Comment: It is our understanding that the addition of 

paragraph (C) to§ 116.116(c)(1) is to clarify that a permit 

alteration may be used to decrease the allowable emissions 

of an air contaminant from a facility for use in an intraplant 

trade under our proposed§ 116.116(e)(1). We recommend 

that the preamble to the adopted rules clarify that a permit 

alteration is merely one means to decrease the allowable 

emissions for use in intraplant trading, and that another 

means is the notification required under our proposed 

§ 116.117(b )(2) or (b )(3). The inclusion of a decrease in 

allowable emissions in the notification under 

§ 116.117(b )(2) or (b )(3) will make the decrease in 

emissions enforceable, because it will become a condition 

to being able to make a change to a qualified facility under 

our proposed § 116.116(e). 

9 
§ 116.116(d) 

. -· .. ·.-.·.· . .-.· ··,.··· .:;_··.-. ·.-· . ,. . ..... ~ .... 

Suggested revisions: Revise § 116.116( d) to read as 

follows: 

(d) Standard exemption in lieu of permit amendment or 

alteration. Notwithstanding any other subsections 

(a), (e), or (e) of this section, no permit amendment 

or alteration is required ... is amended or renewed. 

Basis: These changes are recommended to clarify the 

intent, simplify the language, and make the subsection 

consistent with other changes we are recommending to this 

section. -

10 

· ... ·. •' . 
§ 116.116(e) Suggested revisions: Add a new § 116.116( e) to read as 

follows: 

,UU Changes to Qualified Facilities. Notwithstanding 

any other subsection of this section. a physical or 

operational change may be made to a qualified 

facility if the change does not result in a net 

increase in allowable emissions of any air 

contaminant and does not result in the emissions of 

any air contaminant not previously authorized to be 

emitted. 

ill In determining whether a change to a 

qualified facility results in a net increase in 

allowable emissions or in the emissions of 

any air contaminant not previously authorized 

to be emitted, the effect on emissions of the 

following shall be considered: 

.(Al any air pollution control method 

applied to the qualified facility, 

ill} any decreases in allowable emissions 

from other qualified facilities at the 

same TNRCC air quality account 

number that have received a 

preconstruction permit or permit 

amendment no earlier than 120 

months before the change will occur, 

and 

lQ. any decreases in actual emissions 

from other qualified facilities at the 

same TNRCC air quality account 

number other than qualified facilities 

included in subparagraph (B) of this 

paragraph. 

11 
ill In making the determination under paragraph 

(1) of this subsection, relatively equivalent 

compounds may be interchanged in a manner 

approved by the executive director of 

TNRCC based on relative characteristics and 

effects. 

ill Persons making changes to qualified facilities 

under this subsection shall comply with the 

applicable requirements of § 116.117 of this 

title (relating to Documentation and 

Notification of Changes to Qualified 

Facilities) and § 116.118 of this title (relating 

to Pre-Change Qualification). 

ill As used in this subsection, the term "physical 

and operational changes" does not include: 

ill. construction of a new facility, or 

(ill changes to procedures regarding 

monitoring, determination of 

emissions, and recordkeeping that are 

required by a permit. 

ill If any additional air pollution control 

method(s) is implemented so that a facility 

will be a qualified facility, such additional 

control method(s) shall be at least as 

effective as the BACT required at the time 

the additional control method(s) is 

implemented. The implementation of any 

additional control method(s) shall be subject 

to the requirements of this chapter. 

12 
@ Intraplant trading. For purnoses of this 

subsection and § 116.117 of this title. the 

consideration of decreases in allowable and 

actual emissions from any other qualified 

facility(ies) at a plant site in accordance with 

paragraph ( 1) of this subsection shall be 

referred to as "intraplant trading". The 

decreases in allowable and actual emissions 

shall be based on emission rates for the same 

time periods (e.g., hourly and annual rates) 

as the allowable emissions for the facility at 

which the change will occur and for which 

an intraplant tnide is desired. Actual 

emissions shall be based on data that is 

representative of the emissions actually 

achieved from a facility during the relevant 

time period (e.g., hourly or annual rate). 

Intraplant trading shall establish new 

allowable emissions for the other qualified 

facility(ies) involved in the trading. 

Basis: Our proposed § 116.116( e) consolidates into one 

location in the rules the principal provisions of S.B. 1126 

and implements the legislative intent of S.B. 1126 that 

physical and operational changes that satisfy the criteria 

contained in S.B. 1126 are not subject to the requirements 

to obtain a permit amendment, permit alteration, standard 

exemption, or any other approval. This subsection tracks 

the language and/or legislative intent of S.B. 1126. 

With respect to paragraph (2), which incorporates the 

concept of "relatively equivalent compounds" into the 

determination of whether a change results in a net increase 

in allowable emissions or in the emissions of any new air 

contaminant, we recommend that in the preamble to the 

final rule, the TNRCC state that what constitutes the 

interchange of relatively equivalent compounds "in a 

manner approved by the executive director of the TNRCC" 

will be specified in a TNRCC guidance document. 

The language in paragraph ( 5) is our proposed revised 

version of the language in proposed § 116.118( c). We are 

suggesting this relocation of the language in § 116.118( c) 

because this section specifically deals with changes to 

qualified facilities. 

13 
Paragraph ( 6) is to create and define a term, "intraplant 

trading", to describe the netting of allowable emissions 

under our proposed § 116.116(e)(1). 

The basis for our suggested use of the terminology "air 

contaminant not previously authorized to be emitted" (rather 

than "air contaminant not previously emitted") in 

§ 116.116( e) and ( e )(I) is as follows. Some "non-flexible 

permits" (i.e., permits providing operational flexibility that 

were issued before the flexible permits rules were 

promulgated) include allowable emission rates to authorize 

the emissions of air contaminants that were not be emitted 

upon issuance of the permit, but may be emitted in the 

future. If a change is proposed for a facility covered by 

such a permit before such an air contaminant was actually 

emitted, based on a strict interpretation of the language "air 

contaminant not previously emitted", the change may 

require a permit amendment, even though the permit 

currently authorizes the air contaminant to be emitted. This 

could prevent the holders of "non-flexible permits" from 

being able to use the operational flexibility they obtained 

when the permit was issued. Our suggested inclusion of the 

language "authorized to be" would clarify that a physical or 

operational change that will result in the emissions of any 

air contaminant that is authorized by the inclusion of an 

allowable emission rate for that contaminant in the MAER T 

will not be a modification and, therefore, will not require 

permit amendment, even if the air contaminant has not 

actually been emitted previously. 

14 
§ 116.117 Suggested revisions: Revise § 116.117 to read as follows: 

§ 116.117. Documentation and Notification ferof Changes 

atto Qualified Facilities 

(a) All qaalifieel facilities shall maiFJ:taiR elocumeB:tatioR 

at the plant site sapportiB:g thatPersons making 

physical or operational changes to qualified facilities 

under the provisions of§ 116.116(e) of this title 

(relating to Changes to Qualified Facilities) shall 

maintain documentation at the plant site are 

exclaeleel from permittiB:gdemonstrating that the 

changes satisfy the requirements of that 

subsectionper § 116.116(b)(2) of this title (relatiB:g 

to AmeB:elmeflts and AlteratioB:s). This 

documentation shall include (1) a description of the 

physical or operational change, (2) a description of 

any equipment being installed, (3) qualification of 

the net increase in allowable emissions (including all 

allowable emission§ increases and decreasesl 

assoeiated 'Nith that will result from the physical or 

operational change, a descriptioB: of the physical or 

operatioB:al chaRge, a descriptioB: of any eqaipmeflt 

beiB:g iB:stalled ( 4) sufficient information as may be 

B:eeessary to demonstrate that the project will 

comply with the Federal Clean Air Act Title I, ... 

Parts C and D; ... aB:dThis documentation shall be 

made available to (TNRCC) upon request. 

.(Q). In addition to the documentation requirements under 

subsection (a). persons making physical or 

operational changes to qualified facilities shall 

comply with the following notification requirements: 

15 
ill Annual report. For any physical or 

operational change to a qualified facility for 

which there is no intraplant trading in 

accordance with§ 116.116(e)(l) ofthis title, 

no notification to TNRCC is required prior to 

making the change. Instead, an annual report 

shall be submitted to the appropriate TNRCC 

regional office by August 1 of each year 

which shall include all such changes during 

the immediately preceding annual period 

July 1 through June 30, except such changes 

that are incorporated into the permit for the 

facility by the August 1 due date. The 

annual report shall contain the information 

required by a PI-E form. The due date of 

the annual report and the annual reporting 

period for a TNRCC air quality account may 

be changed with the agreement of the 

TNRCC regional office. 

ill Post-change notification. For any physical or 

operational change to a qualified facility for 

which there is intraplant trading in 

accordance with § 116.116(e)(l), and such 

intraplant trading is below the limits 

approved by the executive director of 

TNRCC. notification of the change shall be 

submitted on a PI-E form to the TNRCC 

office in Austin within 30 days after such 

change occurs. 

ill Pre-change notification. For any physical or 

operational change to a qualified facility for 

which there is intraplant trading under 

§ 116.116(e)(l), and such intraplant trading 

is above the limits approved by the executive 

director of TNRCC, notification of the 

change shall be submitted on a PI-E form to 

the TNRCC office in Austin before the 

change may occur. The change may occur 

after the receipt of written notification from 

TNRCCthat there are no objections. or 45 

days after the notification is received by 

TNRCC, whichever occurs first. 

16 
(b) ~lo aotificatioa is req1:1ireel . . . A1:1g1:1st 1 st of each 

year, 

(1) Best Available Coatrol ... of the TNRCC; 

(2) the facility has . . . gooel eagiaeeriag 

praetiees, ana 

(3) the change iB:YOh'es . . . emissioas betvli!ea 

facilities. 

(e) Pre ehange aotifieatios: ... of the TNRCC. 

(el) Post ehange aotifieatioa ... of the TNRCC. 

(e£) For any qualified facility that has received a 

preconstruction permit. A~ll Stteh-changes that are 

made under § 116.116( e) to a permitteel facility shall 

be incorporated into that faeility'sthe permit at such 

time as the permit is amended or renewed. For such 

changes that involve a special permit condition, 

TNRCC may reissue the special permit condition to 

maintain consistency with changes as documented in 

the notification under subsection (b) of this section. 

(fQ) Nothing in this ... any federal requirements. 

Basis: The changes to proposed § 116.117 are being 

suggested for clarification and organizational purposes. 

17 
§ 116.118 Suggested revisions: Revise § 116.118 to read as follows: 

§ 116.118. Qaalifiecl FaeilitiesPre-Change Qualification 

(a) If either of the following conditions exists. it will be 

necessary Ia orderto establish that tfte£! facility is £! 

qualified facility before a physical or operational 

change may be made under the notification 

procedure of § 116.117 of this title (relating to 

Documentation and Notification of Changes to 

Qualified Facilities), pre change aotifieatioa Oft a PI 

B form shall he su-Bmitted to the TeJtas ·Natural 

Resource ConserYation-Commission (11'1RCC) by 

certified m:ail prior to the physical or operatioaal 

change ia the followiag eases: 

( 1) the facility is a qualified facility on the basis 

of BACT, and the Best Availahle Coatrol 

Technology (BACTj requirement for the 

facility~ has not been previously 

established by the executive director of the 

1NRCC; or 

(2) The facility does not have aa allowable 

emission~ rate established for each air 

contaminant affected by the change in a 

MAERT. PI-8 form, or PI-E form or the 

allowahle em:issioa rate is iaaeeurate. 

(b) The pre-change qualification shall be made by 

submitting a PI-E form to the 1NRCC office in 

Austin. The facility shall be deemed qualified in 

accordance with the PI-E form physical or 

operatioaal change m:ay he macle afterupon receipt 

of written notification from the 1NRCC that there 

are no objections, or 45 days after the PI-E form is 

receivedreceipt by the 1NRCCof the registration for 

the ehaage, whichever occurs first. =Ffti.s 

aotifieatioaThe pre-change qualification may be 

18 
L:\DOCS\PUBLiaCOURTNEK\WORK\243356.1 

submitted at the same time as athe pre-change 

notification required under § 116.117(eQ) of this title 

(relatiH:g to }(otifieatioa for Changes at Qaa-lified 

Faeilities) or at any other time prior to making a 

physical or operational change to thea qualified 

facility. 

(e) If iastalliag eofttrols to beeome a qaa-lified faeility, 

the faeility mast iastall BACT and the allo·uable 

emissioa rate for the faeility shall be the mB*imum 

potefttial emissioa rate after the iastallatioa of 

eoatrols. If otherwise reqaired, aathori~atioa ooder 

this ehapter shall be obtaiaed prior to iastallatioa of 

these eofttrols. 

Basis: The language in proposed § 116.118( c) has been 

moved to our proposed § 116.116(e)(5). All other 

suggested changes to proposed § 116.118 are for 

clarification or organizational purposes only. 

19 
GG 1402 Nueces Street • Austin, Texas 78701-1534 • (512) 477-4465 • Fax (512) 477-5387 

November 8, 1995 

Ms. Lisa Martin 

Texas Natural Resource Conservation Commission 

Office of Policy and Regulatory Development 

Mail Code 202 

P. o. Box 13087 

Austin, Tx 78711-3087 

COMMENTS ON PROPOSED REVISIONS 

TO 30 T.A.C. CHAPTER 116 REGARDING IMPLEMENTATION 

OF SENATE BILL 1126 

Dear Ms. Martin: 

Texas Chemical Council (TCC) appreciates this opportunity to 

comment on the subject rule proposal. TCC concurs with the 

comments submitted by Texas Mid-Continent Oil & Gas Association 

{TMOGA). 

TCC members represent a major component of the manufacturing sector 

in Texas. The chemical industry results in the employment of more 

than 450,000 Texans, with a total annual payroll of more than $15 

billion. The chemical industry has invested more than $40 billion 

in Texas production facilities. The Texas chemical industry 

generates one-quarter of the state's manufacturing value added, and 

accounts for a similar percentage of manufacturing shipments. 

TCC strongly supports the general intent and many of the specific 

provisions of the proposed rules to implement Senate Bill 1126, 

which was enacted by the 1995 Texas Legislature and became 

effective on May 19, 1995. The majority of the comments are 

intended to clarify the regulatory intent and, in some cases, 

correctly implement the legislative intent of Senate Bill 1126. We 

encourage TNRCC to incorporate these recommended changes into the 

adopted rule. 

The clear intent of the legislature in enacting Senate Bill 1126 

was to provide much greater operating flexibility to certain 

facilities. Specifically, facilities that satisfy the qualifying 

criteria of either a fairly recent air permit or the use of fairly 

current air pollution control methods would be allowed to make 

physical and operational changes without any requirement to obtain 

CQ 

PRINTED ON RECYCLED PAPER '6~ 
a permit or other approval from TNRCC. These "qualified 

facilities" would be allowed to respond more quickly to changing 

conditions without the delay of the permitting process, while all 

other facilities would remain subject to the current permitting 

requirements. In addition to the benefits to the owners and 

operators of these facilities, this flexibility would provide an 

incentive for persons to voluntarily upgrade the control methods on 

older facilities and would allow the TNRCC to more effectively use 

its resources. We strongly encourage TNRCC to keep this 

legislative intent in mind as it develops the adopted rule. 

We wish to express our appreciation to the TNRCC staff who have 

worked with the regulated community in developing these proposed 

rules." This process has allowed an open forum to address the 

details in implementing the statute. We feel that the cooperative 

attitude exhibited by the staff in understanding our concerns, and 

what we hope was our cooperative attitude in understanding TNRCC's 

concerns, will result in a better rule. We encourage TNRCC to 

continue to utilize this process in future rulemakings. 

Your consideration of the comments submitted by TMOGA is v·ery much 

appreciated. If you have any questions regarding these comments, 

please contact Steve Knis of Dow North America (409/238-7976). 

isher 

Vice President, Research 
I 

CITY OF DALLAS 

November 3, 1995 

Lisa Martin 

Office of ~olicy and Regulatory Development 

Texas Natural Resource Conservation Commission 

MC205 

P.O. Box 13087 

Austin, Texas 78711-3087 

Re: Proposed Regulation,. Log No. 95144-166-AI 

Dear Ms. Martin: 

The City of Dallas Air Pollution Control Section has reviewed the 

proposed revisions to Regulation VI. We believe that the TNRCC is 

attempting to make the best of a very. sensitive situation. 

However, the resulting regulation, as it applies to modifications, 

will be difficult to understand. 

116.10 Allowable Emission Ratei 

(A) The TNRCC has traditionally not included speciated contaminants 

in the ~~RT. This proposed regulation change appears, to reduce 

agency awareness of emission changes on a timely basis. The 

proposed regulation also introduces the term 11 relative equivalent 

compound". 

With this in mind we strongly suggest that speciated pollutants be 

included; at least the most critical compound(s) as they would 

relates to an ESL. 

(C) The wording of this subparagraph is somewhat generalized, and 

is not clear whether it is intended to include control equipment. 

116.10 Modification of Existing Facility 

We have a serious concern with the definition of "Modification of 

Existing Facility". The concern is how the term n insignificant 

increases .. could be interpreted under various sceneries, especially 

as they may apply to toxic emissions. A partial solution would be 

to include allowable emission rates of candidate speciated 

compounds in the MAERT for permitted facilities and apply Standard 

Exemption 116 requirements in other cases when possible. 
Nov. 3 '95 15:28 DALLAS 0 C M C TEL 2149484412 

I 

November 3, 1995 

Lisa Martin 

Page 2 

116.10: Relative Eguivalent Compound; What does the term 

"similar characteristics" signify? There are numerous 

physical and chemical properties for compounds. A few of 

these properties could be very significant to somewhat 

significant depending upon the system process and 

state(s) the compound undergoes. For example, a heavy 

solid compound is processed at ambient temperature with 

a sublimination rate as the only po~ential for emissions, 

whereas in a different process the same compound is 

boiled at a high temperature resulting in a very high 

evaporation rate. Thus extreme care should be exercised 

before any grouping is attempted by the TNRCC. 

116.ll7(b) & {c): It is not absolutely clear that the notification 

referred to in subparagraphs (b) & {c) are one and the same. If 

not, then the term 11 notification 11 should be clarified in 

subparagraph (b) . 

On the other hand, if we are referring to the same notification; 

rule 116.117 could be somewhat improved if_ the order of 

subparagraphs (b) & {c) are reversed. As proposed, subparagraph 

(b) exerr,pts notification requirements before the notification 

requirements are addressed in subparagraph (c} . 

116.117 (b) : The proposed rules are expected to place an additional 

burden of our field investigation activities. Any significant 

facility/operational changes should be available on a timely basis. 

If change notifications are exempted via the use of an annual 

report, then the report should be due at a date earlier than August 

1. We cannot envision any company requiring seven (7) months to 

produce this type of report. A deadline of July 1 offers more than 

ample time to prepare and in all probability could be produced 

earlier. 

116.117 (b) & (c) : The local agencies should also be notified 

because of our enforcement responsibilities. We would not require 

notification by certified mail as specified in subparagraph (c) . Also see 116.118(a). 

116.ll7(d): Include a copy to the local agency. 

116.118 {a): Notifying local agency (see 116.117 (b) & (c)). 

l16.118(b): The two sentences of this rule do not appear to follow 

a chronological sequence, and may be clarified if their order is 

reversed. 

P. 3 
Nov. 3 '95 15:29 

November 3, 1995 

Lisa Martin 

Page 3 

DALLAS 0 C M C TEL 2149484412 

116.118 (b) : (second sentence) If 11 This notification" is not the 

same notification as the notification required under 116.ll?(c) 

(relating to Notification for Changes at Qualified Facilities), 

then what is "this notification" and what is its purpose. Note 

that the term "Changes at Qualified Facilitiesn does not appear in 

rule 116.11?{c). 

Proposed rules 116.117 and 116.118 are most confusing and should be 

clarified. 

116.119 We would request that any information demonstrating 

compliance with allowable emission rates would also be sent to the 

local agency. 

The City of Dallas appreciates the opportunity of addressing the 

proposed regulation, even with the concerns and complexities 

associated with these issues. 

Sincerely, 

~ .p,,.___-; Q. 

Gene Lipili~; -"'V'"~ Air Pollution Control Engineer 

Air Pollution Control Section 

dj 

P. 4 
. NOV 09 '95 03:39PM P.2 

. 

EASTMAN 

Eastman Division 

P.O. Box 7444 

Longview. Texas 75607-7444 

Eastman Chemical Company 

November 9, 1995 • 

CERTIFIED MAIL-RETURN RECEIPT REQVESTED 

Ms. Lisa Martin 

Office of Policy and Regulatory Development 

Texas Natural Resource Conservation Conunission 

Mail Code 202 

P. 0. Box 13087 

Austin, Texas 78711-7087 

Phona: (903) 237·5000 

Re: Proposed Changes to Regulation VI Implementing Senate Bill1126 (Rules Tracking 

Log #95144-116-AI) 

Dear Ms. Martin: 

Texas Eastman Division, Eastman Chemical Company (Eastman) is a manufacturer of chemicals 

and plastics and operates facilities in Harrison and Smith counties. We frequently apply for 

permits for new construction and modification, and have a significant interest in the proposed 

rule changes implementing Senate Billll26, as published in the October 10, 1995, Texas 

Register. 

Eastman believes the incorporation of Senate Bi111126 into Regulation VI will allow many 

insignificant process changes to bypass the resource intensive case-by-case new source review 

process in the future. Hitherto, the review of these insignificant changes has only served to 

divert valuable industry and TNRCC resources from the documentation and review of facility 

modifications with more potential environmental impact. However, we do have several concerns 

with the Texas Register proposal as noted in the following comments. 

Definition of Actual Emission Rate 

1. The January 1, 1990, restriction in determining actual emissions from facilities with no 

permitted allowable emission rate should be deleted. 

Many companies implemented voluntary emission controls between 1986 and 1990. Credit 

· for these voluntary control projects should not be lost when credit can still be taken for 

vohmtary emission reduction projects that other companies delayed until after 1990. It 

would be unfair to penalize those companies who implemented voluntary controls early. 

OStiA STAR WORKBn'E TEXoU lAnMAN DIVISION 
NOV 09 '95 03:40PM 

Ms. Lisa Martin 

Page2 

November 9, 1995 

P.3 

The preamble to the proposed regulatory changes states "The purpose of this restriction is 

to ensure the ability of the permitting system to protect public health in the early years of 

the new exemptions., The inclusion of emission rates occurring between 1986 and 1990 in 

the determination of actual emissions will not affect public health any differently than only 

including emission rates that occurred after 1990. All qualified facilities in either time 

period must be equipped with BACT. Therefore, the only emission reduction credits that 

will be generated are those resulting from the voluntary installation of emission controls 

that are beyond BACT (whether before or after 1990). 

2. Eastman supports the use of a J20·month window for determining actual emissions from 

qualified facilities with no permitted allowable emission rate. 

The flexible 120·month window will allow the owner or operator to use a true 

representation of the maximum emission rate from the facility in determining emission 

'reductions. The 120-month window also incorporates the spirit of the proposed changes to 

the EPA New Source Review and PSD regulations. The proposed changes to the EPA 

permitting programs allow the use of any two years of actual emissions data within the last 

ten years in determining actual emission rates. We encourage the 1NRCC to incorporate 

this type of flexibility in future regulations when applicable. 

Definition of Modification o.fan ExistingFacilizy 

3. Emission increases authorized using standard exemptions are no longer defined as 

modifications. However, this change has not been updated throughout Regulation VI 

Insignificant increases in the amount of any air contaminant emitted that is authorized by 

one or more board exemptions are no longer considered a modification as noted in the 

definition of a modification of existing facility in § 116.10. However, elsewhere in 

Regulation VI, changes authorized using standard exemptions continue to be referred to as 

modifications. For example, § 116.11 O(a) requires pennit or standard exemption 

authorization if a modification occurs, as follows: · 

"Any person who plans to construct any new facility or to engage in the 

modification of any existing facility which may emit air contaminants 

into the air of this state shall obtain a permit. .. or satisfY the conditions 

for exempt facilities ... before any actual work is begun on the facility." 

Also. paragraph (G)(i) of the proposed definition of modification in § 116.10 refers to 

modifications that "have occurred only pursuant to standard exemptions". These and any 

other references to modification in Regulation VI need to be changed to reflect the new 

definition which no longer includes changes authorized using standard exemptions. 
NOV 09 '95 03:40PM 

Ms. Lisa Martin 

Page 3 

November 9, 1995 

P.4 

, 4. The definition of modification should be changed so that an increase in the hours of 

operation at a permitted or exempted facility would not be considered a modification if the 

additional operating time was previously authorized. 

As currently written, the defmition of modification does not include "an increase in the 

annual hours of operation unless the facility has received a preconstruction permit or has 

been exempted ... ". As a result, an increase in the hours of operation at a permitted or 

exempted facility would be considered a modification even if the additional operating time 

was already authorized by the pennit or exemption. Insteadi the definition of modification 

should be changed to not include "an increase in the annual hours of operation unless a 

limitation in an existing pre construction permit or exemption will be exceeded.'' 

5. The emission of a new compound would be considered a modification even ifth~ emissio7l3 

of a relatively equivalent compound were reduced by a greater amount. 

As written, the definition of modification does not include "a physical change in, or change 

in the method of operation of, a facility that does not result in a net increase in allowable 

emissions of any ail' contaminant and that does not result in the emissions of any air 

contaminant not previously emitted ... ". However, according to the draft TNRCC 

guidance document that will be used to assist in the implementation of Senate Bill 1126. 

emission of a new air contaminant to the atmosphere is allowed if the emissions of a 

relatively equivalent compound are reduced by a greater amount. 

The definition of modification should be modified for clarification. For example, the 

exemption could be changed to "a physical change in, or change in the method of operation 

of, a facility that does not result in a net increase in allowable emissions of any air 

contaminant and that does not result in the emissions of any air contaminant not previously 

emitted, other than a relatively equivalent compound." 

6. A facility that has undergone a BACT review as part of a special exemption authorization 

within the last 120 months must be considered a qualified facility. 

A facility is considered a qualified facility if it has undergone any BACT review within the 

last 120 months. However, the current definitions of modification of an existing facility 

and of qualified facility only reference a facility if it "has received a preconstruction permit 

or pennit amendment or has been exempted pursuant to § 116.211 of this title ... no earlier 

than 120 months prior to a change in that facility". These references do not include special 

exemptions as a suitable fonn of authorization and BACT review. Special exemptions 

should be specifically listed in both definitions, and other forms of authorization such as 

standard permits, special pennits 1 etc. should also be listed for clarification. 
NOV 09 '95 03:41PM 

Ms. Lisa Martin 

Page4 

November 9, 1995 

P.S 

1. A permit amendment or alteration should not be required for any type of change that does 

not qualify as a modification to an existing facility. 

As noted in§ 116.116(d), "no pennit amendment or alteration is required ifthe changes to 

the pennitted facility qualify. for an exemption ... ~~. However, this section should exempt 

other changes that are not considered modifications. Therefore § 116.116( d) should be 

changed to read: 

ccsituations when a pennit amendment or alteration is not required. Stanelftfl4 

exemptiee in liet1 efpermit ftll't:ertameftt er alteratiea. Notwithstanding any other 

subsections (a), (a~. er (e) of this section, no pennit amendment or alteration is 

required if the changes to the permitted facility do not quality as a modification to an 

existing facility. as defined in Subcha;pter A of this chapter ql:l-S:lify fer aa exemptiOft 

ttntler Sl:lbehapter C oftfiis ehapter (relatm; te Permit Exemptie11s) unless -prohibited 

by permit condition as provided in § 116.11 S of this title (relating to Special 

Conditions). All such exemptee changes affecting emission rates from to a permitted 

facility shall be incorporated into that facility's permit at such time as the permit is 

amended or renewed. •• 

Definition of fJuaUfied Facility 

8. EftliSsions reductions resulting from the shutdown ofgrandfatheredfacilities and other 

facilities that have not undergone a BACT review within the last 120 months should be 

allowed as creditable reductions. 

The definition of qualified facility should be modified to include all facilities that are 

shutdown in an enforceable manner. The definition of qualified facility could be modified 

as follows: 

Qualified facility- An existing facility that has received a permit or has 

been exempted pursuant to Subchapter C of this chapter (relating to Permit 

Exemptions) no earlier than 120 months prior to a change in that facility; 

or, that uses an air pollution control method that is at least as effective as 

B.A.CT that would have been required for the same type of facility that 

received a permit no earlier than 120 months prior to a physical or 

operational change to the facz'lity.· or. that was shut down no earlier 

than 120 monthspriar to a physical qr operational change tQ. the facility 
NOV 09 '95 03:41PM 

Ms. Lisa Martin 

Page 5 

November 9, 1995 

P.6 

In other words, shutting down a facility should be considered equivalent to BACT. 

Shutting down a facility constitutes 1 00% control. Reg VI would still require that facilities 

experiencing emissions increases during future operation be equipped with BACT. The 

inclusion of emission reductions resulting from shutdowns will provide an incentive for 

taking older, higher emitting facilities out of operation. 

Notification of Changes to Qualified Facilities 

9. Documentation should be required only for those physical or operational changes 

which are excluded from permitting requirements per § 116.116(b)(2) by remaining 

below the allowable emissions rate (as noted in the definition of modification of an 

existing facility). 

As stated, § 116.117(a) requires documentation for all changes which do not 

constitute modification of an existing facility; including maintenance and 

replacement of equipment (e.g. replacement of a single valve), an increase in the 

annual hours of operation, and the use of Standard Exemptions (for which 

documentation is already required in order to incorporate such changes into permits 

during amendments and renewals). The wording in this section should be modified 

accordingly to implement the intent of Senate Bill 1126 and exclude these other 

types of changes from additional recordkeeping. 

_) 

10. Documentation required to be maintained at the plantsite should only include that 

information relevant and necessary to demonstrate exclusion .from §ll6.116(b)(2) 

permitting requirements. 

§ 116.117(a) lists documentation required to be maintained at the plant site including 

a "quantification of all emission increases and decreases ... and a description of 

any equipment being installed." This wording needs to be revised to clarify that 

only relevant infonnation needs to be retained. 

For a MAERT to be considered accurate, § 116.117(b)(2) requires all emission 

points to be identified, and all air contaminants afl'ected by the change to be 

represented. To clarify the intent of this paragraph the wording for the first 

requirement should be revised to compliment that for the second requirement and 

read "all emission points affected by the change have been identified." 

11. For changes at qualified facilities that do not require notification when the change 

is made, on-site recordkeeping is solely adequate to demonstrate environmental 

compliance. An annual report summarizing each change is not justified for such 

insignificant emission rate changes. 
NOV 09 '95 03:42PM 

Ms. Lisa Martin 

Page 6 

November 9, 1995 

§ 116.117(b) requires affected facilities to submit an annual report for all changes 

which meet a given criteria. According to Senate Bi111126, changes as identified 

by this criteria are not even considered "modifications" due to their insignificant or 

previously authorized emissions. Such changes are comparable to maintenance and 

replacement of equipment, an increase in the annual hours of operation, and the use 

of Standard Exemptions (for which notification requirements have already been 

identified on a case~ by-case basis in the appropriate exemptions). Also, these 

changes will be rolled into the permit at the next time the pennit is amended or 

renewed. As a result, the annual notification requirement should be removed from 

Regulation VI. 

12. The criteria for changes at qualified facilities which do not require notiflcation 

when the change is made should be expanded to include changes which involve _ 

trading of emissions between facilities with "relatively equivalent locations," and 

those which vent through a common vent system. 

§ 116.117(b)(3) excludes from notification only those changes which do not involve 

trading of emissions between facilities. The purpose of this condition is to 

eliminate any net effect on off-site emission impacts. However, emission netting 

between facilities in close proximity to each other (e.g. less than 25 feet), and those 

from facilities which share a common vent system, will not have a significant affect 

on off~ site emissions impacts. The wording in this section should be modified 

accordingly to accommodate these scenarios without notification. 'I'l\fRCC review 

of these insignificant changes would only clog the system with unneeded work. 

13. Notices pr9Yided to the INRCC should be accepted by means other than just 

certified mail. 

In certain situations, there may be a need to send notices via other suitable mail 

delivery methods (e.g. Federal Express, United Parcel Service, and handcarried). 

The wording in § 116.117(c) should be modified in order to accommodate these 

other methods of delivery. 

Referenced Guidance l)ocument 

P.7 

14. Eastman fully supports the consideration of relatively equivalent compounds as 

interchangeable when determining if changes to facilities will result in a net increase in 

emissions. 
NOV 09 '95 03:42PM 

Ms. Lisa Martin 

Page 7 

November 9, 1995 

P.B 

We support the proposed changes to Regulation VI that will consider relatively equivalent 

compounds as interchangeable. We will likely submit separate comments in the future 

regarding any methods proposed for evaluating the interchangeability of one compound for 

another in the referenced guidance document. We may also propose the use of another 

method for evaluating interchangeability that uses a collocation of impacts screening 

approach. This approach yields a slightly more complex air toxics analysis for a particular 

change or modification; however, the result will be an analysis that is not overly stringent 

and that achieves the desired result of removing more insignificant emissions increases 

from the resource intensive case-by-case new source review-process. 

15. The guidance document referenced in the rule changes, and changes thereof, should 

undergo public review and comment, or at a minimum, the public should be given adequate 

notice prior to changes to the guidance document. 

Issuing new TNRCC guidance documents or changing existing guidance documents 

without notifying the public of the changes and making the document readily available to 

the public for review and comment results in inefficiency and confusion. Regulated entities 

can only follow guidance of which they are aware. If changes are made to the referenced 

guidance document without informing the affected entities, these companies may rely on 

inaccurate or outdated guidance. In some cases, this may result in a lot of wasted time and 

effort. Allowing public review and comment or providing notice prior to changing 

guidance documents would eliminate the confusion and inefficiencies associated with 

fluctuating guidance and instantaneous 1NRCC changes to guidance documents. 

New Compliance Demonstration Requirements 

16. Section 116.119 restricts compliance demonstrations to jive acceptable methods. The 

TNRCC Staff should not use the implementation of Senate Bil/1126 as an opportunity to 

ltmtt the methods for demonstrating compliance with all types of authorizations. 

It has always been understood that the 1NRCC could request a demonstration of 

compliance at any time. However, compliance demonstrations have never been limited to a 

list of specific methods. The TNRCC should not use the implementation of SB 1126 as an 

opportunity to restrict compliance demonstrations to only five acceptable methods 

regardless of the type of authorization. At a minimum, a sixth option should be added to 

§ 116.119 that will allow a compliance demonstration using "any other method of 

demonstrating compliance that uses appropriate engineering calculations or analyses., 
NOV 09 '95 03:43PM 

Ms. Lisa Martin 

Page 8 

November 9, 1995 

If you have any questions regarding these comments, please call John Tolleson, P.E. at 

(903) 237-6128. 

Very truly yours, 

&JtJ~ Dael Baughman, P.E. 

Manager, Environmental Affairs 

L025JDT5.rw 

P.9 
11-08-1995 04:05PM FROM EC-Applied, Inc. 

EC-Applied, Inc. 

Environmental Consulting 

November 3, 1995 

Ms. Lisa Martin 

Office of Policy and Regulat€>ry Development 

P.O. Box 13087 

Austin. Texas 78711-3087 

RE: Rules Tracking Log #95144·166~AI 

Dear Ms. Martin: 

TO 15122395687 P.02 

8 

1800 Bering-Suite 200 

Houston, ~exes 770S7 

713/977-a7~ 

[FaxJ 7 3/9n-a797 

This letter presents comments regardjng the proposed revisions to the Chapter 116 rules 

published in the October 10, 1995, issue of the Texas Register, regarding Control of Ai Pollution 

by Permits or New Construction or Modification. 

I applaud the effort to create groupings of compounds based on similar characte istics and 

effects. Recent permitting experience with a to11 processing facility. whose fee tocks and 

products change weekly, m~de evident the need for a convenient method fo changing 

compounds without the need for a permit amendment or even the paperwork of standard 

exemption. My comments today regard the specific mechanism by which the "relatively 

equivalent compound" idea will be put into place. It appears that the compou s will be 

grouped by the TNRCC staff and published in a guidance document, without a formal egulatory 

proposal to allow industry to comment. J feel that industry should be given the opp rtunity to 

comment on these crucial compound' groupings, as well as on the de minimis level nd impact 

ratio equ.ation that will be used to determine qualified compound trading. 

H this regulation evolves with reason~ble compound groupings and a workable mec anism for 

implementation, it will be a tremend0us step for ensuring the protection of human ealth and 

the environment, while allowing the regulated community flexibility and a reductio in permit 

and exemption filings. · · 

Sincerely, 

.LI'm.rn.uplied, Inc. 

c:\"fl1'60data\mart.in.ltr 

• Air , • Groundwater . . WllstJwaMr . • Solid Waste • ASS$:!;$n'lsnts . . Permi1ting • . Refr,ediation • 

TOTAL P.02 
... ·. ··-·· ·-·~.-:--·:.·: ·. :.·· .... · .. · .·· __ .·.·-· ... _ ......... · ~ .... .: ... _ -·- ·-·-~ _. 

NOV 09'95 15:58 FR EOC ENVIRO-SAFETY 713 646 7867 TO 915122395687 P.02/0 

IN RON 

OPERATIONS CORP. 

'P, 0. Bmc 11S8 Haudon, Taltal 77231-1188 (713) 853~161 

November 9, 1995 

Ms. Lisa Martin 

Office of Policy and Regulatory Development 

Texas Natural Resource Conservation Commission 

MailCode 202, P.O. Box 13087 

Austin, Texas 78711-3087 

8 

RE: Comments on Proposed Amendments to Chapter 116 to Implement Senate Bill 

1126,20 Texas Register 8306, October 10, 1995, Rules Tracking Log #95144-

116-AI 

Dear Ms. Martin: 

These comments are being submitted on behalf of Enron Operations Corporation (Enron). 

Enron operates one of the largest natural gas transmission systems in the world with 39,000 

miles of pipeline in the United States. Enron is the largest purchaser and marketer of longterm natural gas supplies in North America. markets natural gas liquids worldwide, and is 

one of the largest independent developers and producers of electricity in the world. 

The regulations proposed by the Texas Natural Resource Conservation Commission 

(TNRCC) to implement the provisions of Senate Bill 1126 are being codified in Chapter 

116. Enron supports the recommendations of the Texas Mid-Continent Oil and Gas 

Association (TMOGA) that are being submitted concurrently to clarify and refine the 

proposed regulations. 

In addition, Enron beHeves that the proposed regulations, in section (G) of the 

"'modification" definition. could indicate a resolution to the status of natural gas facilities 

that are "grandfathcrcd'' (pre-date the Texas Clean Air Act), as was the intent of Senate 

Bill1126. 

Enron anticipates that further revisions to Chapter 116 are required to clearly resolve this 

.. grandfather" issue. The Texas Title V Planning Committee, of which Enron is a 

member, has recommended that the "grandfather" provisions included in Chapter 122 

should be removed and addressed in Chapter 116. This issue should be resolved in -

separate rulemaking on an expedited basis. 
NOV 09'95 15:58 FR EOC ENVIRO-SAFETY 713 646 7867 TO 915122395687 

Emon appreciates the opportunity to comment on TNRCC's proposed regulations to 

modify Chapter 116. Ifyou have any questions, please call me at (713) 646-7646. 

Sincerely. 

Marc N. Phillips 

Regulatory Technical Analysis 

** TOTAL PAGE.003 ** 
NOU-06-1995 16=06 FROM 6 air DALLAS TX. TO 915122395687 P.002/004 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

Ms. Jodena N. Henneke 

Director 

NOV 0 a· 1995 

Air Quality and Regulations Division 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 

Austin, TX 78711-3087 

8 

RE: Comments on Proposed Revisions to 30~exas Administrative 

code, Chapter 116 (Regulation VI) for Control of Air 

Pollution by Permits for New Construction or Modification, 

Rule Log Number 95144-116-AI 

Dear Ms. Henneke: 

We have reviewed the proposed revisions to Regulation VI 

which you forwarded to us October 11, 1995. The Texas Natural 

Resource Conservation commission has proposed to amend Section 

116.10, concerning General Definitions and section 116.116, 

concerning Amendments and Alterations; the repeal of Section 

116.117, concerning Distance Limitations; and new section 

116.112, concerning Distance Limitations; Section 116.117, 

concerning Notification for Changes at Qualified Facilities; 

Section 116.118, concerning Qualified Facilities; and Section 

116.119 1 concerning Demonstrating compliance with Allowable 

Emission Rate. On the basis of our review of the proposed 

revisions, we have comments and items of concern which you should 

address for the public record prior to adoption. our comments 

and items of concern follow: 

1. Page 17, Section 116.10, definition of "net increase in 

allowable emissions." This definition allows for "up front" 

netting by allowing a source to use other decreases to 

offset a proposed increase. If there is no.net increase in 

allowable emissions, the proposed change is not a 

modification, and no permit is required. The public record 

should address the following: 

A. Creditability criteria for the decreases used to net 

out of review. The decreases should be enforceable (or 

verifiable) as a practical matter, not previously 

relied upon in a Prevention of Significant Deterioration (PSD) permit or nonattainment permit, and 

not used in the demonstration of attainment or 

reasonable further progress in the State Implementation 

Plan. 

R.cyclod/Recyc:lable • Printed llr'itfl ·v9Qefablll Oil BasfJd Inks on roo" RBCyr;Jed Papsr (40" P()Stooi'ISUITier) 
NW-\Ob-l~ lb•~::rr t-I"<Uf'l b a1r UHLLH:;:, ll'\. lU 

2 

B. The period of time over which the source is to 

determine the net increase in allowable emissions. The 

TNRCC should consider a netting window which begins 

when the source notifies TNRCC of the proposed change 

and ends when the proposed increase occurs, or another 

time period that TNRCC determines to be more 

appropriate. 

c. Whether the source should include other non-project 

increases which occur in the netting window. 

D. That these revisions will not affect applicability of 

major sources and major modific~tions with respect to 

PSO and the permitting requirements applicable in 

nonattainment areas. Discussions with the staff of 

TNRCC indicate that the provisions in proposed Section 

116.117(a) and (f) adequately address this concern by ensuring that any project will comply with the Federal 

Clean Air Act, Title I, Part c {pertaining to PSD) and 

Part 0 (pertaining to nonattainment areas). The 

Environmental Protection Agency concurs with TNRCC that 

this concern is adequately addressed. 

E. How the proposed change will affect Texas's regulations 

pertaining to Operating Permits under Title V of the 

Feaeral Clean Air Act. 

2. Page 13, Section 116.10, definition of "allowable 

emissions," paragraph (E). This paragraph states that for a 

qualified facility which voluntarily installs emissions 

control, its allowable emission rate shall be the maximum 

allowable emission rate prior to the installation of 

controls. .The public record should address why the 

allowable emission rate is not the facility's potential to 

emit after the installation of controls. In addition, if 

such source retains its old allowable emission rate, the 

source may not use the reductions to satisfy provisions for 

netting and offsetting associated with permitting under PSD 

ana nonattainment area permitting (see 40 Code of Federal 

Requlations 5l.l66(b) (3}{vi)(b), 51.165(a)(l)(vi)(E) (2), and 

40 Code of Federal Regulations 51.165(a)(3)(E)). 

3. Page 2, first paragraph. The TNRCC states that it will 

develop a guidance document concurrently with the proposed rule concerning the identification of relatively equivalent compounds. This guidance will group compounds baaed on 

similar chemical and effects characteristics. However, 

TNRCC did not furnish such guidance document with the 

proposed regulatory changes to Regulation VI. The TNRCC 

should furnish a proposed guidance document and make it 

available for public review during the public hearing or 

address for the public record when the guidance.will be 

available for public review. . :;·,;j~t;·; .· _ . ·~ ·. ~~ ~ .. ~; ~· 

' : .. ·- /,;,' . " 
NOV-06-1995 16=07 FROM 6 air DALLAS TX. TO 915122395687 P.004/004 

3 

4. Page 13, section 116.10, definition of "Best Available 

Control Technology (BACT)." This definition only provides 

that TNRCC will determine BACT on the basis of the economic 

reasonableness of reducing or eliminating emissions from the 

facility. This definition is not consistent with the 

definition of BACT in section 169(3) of the Federal Clean 

Air Act and in 40 Code of Federal Regulations 51.166(b)(l2). 

The TNRCC should consider adopting a definition consistent 

with the Federal definitions or address in the public record 

why it is proposing to adopt a different definition and show 

that the proposed definition is equivalent to the Federal 

definition. 

5. Page 14, Section 116.10, definition of "modification of 

existing facility." Paragraphs (A) and (B) refer to 

"insignificant increasesn of emissions. The public record 

should address what TNRCC considers to be an insignificant 

increase and the basis for its determination of 

insignificance. 

6. Page 31, Section ll6.117(b) (2). The public record should 

address any allowable emission rate established in a Maximum 

Allowable Emission Rate Table is enforceable (or verifiable) 

as a practical matter. 

7. Page 33, Section 116.118(a) (1). The public record should 

address what is meant by the expression that an "allowable 

emission rate is inaccurate." 

Thank you for the opportunity to review and provide comments 

on these proposed revisions. If you have any questions, please 

call Mr. Stanley M. Spruiell of my staff at (214) 665-7212. 

Sincerely yours, 

~=~~ Chief _ Air Permits Section 

bee: Bruce Jones (GRC) 

TOTAL P.004 
}rov. 9.1995 11:12AM OPERATIONS INTEGRITY 

~N COMPANY, U.S.A. 

POST OFFICE 80X 21 tiO • HOUSTON, TEXAS n252·2~80 

PRODUCTION DEPARTI.IENT 

Ms. Lisa Martin 

November 9, 1995 

No. 0379 ep 2/3 

W-9 

Proposed Revisions to Definitions for 

Control of Air Pollution by Permit for New 

Construction or Modification, 30 TAC 

116.10 20 Tex Reg 8306, 10/10/95 

Texas Natural Resource Conservation Commission 

Office of Policy and Regulatory Development 

MC 202, P.O. Box 13087 

Austin, TX 78711-3087 

Re: Rule Tracking Log Number 95144-116-AI 

Dear Ms. Martin: 

Exxon Company, U.S.A.'s Production Department, a division of Exxon Corporation 

(Exxon), operates many oil and gas field production facilities in Texas. As such, some of 

our production facilities are subject to the above captioned rule revisions to Texas 

Natural Conservation Commission's (TNRCC) Regulation VI, concerning the permitting of 

sources of air contaminants. 

Exxon Production supports the comments jointly submitted by the Texas Midcontinent Oil 

and Gas Association (TMOGA) and the Texas Chemical Council (TCC). We would like 

to emphasize our support for TNRCC's accurate codification of section 382.003(9)(G) of 

Senate Bill 1126 in the definition of modification of an existing facility. This allows an 

increase in emissions at grandfathered natural gas processing plants and compressor 

stations up to the level of the maximum designed capacity without being called a 

modification. Although we understand this rulemaking only intended to address 

allowable emissions from qualified facilities, Exxon Production urges TNRCC to begin 

expedited rulemaking as soon as possible to define allowable emissions from all 

grandfathered facilities that are not qualified. The outcome of this issue will have an 

impact on the way our facilities will be treated under the operating permits program (Reg 

XII} and it is imperative that work begin soon. 

In addition, Exxon Production requests the agency to revise Section 116.117(a), 

regarding Notification for Changes at Qualified Facilities, to allow operators to maintain 

documentation at the plant site or at the nearest manned location if the site is unmanned. 

,o, DIVISION OF EXXON COP.POF.A TION 
Nov. 9.1995 !1:13AM OPERATIONS INTEGRITY No. 0379 P. 3/3 

Ms~ Lisa Martin -2- November 9, 1995 

Exxon appreciates the opportunity to comment on the proposed revisions and would like 

to express our appreciation to the TN RCC staff on the expedited preparation of this 

proposed revision. 

Sincerely, 

0..-.' ~ ~~ .t... ~h.. 

Neil R. Latimer 

Environmental Planning Coordinator 

NRUset 
RECE\VED 

OFFICE Of POLICY & ENT 

REGUlATORY oEVELOPM 

Lisa Martin 

Office of Policy and Regulatory Development 

MC 202 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Lisa, 

October 23, 1995 

Enclosed are the comments of the Galveston-Houston Association 

for Smog Prevention (GRASP) on changes to Regulation VI due to 

Senate Rill 1126. 

1) Under 116.10, for the definition of emission rate we are 

against allowing the highest annual rate for anytime in the past 

10 years. ~his maximizes emissions and ensures that the public 

will breathe more polluted air at higher concentrations. 

2) We are against any use of the term "relatively equivalent 

compound". We feel this is a way to allow the release of toxic 

compounds that should be regulated strictly and specifically based 

on the process proposed. The guidance document must be put out for 

public input since this will be the determining factor in whether 

to all a facility tb make changes under 116.116(b)(2). 

3) Under 116.10, Allowable emission rate, (E), we are against 

this provision since it allows installing controls but a maximum 

emission rate of what occurred be£ore controls. This defeats the 

purpose of allowing controls since you will have as much potential 

emissions after controls. are put on as before. 

4) Under "'1odification of exist.ing fncility in 116.1.0, 1.re ~vant 

under (A) and (B), insignificant defined so that there will be no 

question as to what this is and so arbitrary and chaning decisions 

will not occur. Also under (E) we are against the 10 year time 

frame used. Under (E)(ii) this provision is unworkable because it 

presumes that you can know what TNRCC would have called RAC~ 10 years 

ago. Since TNRCC always talks ahout its case-hy-case BACT you cannot 

determine what TNRCC would have done 10 yrs. ago. How are local 

agencies supposed to he able to determine this? This will allow 

industry to justify after-the-fact poor controls as BAC~. We 

object. 

5) Under "relatively equivalent compound" definitibn there are 

no criteria listed here that defines this term. This is not accepta~l 

to allow such a loose almost case-by-case definition of what this 

term will he. 

P.O. BOX 30537 • HOUSTON, TEXAS • 77249-0537 
Page 2 

6) Under 116.116 and 116.117 we are concerned about allowing 

many changes to occur over a year's time without notification 

of TNRCC. How is a local program, which will do SIP inspEctions 

know if the changes that have been made by the company are in 

fact those that TNRCC allows? We are against 116.116(a) since no 

public input will be required and the Executive Director will then 

be subject to more political pressure without the public having 

its say. 

7) Under 116.118 we are against adjusting a grandfathered facilit 

allowable emission rate once current BACT is applied. This will allo· 

more air pollution which means the public's health and welfare will 

be affected adversely since they will breathe more and higher air 

pollution levels. You are supposed to be protecting the public 

health. Further it is not stated how equivalency to established 

technologies will be established. You nee9 to state in percentage 

what equivalency is. We request it means at least getting at least 

98% of what the total emissions reductions of point and fugitive 

emissions are with established BACT with no increase in the toxicity 

of the emissions. Also under 116.118(c) the BACT installation must 

be with TNRCC's approval and stated this way specifically. 

We also do not agree that emission point trading of compounds 

within a grouping may occur without notification of the TNRCC at 

a de minimis level. If there is greater toxicity or reactivity 

of a compound in creating ozone then this must not be allowed otherwise you subject the public to more pollution and more dangerous 

pollution which will hurt its health and welfare. We object! In 

addition if trading is done without your notification how will you 

keep track of what is allowed visit by visit of a facility? This 

makes things more difficult for inspectors and ensures that SIP 

inspections will be harder to do correctly and will overlook problem 

areas or violations. If inspectors cannot understand what is happening then they will not enforce the regulation and rules. 

We request that this entire proposal be withdrawn and rejected 

and you start all over again. 

Sincerely, 

·~ ~ Brandt Mannchen 

GRASP 

1705 Michigan #3 

Houston, Texas 77006 

H713-521-9534, W713-640-4313 
NOV-09-1995 14:39 FROM HL&P ENVIRONMENTRL TO 8-16-23688-9-1512239 P.02 

November 9~ 1995 

Ms. Lisa Martin 

Office ofPolicy and Regulatory Development 

Mail Code 202 

P.O. Box 13087 

Austin, Texas 78711-3087 

Re: Rules Tracldug Log #95144-116--AI 

Commats on Proposed Revisions to 30 T.A.C. Chapter 116 Regarding 

Implementation of Senate Bill 1126 

Dear Ms. Martin: 

8 

Houston Lighting & Power Company (HL&P) is an investor owned elecf;ric utility that provides 

service to over 3. 7 million people within a 5,000 square mile area in southeast Texas. As such, 

m..&P has numerous facilities and operations which are affected by TCKaS Natural Resource 

CoDSelVation (TNRCC} air pennitting regulations and, therefore, appreciates this opportunity to 

comment on the.above>-referenced proposed rule. 

HL&P strongly supports the intent of Senate Bill 1126, to provide much ~eater openting 

flexibility to facilities that satisfy qualifying criteria This .flexibility will allow "qualified &cilities" 

to respond more quickly to changing conditions and provide an incentive; for upgrading control 

methods on older facilities. mAP also supports the TNR.CC's process of involving the regulated 

community in the development of these proposed rules. F'mally, HL&P strongly supports the 

comments to the above referenced proposed rule which were submitted by the Texas MidContinent Oil & Gas Association in conjunction with the Texas Chemical Council. HL&P has 

participated in the drafting of these comments and believes that they help to clarify the regulatory 

intent and aid in the implementation of the legislative intent of Senate Bil11126. 

HL&P appreciates your consideration of these comments. 

Sincerely, 

tJc~ B. C. Carmine~ P.E. 

Manager, Air Resources Division 

Environmental Department 

CCT/cct 

A Subsidiary of Houston Industries Incorporated 

TOTRL P.02 
- ·.~ ··--·· -·--· ....... --· -· ~- -· _ _, .. --------"··--.. -

NOV-09-1995 16!31 PHILLIPS 66 COMPANY 

~ 

~ PHILLIPS 66 COMPANY 

A DIVISION OF PHILLIPS PETROLEUM COMPANY 

Sweeny Refinery & Petrochemical Complex 

P.O. Box 866 

Sweeny, TX 77480 

November 9, 1995 

Lisa Martin 

Texas Natural Resource Conservation Commission 

Office of Air Policy & Regulatory Development 

Mail Code 202 

P.O. Box 13087 

Austin. TX 78711-3087 

RE: Rules Tracking Log #95144-116-AI 

Dear Ms. Martin: 

409 491 2828 P.02/04 

8 

VIA FACSIMILE (512) 239.5687 

Phillips Petroleum Company (Phillips) submits the following comments in response to the proposed 

changes to 30 TAC Chapter 116, published in the October 10, 1995 Texas Regtster. 

Phillips is an integrated petroleum company "'"ith a number of exploration, production. transportation, 

refinin& petrochemical and marketing operations in the state of Texas impacted by this regulation. 

Phillips generally supports the intent of the proposed revisions but feels the language is somewhat 

confusing, especially given the compleJrity of the existing program. We respectfully submit the following 

su~stions and requests for clarification. 

• How do the proposed definitions of§ll6.10 interact with those in Section 116.012? It is confusing to 

have different definitions fur "Actual emissions" and "actual emission rate" depending upon whether it 

is major or minor NSR Likewise, "allov.rablc emissions'• and "allowable emission rate" are confusing. 

"De Minimis threshold test'' is defined in 116.012 and "De Minimis impacts•• are defined .in 116.10 but 

"de minimis" is used 1n 116.117(c) in another context. · 

• The definition of "facility" is vague. ln some cases it clearly means a plant, in other cases a collection 

of emission units and yet in the majority of proposed sections, means a single emission unit. 

• Within the definition of"Modification ofExisting facility'', the term "insignificant increase•• is unclear. 

This tcnn needs to be defined. 

• Clarification is needed regarding the baseline emissions to be used in calculating whether increases 

·have occurred which "modify" an existing facility. Arc they actual, preswnptivc actual or allowable 

emissions? Over v.·hat period of time are these calculated? 
NOV-09-1995 16=31 PHILLIPS 66 CCIMPANY 409 491 2828 P.03/04 

• At a minimum. the definition of "Net increase in allowable emissions " nt:eds a semi-colon after the 

word "considering"'. It would be even cJcarer if the definition were stated be the "sum of' the stated 

emissions. 

• In paragraph 116.116(b)(1) the first appearance ofthe word "change" sbou1d be replaced with 

.. modification". A permit amendment should not be required if no "modification of existing facility .. , 

as defined in Section 116.1 o. is made. Tiris is true throughout the proposal. In the same paragraph, 

the term "various emissions" is vague. Docs this refer to specific pollutants or several different 

emissions of the same pollutant? Suggested wording to clarify the paragraph is: 

"(1) For non-qualified facilities, it shall be unlawful for any person to vcuy from any representation 

or penn it condition if the modification will cause a change in the method of control of emission, or 

will result in a net increase in pollutant-specific actual emissions, unless application is made ... " 

• In Section ll6.116(b)(2), the first occurrence of the word .. change" should be replaced with 

"modification"'. Similar to the above paragraph. changes to qualified facilities \\-illch are not 

modifications (such as standard exemptions) should not require permit amendments. 

• In §116.116(c)(l) add "requjred for" after "A permit alteration is." As written. the subparagraphs 

seem to be defining the words "permit alteration". This is confusing. 

• Proposed paragraph 116.116(c)(l)(C) should be eliminated. "Allowable emission" per 116.012 

includes federal requirements which may change. To continually update all Reg VI pennits for new 

rates is burdensome. The Reg VI pennitting program should be to establish the standards required by 

New Source Review. The Title V permit program v,ill compile other applicable requirements to which 

the facility is subject. 

lf, for some reason, the requirement for a permit alteration upon a decrease in aJlov.rable emissions is 

retained, the following wording is suggested: 

"(c) a modification which causes a decrease in allowable emissions." 

• In paragraph ll6.117(b ), Phillips does not support the wording which makes the authorization for the 

change contingent upon a future event. The authorization to make the change should be based on the 

fact that the facility is qualified and meets the other requirements precluding notification. The 

requirement for an annual report of changes to the facility should be a separate requirement and not 

part of the authorization for no notification, a prior event. The requirement_ for yet another report 

should be eliminated altogether since the information is available at the facility per the previous 

paragraph and will be included at permit renewal. We recommend eliminating the requirement for an 

annual report. 

• The usc of the word "changes" throughout the proposal is very confusing. Modification should be used 

where applicable and where it is not, the typ~:: of changes referenced need to be clearly defined. One 

example is Section 116.117(e) "All such changes to a permitted facility ... ". Docs this mean changes 

as noted within §116.117? Or something broader? 

Phillips strongly supports the increased flexibility being proposed by this revision, but due to the many 

overlapping tenns and similar requirements between major and minor NSR and PSD requirements coupled 
NOV-09-1995 16:32 PHILLIPS 66 COMPANY 409 491 2828 P.04/04 

with the fact that significant substantive detail to be included in the guidance documents is yet unavailable, 

we request another conunent period and rewrite of Reg VI along with the guidance docUIDmits before tbc 

rule is made final. 

Phillips appreciates the opportunity to comment on this proposal and especially values the open process 

with which TNRCC has been handli:ns Reg Development for air rules. 

Please contact Jan Laughlin ( 409) 491-2277 of my staff should you have any questions regarding the above 

comments. We will be happy to assist TNRCC in any way possible to attain workable, effective air 

regulations wbieh provide environmental protection in the most cost-effective and flexible means possible. 

Thank you for you consideration of these comments. 

DFH/JLIJglp 

Very truly yours. 

PETROLEUM COMPANY 

er 

Enviromnental Manager 

IDTAL P.lll4 
.. --·· · ... · .. : 

8 

TEXAS MID-CONTINENT OIL & GAS ASSOCIATION 

Lester Clark, lreckanrid~ 

Choirmon 

Robart L Looney, A1111in 

Preaident 

William L Ennis, Aysrin 

Vice-Pre~oident 

lor Membership 

Cindy L Morphew; A1111in 

Vic~Preidenl 

for Environmental Affair1 

hnjamin W. Seb .... A11stin 

Voce-Pr.ident 

lor Governmental Aflo;,.. 

Jim Sierra, Austin 

Vice·Pre~oidenl 

for Finance 

District 

Vice-Presidents 

E. L Arne&, Jr., San Antonio 

Southwe1t Te.r.a• 

Danny H. Conklin, Amarillo 

The Panhandle 

Dan Allen Hughea, Jr., a...v.15e 

The I-.. Gull Cood 

A. V. Jon.,, Jr., Albany 

w .. tCentralle.r.a• 

W. A. Landreth, Jr., Fort Worth 

Curri1 W. Mewbaume, Tyler 

Ea11 Te.r.a1 

Joaeph 1. O'Neill, Ill, Mid5and 

The Permian Scnin 

W. M. Thocker, Jr., Wichita Falla 

John H. You"l, Hou1tan 

The Uppor G..lf Coo" 

Ms. Lisa Martin 

Office of Policy and Regulatory Development 

Texas Natural Resource Conservation Commission 

12118 North IH-35 

Park 35 Technology Center 

Building E 

Austin, Texas 78711 

November 9, 1995 

Re: Comments on Proposed Revisions to 30 T.A.C. Chapter 116 Regarding 

Implementation of Senate Bill 1126; Rules Tracking Log #95144-116-AI 

Dear Ms. Martin: 

Texas Mid-Continent Oil & Gas Association ("TMOGA") appreciates 

this opportunity to submit the enclosed comments on the above-referenced 

proposed rule. These comments have been jointly prepared with Texas 

Chemical Council ("TCC"). 

TMOGA strongly supports the general intent and many of the specific 

provisions of the proposed rules to implement Senate Bill 1126, which was 

enacted by the 1995 Texas Legislature and became effective on May 19, 1995. 

The majority of our comments are intended to clarify the regulatory intent and, 

in some cases, correctly implement the legislative intent of Senate Bill 1126. 

We encourage TNRCC to incorporate our recommended changes into the 

adopted rule. 

TMOGA is a multi-purpose trade assoc1at10n which represents all 

segments of the oil and gas industry operating in Texas. It numbers more than 

2,000 members, including 50 of the state's largest energy companies. Among 

many other activities, our members account for approximately 90 percent of all 

the oil and gas production in Texas and for approximately 95 percent of the 

refining capacity in Texas. 

The clear intent of the legislature in enacting Senate Bill 1126 was to 

provide much greater operating flexibility to certain facilities. Specifically, 

facilities that satisfy the qualifying criteria of either a fairly recent air permit or 

11 15 Son Jacinto Boulevard • Suite 275 • Austin, Texas 78701-1980 • THE: 512/478-6631 • FAX: 5l2/472-3859 

ll.:-....:. --· 
Ms. Lisa Martin 

TMOGA Comments on Proposed Revisions to 30 T.A.C. Chapter 116 

November 9, 1995 

Page two 

the use of fairly current air pollution control methods would be allowed to make physical 

and operational changes without any requirement to obtain a permit or other approval 

from TNRCC. These "qualified facilities" would be allowed to respond more quickly to 

changing conditions without the delay of the permitting process, while all other facilities 

would remain subject to the current permitting requirements. In addition to the benefits to 

the owners and operators of these facilities, this flexibility would provide an incentive for 

persons to voluntarily upgrade the control methods on older facilities and would allow the 

TNRCC to more effectively use its resources. We strongly encourage TNRCC to keep 

this legislative intent in mind as it develops the adopted rule. 

We wish to express our appreciation to the TNRCC staffwho have worked with the 

regulated community in developing these proposed rules. This process has allowed a open 

forum to address the details in implementing the statute. We feel that the cooperative 

attitude exhibited by the staff in understanding our concerns, and what we hope was our 

cooperative attitude in understanding TNRCCs concerns, will result in a better rule. We 

encourage TNRCC to continue to utilize this process in future rulemakings. 

Your consideration of our comments is very much appreciated. If you have any 

questions regarding these comments, please contact Cindy Morphew (TMOGA) at 478-

6631 or Mike White (Exxon Co., U.S.A.) at 713-425-7525. 

RL:ad 

Attachment 

/jely,J 

j~J-.frrt-rv-7 Rob Looney 
COMMENTS ON PROPOSED REVISIONS TO 

30 T.A.C CHAPTER 116 

REGARDING IMPLEMENTATION 

OF 

SENATE BILL 1126 

20 Tex. Reg. 8306 (Oct. 10, 1995) 

Rules Tracking Log #95144-116-AI 

Submitted by: 

TEXAS MID-CONTINENT OIL & GAS ASSOCIATION 

and 

TEXAS CHEMICAL COUNCIL 

To: 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

OFFICE OF POLICY AND REGULATORY DEVELOPMENT 

12118 North IH-35 

Park 35 Technology Center 

Building E 

Austin, Texas 78711 

November 9, 1995 
These comments, prepared jointly by Texas Mid-Continent Oil & Gas Association 

("TMOGA") and Texas Chemical Council ("TCC"), address the proposed revisions to 30 

T.A.C Chapter 116 regarding the implementation of Senate Bill1126 [20 Tex. Reg. 

8306 (Oct. 10, 1995)]. In these comments, the rule language is indicated by italics, with 

recommended additions indicated by underlining and recommended deletions indicated 

by strikeover. Comments regarding our recommended changes follow the rule 

language. 

§116.1 0. Definitions 

.. Actual emission rate .. 

Actual emissions_-fale- for purposes of the determination under §116.116(e){1) 

of this title. +the highest anntJa! rate (eonseetJti~ce 12 month period) of emissions of an 

air contaminant actuallv achieved from a qualified facility aehie•.ced within athe 120-

month period prior to the change. The period shall start no earlier than JantJary 1, 

1990. This rate cannot exceed any a{JJ)Iicable federal or state emissions limitation. 

Comments: We recommend that these changes be made in order to make the 

term consistent with the rule sections to which it is applicable, clarify the purposes for 

which the term is applicable, and accurately define the term. 

· The regulatory intent is that this term and definition will be applicable only to the 

rules dealing with the flexibility provided by S.B. 1126 regarding physical and 

operational changes to qualified facilities, and specifically to intra plant trading of 

allowable and actual emissions from other qualified facilities. The statute and the 

proposed rules implementing the statute use the term "actual emissions", not "actual 

emission rate". To avoid potential confusion and ambiguity, the de·fined term should be 

the same as the statute and the implementing rules. The de·finition itself clarifies that 

the term refers to the rate of emissions. 

The recommended changes also clarify that this definition of "actual emissions" 

is only applicable to intraplant trading involving actual emissions from other qualified 

facilities. The reference to §116.116(e) is a new rule section we are recommending be 

added to contain the requirements and procedures for the flexibility provided to qualified 

facilities. 

The proposed definition states that actual emissions will be the "highest annual 

rate", which is too limited. As discussed above, this definition of actual emissions will 

be used in intraplant trading of emissions to determine whether a change will result in a 

net increase in allowable emissions or the emission of a new air contaminant. The time 

period or periods for actual emissions will have to match the allowable emissions for 

which an intraplant trade is needed at the qualified facility where the change will occur. 

If the qualified facility at which the change will occur has allowable emissions stated in 
terms of an annual emissions rate, and an intraplant trade of annual emissions is 

needed, then it will be necessary to determine the actual annual emissions rate for the 

other qualified facility involved in the intraplant trade. However, if the qualified facility at 

which the change will occur has allowable emissions stated in terms of other periods 

(e.g., hourly emissions rate), and an intraplant trade is needed for one or more or these 

other rates, then it will be necessary to determine the actual emissions rate for the other 

qualified facility on the same basis. We have included provisions in our recommended 

§116.116(e) that clarify this. 

Finally, we recommend that the proposed limitation that the 120-month period for 

determining actual emissions can start no earlier than January 1, 1990, be eliminated. 

It will have the effect of penalizing persons who have volunt~rily installed controls or 

whose facilities have been operating below normal levels since 1990 .. The proposed 

definition will limit the actual emissions to be used as the basis for intraplant trading to 

any applicable state or federal limitations. This limitation will preclude the situation 

where the emissions reductions that have occurred at a facility due to more stringent 

state or federal requirements could be used at another facility. The purpose of the 120-

month period is to allow for the variation in operations that occurs at a plant. To initially 

cut off this period at January 1, 1990, serves no additional valid purpose not already 

provided by the state and federal limitation provision. 

"Allowable emission rate" 

Allowable emission§.~- ARThe authorized rate of emissions of an air 

contaminant from a facility that eFRits air eontaFRinantsas determined in accordance with 

this section. This rate cannot exceed the allowable eFRissJons rate speeilied by an}( 

applicable state or federal emissions limitationregl:l!ation other than tf.1is ef.1apter. 

(A) Permitted facilitv - An alkYilable eFRission rate for a peFFRitted faellity is 

an enforeeabJeFor a facility with a preconstruction permit under this chapter. the 

allowable emissions shall be the emission limit established in a~ permit on a 

FRB-XiFRI:JFR a/JowabJe eFRissions rate tableMAERT. plus any allowable emissions 

authorized by a standard exemption. 

(B) Standard exemption facilitv- An a/lowabJe eFRission rate for an 

BKempted faeilityfor a facilitv operating under a standard exemption. the allowable 

emissions shall beis the least of the emission§. rate allowed in § 116.211 of this title 

(relating to Standard Exemption List), athe emissions rate specified in the applicable 

exemption, or a federally enforceable emissions rate established on a PI-BlsJJ:m.. 

(C) Grandfathered facility - ARFor a qualified grandfathered facility, the 

allowable emission~ rate for a ql:lalified grandfathored faeility is an shall be the 

maximum annual emission§. rate after the implementation of any air pollution control 

methods to become a qualified facility. plus 10% of the maximum annual emissions rate 

prior to the implementation of such control methods. The maximum annual emissions 

rate is the emissions rate at the maximum annual capacity according to the physical or 

operational design of the facilitv. data from actual operations over a period of no more 

-2-
than 12 months that demonstrates the maximum annual capacitv. or other information 

that demonstrates the maximum annual capacity. 

(D) Standard permit facilitv- An allowable emission Fate fEor a facility 

authorized by standard permit, other than §116. 617(2) of this title (relating to Standard 

Permits List), the allowable emissions shall beio the maximum emission§. rate 

represented in the registration for the standard permit. 

(E) Soecial exemption facility. For a facility operating under a soecial 

exemption. the allowable emissions shall be the emissions rate represented in the 

original special exemption request. 

(EE) AniM allowable emission§.-Fale for a qualified facility shall not be 

acJ.justed by the 'tlohmtari!y installfngvoluntary installation of controls shall be tho 

maximf:lm allowable emission rate prior to the instaJ!ation of the eon trots. 

Comments: For the same reasons as discussed in our comments on "actual 

emission rate", we recommend that this term be changed to "allowable emissions". 

The majority of our recommended changes are to make the rule easier to read 

and understand and for consistency with other rule sections. Since the principal 

criterion for the determination of allowable emissions is the permitting status of a facility, 

we recommend that the individual paragraphs be labeled to identify the permitting 

status to which it refers. 

The recommended changes to paragraph (C), regarding grandfathered facilities, 

implement the legislative intent to provide flexibility to grandfathered facilities if 

appropriate control methods have been implemented. We feel that the recommended 

method of establishing the allowable emissions for purposes of future physical and 

operational changes at qualified grandfathered facilities represents a reasonable 

interpretation of the statutory term "allowable emissions". Establishing the allowable 

emissions as the maximum annual emissions rate after the implementation of the 

qualifying BACT plus 10% of the pre-control maximum annual emissions rate will result 

in a large decrease in allowable emissions while still providing sufficient flexibility to the 

grandfathered facility to justify the implementation of the qualifying controls, which will 

result in a decrease in actual emissions. For example, if a grandfathered facility has a 

pre-control emissions potential of 100 TPY, and the qualifying BACT achieves a 98% 

reduction in emissions, the resulting allowable emissions would be 12 TPY [1 00 TPY x 

(1.00- .98) + 100 TPY x. 10 = 12 TPY], which is a reduction in allowable emissions of 

almost 90%. Even if one assumes the grandfathered facility's actual emissions were 

only 50% of its pre-control emissions potential, the installation of the qualifying BACT 

would result in a minimum reduction in actual emissions of more than 75%. 

"Best Available Control Technology" 

BACT Best Available Control Technology (BACD- An emissions limitation 

based on the maximum degree of reduction in emissions of an air contaminant, ~ 

-3-
ooRsidomtioR giveR toconsidering the technical practicability and the economic 

reasonableness of reducing or eliminating.lhf1. emissions from the facility. 

Comments: We recommend that these changes be made to clarify that BACT is 

stated in terms of an emissions limitation and not a specified control method. 

"Grandfathered facility" 

Grandfathered facility - A facility for which either construction commenced on or 

before August 30. 1971. or construction commenced on or before February 29. 1972. if 

a contract was executed to commence construction on orbt(fore August 30. 1971. 

Comments: We recommend that this term and definition be added to provide 

clarity to the proposed rules. The proposed rules use the term "grandfathered facility" 

without providing a definition for this key term. Failure to define this term could cause 

confusion and ambiguity in understanding and implementing the new rules. The 

recommended definition is simply a summary restatement of the provisions in the Texas 

Clean Air Act. 

"Maximum allowable emissions rate table" 

Maximum aHowable emissions rate table (MAERT> - A table included with a 

preconstruction permit issued under this chapter that containsestab!fshlRy the allowable 

emission rates lnoJ1:1ded with aestablished by the permit for a facility . 

Comments: We recommend that these changes be made to allow the acronym 

"MAERT' to be used elsewhere in the rules and to provide more clarity regarding what 

a MAERTis. 

"Modification of existing facility" 

Modification of existing facility- Any physical change in, or change in the method 

of operation of .. a facility ... does not include: 

(A) insignificant increases in ... authorized by one or more boaFCITNRCC 

exemptions; 

(B) .. . 

(C) .. . 

(D) .. . 

(E) a physical change in, or . .. does not result in the emissions of any air 

contaminant ... that the facility.; 

(i) ... 

-4-
(ii) uses, regardless of whether the facility has received a 

preconstruction permit or permit amendment or has been exemoted pursuant to 

§ 116.211 of this title, an air pollution control method that is at least as effective as tl1!i. 

BACT, considering technical practicability and economic reasonableness, that #:16 

boaffiTNRCC required or would have required for a facility of the same class or type as 

a condition erol issuing a permit or permit amendment 120 months before the change 

will occur; 

(F) ... 

(G) a change in . .. annual emission rate of a potlutantany air 

contaminant in excess of the volume ... is one for which: 

(i) . . . 

(ii) .. . 

Comments: We recommend that these changes be made to update some of the 

terminology and to provide some clarification regarding legislative intent. We 

recommend that "board" be replaced with "TNRCC" in subsection (A) and (E)(ii) to 

update the terminology in the rules to re1lect the current organization of TNRCC. The 

additional wording in (E)(ii) is recommended to clarify the legislative intent of S.B. 1126 

that qualification on the basis of BACT applies to facilities that do not satisfy the criteria 

for qualification on the basis of a permit, permit amendment, or standard exemption. 

"Net increase in allowable emissions" 

Net inerease ln alf.o•NabJ.e emlsslons .R:Jr a qt:Ja#fied faciHty ... at the same 

TNRCC aeeol:lf1t Rt:Jmber. 

Comments: We recommend that this term and definition be deleted in its entirety 

and equivalent provisions relocated to new §116.116(e) that we are recommending be 

added. 

"New source" 

New sowvefacility- Any stationary sot:Jrsefaci/ity for which either ,...the 

construction ormodffioation of whish is commenced after August 30, 1971r .. or, 

construction commenced after February 29. 1972. if a contract was executed to 

commence construction on or before August 30. 1971for those sot:Jrces that had 

eontraets to start before At:Jgt:Jst 30, 1971, bt:Jt did not aett:Jal constrt:Jction t:Jntil after 

March 1, 1972. 

Comments: We recommend that these changes be made for consistency with 

the recommended new de·flnition for "grandfathered facilities". 

-5-
"Non-qualified facility" 

Non q1:1a!ified faeility Any fao#ity that is not a q~:~a!ffied faei!ity. 

Comments: We recommend that this term and definition be deleted as 

unnecessary. The provisions in the proposed rules that only apply to qualified facilities 

are clearly identified. A facility not being a qualified facility has no special significance 

other than it is not eligible for some of the flexibility provided by S. B. 1126. Referring to 

such facilities as "non-qualified" may tend to have adverse connotations that should be 

avoided. 

"Qualified facility" 

Qualified facility - An existing facility that satisfies the criteria of either subsection 

(EW) or (E,WiJ under the definition of "modification of existing facili(v" in this sectionha& 

roeei•lfJd a permit or has been f»<empted p1:1rs1:1ant to S1:1bohapter C of this eha:pter 

(relating to P6rmit ExeFRptions) no oaFfier than 120 months prior to a ohange in that 

faol-Hty; or, that 1:1ses an af.rpol!fltion eontrol mothod that is at least as etf6etive as BACT 

that wo1:1!d have been roq1:1ired for the same type of fael!ity that reeeived a permit no 

ear:fier than 120 months prior to a physiea! or operational ohange to the faeility. If a 

faei!lty adds eontro!s to beeome a q1:1alified faei!fty, those eontrols m1:1st meet e1:1rrent 

8/',CT req1:1froments. 

Comments: We recommend that these changes be made to avoid ambiguity 

and potential inconsistency in the rules. The term "qualified facility" will be used to refer 

to those existing facilities that are eligible for the flexibility provided by S.B. 1126 in 

Section 382.003(9)(E) of the Texas Clean Air Act, and related sections. The criteria to 

be a qualified facility are provided in Section 382.003(E)(i) and (ii) of the Act, and are 

duplicated in the proposed regulatory definition of "modification of existing facility" in 

§ 116.10 with only minor clarification to the statutory language. The proposed definition 

of "qualified facility" uses language that is significantly different 'from the statutory and 

other regulatory language. Since the proposed definition of "qualified facility" provides 

no additional clarification, the different language should be avoided: The recommended 

changes will provide a simple cross reference to the de·finition of "modi·fication of 

existing facility" so that the exact same language will be used. If TNRCC feels that it is 

necessary to repeat the criteria in the definition of "qualified facility", then we 

recommend that the .exact language of (E)(i) and (ii) in the definition of "modification of 

existing facility" be used following the phrase, "An existing facility that either:". 

"Relatively equivalent compound" 

Relatively equivalent compound - A compound that is in the same gro1:1pfng dl:le 

to sfmf.lar eharaeteristies and e#eets as speeifiedmav be interchanged with other 

-6-
compounds in a manner approved by the executive director of the TNRCC based on 

relative characteristics and effects. 

Comments: We recommend that these changes be made to be consistent with 

the anticipated manner in which this term will be used. 

§116.116. Amendments and Alterations 

Title of Section 

§116. 116. Amendments and A!torationsChanges to Faciliti~s 

Comments: The changes are recommended to more clearly indicate the subject 

matter of the section. 

§116.116(b) 

(b) Pennit amendments. 

(1) F-or non qflalifiod faollitlos, #/1 shall be unlawful for any person to vary 

from any representation or pennit condition if the change will cause a change in the 

method of control of emissions, the character of the emissions, or will result in an 

increase in the discharge of the various emissions, unless . .. to General Application). 

(2) F-or qflalifiod faoi!fties ... to General App!ioation). 

Comments: We recommend that these changes be made to correctly implement 

the legislative intent of S.B. 1126. The legislative intent is to provide flexibility to 

qualified facilities while making no changes to the permitting requirements for facilities 

that are not qualified facilities. Our recommended addition of a new §116.116(e) below 

accomplishes this intent. The deletion of the term "non-qualified facilities" is 

recommended for the same reasons as stated in our comments on this term in the 

proposed definitions. 

§116.116(c) 

Comments: We are not recommending any changes to this section of the rule. 

The proposed rule would add a new subparagraph (C) under paragraph (c)(1). The 

intent of this addition is to clarify that a permit alteration may be used to effect a 

decrease in the allowable emissions for a facility. The primary reason a person would 

want to decrease the allowable emissions for a facility is to use the decrease in an 

intraplant trade under §116.116(e)(1). We recommend that the preamble to the 

adopted rules clarify this intent, and also emphasize that a permit alteration is one 

means to effect a reduction in allowable emissions, especially if one desires to effect a 

-7-
reduction in advance of any intraplant trade, but is not the only means. Other means 

should include incorporating the reduction in allowable emissions in the notification 

required under either §116.117(b)(2) or (3). Incorporating the reduction in the 

notification will make the reduction enforceable, because the reduction becomes a 

condition to being able to make a change to a qualified facility under §116.116(e). 

§116.116(d) 

(d) Standard exemption in lieu of permit amendment or alteration. 

Notwithstanding any other subsections (a), (b}, or (e) of this section, no permit 

amendment or alteration is required ... is amended or reneyved. 

Comments: The changes are recommended to clarify the intent, simplify the 

language, and make the subsection consistent with other changes we are 

recommending to this section. 

§116.116(e) 

(e> Changes to Qualified Facilities. Notwithstanding any other subsection of this 

section. a physical or operational change may be made to a qualified facility if the 

change does not result in a net increase in allowable emissions of any air contaminant 

and does not result in the emissions of any air contaminant not Previously emitted. 

(1 > In determining whether a change to a qualified facility results in a net 

increase in allowable emissions or the emission of any air contaminant not previouslv 

emitted. the effect on emissions of the following shall be considered: 

(A> any air pollution control method applied to the qualified facility, 

(B> any decreases in allowable emissions from other qualified 

facilities at the same TNRCC air quality account number that have received a 

preconstruction permit or permit amendment no earlier than 120 months before the 

change will occur. and 

(G) any decreases in actual emissions from other qualified facilities 

at the same TNRCC air quality account number other than facilities included in 

subparagraPh (B> of this paragraph. 

(2) In making the determination under Paragraph (1) of this subsection. 

relatively equivalent comPounds may be interchanged in a manner approved by the 

executive director of TNRCC based on relative characteristics and effects. 

(3) Persons making changes to qualified facjlities under this subsection 

shall comply with the aQf)licable requirements of§ 116. 117 of this title (relating to 

Notification of Changes to Qualified Facilities) and §116.118 of this title (relating to PreChange Qualification), 

(4> As used in this subsection. the term ''phvsical and operational 

changes" does not include: 

W construction of a new facilitv. and 

-8-
(iiJ changes to procedures regarding monitoring. determination of 

emissions. and recordkee,ping that are required by a penn it 

(q) U additional air oollution control methods are required in order for a 

facility to be a qualified facility. such additional control methods sball be at least as 

effective as the 8ACT required at the time the additional control methods are 

imPlemented. The implementation of anv additional control methods shall be subject to 

the requirements of this chaoter. 

((U lntrap/ant trading. For purposes of this subsection and § 116. 117 of 

this title. the consideration of decreases in allowable and actual emissions from other 

qualified facilities in accordance with paragraph (1) of this subsection shall be referred 

to as "intraplant trading". The decreases in allowable and actual emissions shall be 

based on emission rates for the same time periods (e.g .. hourly and annual rates) as 

the allowable emissions for the facilitY at which the change will OCCUr and for which an 

jntraplant trade is desired. Actual emissions shall be based on data that is 

representative of the emissions actually achieved from a facility during the relevant time 

period (e.g .. hourly or annual ram). lntra.plant trading shall establish new allowable 

emissions for the other qualified facility. 

Comments: We recommend the addition of a new subsection (e) to consolidate 

in one location of the rules the principal provisions of S.B. 1126 regarding the flexibility 

provided to quali·fied facilities to make physical and operational changes. This 

subsection clarifies that physical and operational changes that satisfy the criteria and 

requirements of the subsection are not subject to the requirements to obtain a permit 

amendment, permit alteration, standard exemption, or other limitations and approval 

requirements. This is the essence of the flexibility that is the legislative intent of S.B. 

1126. For the most part, the recommended language of this subsection tracks the 

language of the relevant provisions of S. B. 1126, with some changes and additions to 

clarify the legislative intent. 

Paragraph (2) incorporates the concept of "relatively equivalent compounds" into 

the determination of whether a change results in a net increase in allowable emissions 

or the emission of a new air contaminant. 

Paragraph (3) provides the cross reference to the sections of the rule that 

contain the requirements for notification and pre-change qualification. 

Paragraph (4) contains some clarification regarding the legislative intent of S.B. 

1126. Subparagraph {1) clearly states that the flexibility for physical and operational 

changes cannot be used to construct of a new facility, but can only be used to make 

changes to an existing facility. Subparagraph (2) clarifies that it is not the legislative 

intent to use S.B. 1126 to change permit requirements regarding monitoring, 

determination of emissions, and recordkeeping. Although one might argue that 

changing record keeping· at a qualified facility would not result in an increase in 

allowable emissions, and therefore appears to fit within the language of S.B. 1126, the 

intent of the legislators in drafting S.B. 1126 was that it was directed at changes such 

as production rate, throughput, process feedstocks, process operating parameters, and 

physical configuration of a facility, and was not directed at ancillary matters such as 

-9-
monitoring and recordkeeping. Subparagraph (2) will clarify this intent to preclude a 

misinterpretation of the rules. 

Paragraph (5) contains the provisions of proposed §116.118(c), which we 

recommend be relocated to this section with some changes. This paragraph states the 

legislative intent that if additional control methods are implemented at a facility for the 

purpose of making the facility a qualified facility, the additional control methods must be 

equivalent to the BACT requirements at the time the additional controls are 

implemented. In addition, we recommend that the language in proposed §116.118(c) 

that indicated allowable emissions would be after the installation of the additional 

controls should be deleted. The provisions for establishing allowable emissions are 

clearly stated in § 116.10 in the definition of "allowable emissions". 

Paragraph (6) contains some clarification regarding i~traplant trading of 

allowable and actual emissions. The paragraph in essence defines the term intraplant 

· trading as a substitute reference to the statutory provisions allowing the consideration 

of decreases in allowable and actual emissions at other qualified facilities. The 

paragraph clarifies that the emissions rates used in the intraplant have to be on the 

same time period basis as the allowable emissions for which a traded is desired (i.e., 

hourly for hourly, annual for annual, etc.). The paragraph clarifies that the 

determination of actual emissions rates for intraplant trading must be based on data 

that is representative of the emissions actually achieved over the relevant time period. 

Finally, the paragraph clarifies that if a reduction in allowable or actual emissions from 

another qualified facility is used to allow a change to occur, that reduction becomes 

binding on the facility. 

§116.117. Notification for Changes at Qualified Facilities 

Title of Section 

§116. 117. Documentation and Notification leFQf Changes at/Q Qualified Facilities 

Comments: The changes are recommended to make the title consistent with the 

language of the statute and other sections of the proposed rules. 

§116.117(a) 

I I' 1111 ff+ fl. " Tf R fl. . t . G t f I . I a, I m qt:Ja J e ~Ohues s. a maln~JR 4JG(;JfRen~;lon at the p.ant 8Jte 

s~:~ppsrtiRg thatPersons making physical or operational changes to qualified facilities 

under the provisions of §116.116(e> of this title (relating to Changes to Qualified 

Facilities> shall maintain documentation at the plant site aFe B*olfJded from 

peFFRittingdemonstrating that the changes satisfy the requirements of that 

subsectionper §116.116(b}(2) sf this title (relating ts Amendments and Alterations). 

This documentation shall include ... Parts C and 0,._ aneTh is documentation shall be 

made available to (TNRCC) upon request. 

-10-
Comments: We recommend that these changes be made incorporate a cross 

reference to our recommended new §116.116(e) and to clarify the responsibility for 

maintaining the documentation. 

§116.117(b). (c). and (d) 

(b) .".t.o notification is req1:1ired . .. I'.I:Jflf:JSt 1st of eaeh year, 

(1) Best Available Control . .. of the TNRCC; 

(2) the fae#ity has ... good eng.,ineeFing praetiees, and 

(3) the ehange iRvol'~es . .. emissions betvlfJe_n faei!ities. 

(c) Pre ehange noti-fication ... of the TI\.'RGG. 

(d) Post ehange notifieation ... of the TAlRGC. 

(bJ In addition to the documentation requirements under subsection (aJ. oersons 

making such changes to qualified facilities shall complv with the following notification 

requirements: 

(1 J Annual report. For changes to qualified facilities for which there is no 

intraolant trading in accordance with §116.116(e)(1J of this title. no notification to 

TNRCC is required at the time of the change. Instead. an annual report shall be 

submitted to the appropriate TNRCC regional office bvAugust 1 of each vear which 

shall include all changes made under §116. 116(eJ during the immediatelv oreceding 

annual period July 1 through June 30. Changes for which notification has been 

previously submitted to TNRCC under paragraphs (2J or (J) of this subsection or which 

have been incorporated into the permit for the facility need not be included in the 

annual report. The annual report shall contain the information required in paragraph (2J 

of this subsection. The annual reporting period for a TNRCC air quality account and 

the due date of the annual report may be changed with the agreement of the TNRCC 

regional office. 

(2J Post-change notification. For changes to qualified facilities for which 

there is intraplant trading in accordance with §116. 116(fi.){1 J. and such intraplant trading 

is within the limits approved by the executive director of TNRCC. notification of the 

change shall be submitted on a PI-E form to the TNRCC office in Austin within 30 davs 

after the change occurs. 

(3) Pre-change notification. For changes to qualified facilities for which 

there is intraplant trading in accordance with §116.116(e>(1J. and such intraplant trading 

is not within the limits a{){)roved by the executive director of TNRCC. notification of the 

change shall be submitted on a PI-E form to the TNRCC office in Austin before the 

cbange may occur. · The change may occur after the receipt of written notification from 

TNRCC that there are no objections. or 45 days after the notification is received by 

TNRCC. whichever occurs first. 

Comments: We recommend that these changes be made to consolidate the 

notification requirements into one subsection, clearly identify the three notification 

requirements, and to clearly distinguish the notification requirements from the pre_-

-11-
change qualification requirements. These changes should make it easier to understand 

the requirements of the rules. 

§116.117(e) 

(ek) For facilities that have received a preconstruction permit. Aa./1 ~changes 

to a permltled fasl!ityfor which the notification procedure of subsection (bJ of this section 

has been used shall be incorporated into lhat faei!ity's~ permit at such time as the 

permit is amended or renewed. For such changes that involve a special permit 

condition. TNRCC may reissue the Sf)ecial Permit condition to maintain consistencv with .. changes as documented in the notification under subsection (b) of this section. 

- Comments: The changes are recommended to clarify the meaning of the term 

"permitted facility" that is used in the proposed rule language and to clarify which 

changes are required to be incorporated into the permit. The changes also clarify that 

TNRCC may reissue special permit conditions to be consistent with a change 

notification. 

§116. 117(0 

(fd) Nothing in this ... any federal requirements. 

Comments: The change to the subsection label is recommended to be 

consistent with the relabeling recommended to subsections (b), (c), and (d). 

§116. 118. Qualified Facilities 

Title of Section 

§ 116. 118. Qf:Ja!ified FasllitiesPre-Change Qualification 

Comments: We recommend that the title of this section be changed to more 

accurately indicate the contents of the section. This section contains the requirements 

and the procedure for some qualified facilities to undergo a pre-change qualification 

review. 

§116.118(a) 

(a) if either of the following conditions exists. it will be necessary In or:clerlo 

establish that #lea facility is a...qualified facility before a Physical or oPerational change 

may be made under the notification procedure of § 116. 117 of this title (relating to 

Documentation and Notification of Changes to Qualified Facilities). pre ehange 

-12-
notilieation on a PI E foFFR shall be sf:Jbmitted to the Toxas Natural Resol:IFGe 

Conser;ation Commission (TNRCC) by oortified mal! prior to the physioa! or operational 

ohange ln tho followl-ng oases: 

( 1) the facilitv is a qualified faci/itv on the basis of BACT, and the Best 

Av-ailable Control Toohno!ogy (BACT}. requirement for the facility~ has not been 

previouslv established by the executive director of the TNRCC;...Q£ 

(2) the facility does not have aR-allowable emission~ Falee§fablished for 

an air contaminant relevant to the change in a MAERT. Pl-8 form. or PI-E form. or the 

allowable emission rateMAERT is inaooi:JfBteincornplete. A MAERT shall be considered 

to be complete if all air contaminants affected by the cbange are included and all 

emission points have been identified. 

- Comments: We recommend that these changes be made to more clearly 

describe when it will be necessary for a qualified facility to undergo a review of the 

basis on which it is qualified before the notification procedure in §116. 117 can be use to 

make a physical or operational change. 

§116.118(b) 

(b) The pre-change qualification shall be made by submitting a PI-E form to the 

TNRCC office in Austin. The facility shall be deemed qualified in accordance with the 

PI-E form physioa! or operational ohange may be made aftef!JI2Qfl receipt of written 

notification from the TNRCC that there are no objections, or 45 days after the PI-E form 

is receivedreoelpt by the-TNRCC of the registration for the ohange, whichever occurs 

. first. This notifioatlon The pre-change qualification may be submitted at the same time 

as a pre-change notification reqE:Jlrod under §116. 117(eb) of this title (rolatlng to 

Notifioat!on for Changes at QE:Jalified Faoilities) or at any other time prior to making a 

physfoa! or operational change to thea qualified facility. 

Comments: We recommend that these changes be made to clarify the 

procedure for pre-change qualification. 

§116.118(c) 

(o) If instalJfng oontro!s to beoome a qE:JaJffied faoutty, the faoility mE:Jst instaU 

BACT and the aJ.'.owable emission rate for the faoi.J!ty shall be the maximE:Jm potential 

emission rate after the installation of oontrols. If othorl;fse reqE:Jired, aE:Jthor2ation E:Jnder 

this ohapter shall be obtained prior to insta!lation of these oontro!s. 

Comment: We recommend that the provisions of proposed subsection (c) be 

deleted from this section regarding pre-change qualification and moved to our 

recommended new §116. 116(e) as paragraph (5). This will place this provision in a 

location in the rules that specifically deals with changes to qualified facilities and ~ill 

-13-
make the rule easier to understand. We are recommending changes to the proposed 

language of this subsection (c), and these changes are discussed in our comments 

regarding §116.116(e). · 

-14-
--

----... -

TUSERVICES 

November 9, 1995 

Richard L. White 

Vic~ Prt'.<idmr. Envimnm~nral Srn·ic~s 

Ms. Lisa Martin 

Texas Natural Resource ConseiVation Commission 

Office of Policy and Regulatory Development 

Mail Code 202 

P.O. Box 13087 

Austin, Texas 78711-3087 

RE: Rules Tracking Log Number 95144-116-AI 

Dear Ms. Martin: 

8 

Texas Utilities Services, Inc. submits the following comments on behalf of Texas Utilities Electric 

Company, Texas Utilities Fuel Company and Texas Utilities Mining Company concerning the 

proposed rule, 30 TAC Chapter 116. Control of Air Pollution by Permits for New Construction or 

Modification as published in the October 10, 1995 Texas Register on pages 8306-8310. The 

principal business of the Texas Utilities Company System (hereinafter referred to as TU) is the 

generation and distribution of electrical energy to north, centra~ east, and west Texas to 

approximately one-third of the population and area of the state. 

TU believes the language in the proposed rule concerning the definition of ')lew source" is not 

consistent with that of the statute. In 1971, House Bill 322 included an exemption from the 

requirement to obtain a construction permit '\\hlch states ')lo provision of this Act shall apply where 

any person, firm, partnership, or corporation has let any contract, or begun any construction for any 

addition, alteration or modification to any new or existing facility. Any contracts under this 

subsection shall have a beginning constmction date no later than six months after the effective date 

of this Act to qualify for this exemption". TU requests that the language for ')lew source" be 

changed as noted below: 

New somce facility- Any stationary source, the construction or modification ofwhich is 

commenced after August 30, 197 I; or, for those sources that had for which a contracts had 

been let prior to start before August 30, 1971, but did not stari: actaal for which the 

beginning construction until after Match 1, 1972 date. stipulated in the contract. was after 

February 29. 1972. 

TU believes the fu]] 10 year period for actual emission rates should be provided to allow for 

economic cycJes. Senate Bill 1126 did not put a restriction on the period to be considered. TU 

Energy Plaza 1601 Bryan Street Dallas, Texas 75201-3411 (214) 812-4444 Fax (214) 812-4365 
requests the language for "actual emission rate'' be changed as noted below: 

Actual emission rate -The highest annual rate (consecutive 12-month period) of emissions 

from a qualified facility achiev~d within a 120-month petiod prior to the change. The petiod 

shaH statt no eadiet than January 1, 1990. This rate cannot exceed any federal or state 

emissions limitation. 

Thank you for the opportunity to comment. 

Sincerely, 

I 

Richard L. White 
NOV-00-1'3'35 15:2'3 512 257 0202 J TUTTLE 

YIA TELECOPIER 

Ms. lisa Martin 

TNRCC, Mail Code 202 

Austin, TX 7 8711-308 7 

Novemb~ 9. 1995 

Re: Comments to Proposed Changes to 30 T.A.C Chapter 116 

Dear Ms. Martin: 

P.02 

Regarding the changes proposed to 30 T.A.C. Chapter I 1 6 (20 Tex. 

Reg. 8306, 10/10/95), 1 would like to recommend that the term "Relatively 

Equivalent Compound" (~C) should include an option. not a requirement. for a 

regulated entity to submit modeling information that would show no adverse impacts 

from the proposed changes. I understand that there are elements in the regulated 

community who oppose the mention of modeling for RECs. However, this rout~ 

should be available 'vith appropriate 11'\RCC oversight. 

An example of a possible procedure would be that t.he company seeking 

the change ;vould use the latest EPA Screen Model to demonstrate that worst-case 

grot:.nd-level impacts would be acceptable. Or, the company could revie\"\" an 

accepta.ble procedure v..ith the TNRCC modeling group and assure that they -.. ... ·ere 

using acc~ptable protocol. If the modeling showed that there were no health impacts 

greater than 1 x ESL, all parties would be assured that necessary and protective health 

concerns had been addressed. and the company should be able to implement its 

change. If the company chose this alternative, it could likely imp1c:mcnt its changes 

signific.antly more rapidly than if the change were to be deemed a non-REC change 

and be required to be processed through New Source Review Permitting. In addition, 

TNRCC resources would not be needlessly exercised. 

Thank you. 

Sincerelv, ~ 

John Tuttle 

John Tuttle, Attorney 11604 Snow Barn Cove 

Austin, Te,..os 78750 

Office: (51 2) 257·0201 

Mobile: (512) 914-2546 

Fmr" 1;1;1?' '~7-n?n? 

TOTAL P.02 
' UNION CARBIDE CORPORATION 

POLYOLEFINS DIVISION 

November 7, 1995 

Ms. Lisa Martin 

Office of Policy and Regulatory Development (Mail Code 202) 

Texas Natural Resource Conservation Commission 

P. 0. Box 13087 

Austin, Texas 78711-3087 

VIA FAX (512) 239-5687 

Re: Rules Tracking Log #95144-116-AI 

Comments on Proposed Changes to Regulation VI (Texas Register- October 10, 1995) 

Conunenter =Russell A. Wozniak of the Union Carbide Seadrift Plant- Seadrift, Texas 

TNRCC Account CB-0028-T · 

Dear Ms. Martin: 

The Union Carbide Seadrift Plant, located in Calhoun County, has the following comments on the 

October 10, 1995 proposed changes to Regulation VI for TNRCC's consideration: 

Portion of Proposed Re211Iation Comment for Consideration 

Section 116.10 - General Definitions - Definition TNRCC uses the phrase "prior to the change" in 

of Actual Emission Rate (1st paragraph) this definition and in other definitions. The 

meaning of this phrase needs to be clearly 

understood. Does it mean prior to commencing 

construction on any change or does it mean 

actually emitting at higher emission rates (i.e. 

starting up)7 In some cases, there may be a 6 to 

12 month gap between these two dates. 

8 

Section 116.10 - General Definitions - Definition TNRCC uses the phase "federal or state emissions 

of Actual Emission Rate (I st paragraph) limitation". The meaning of this phrase needs to 

be clarified. UCC suggests the following wording 

for the last sentence. "This rate cannot exceed 

any emission limit established in a Federal or 

State air permit or in Federal and or State air 

pollution regulations. 
Portion of Proposed ReEUlation Comment for Consideration 

Section 116.10 - General Definitions- Definition The definition for a qualified facility is clear. 

of Actual Emission Rate - Allowable Emission However, TNRCC needs to define in Regulation 

Rate for a Qualified Grandfathered Facility - VI what the allowable emission rate is for a nonParagraph (C) qualified facility. A variety of guidance memos 

continue to leave the regulated community 

confused regarding what the allowable emission 

rates are for these types of facilities. 

UCC suggests that TNRCC develop such a 

definition for non-qualified grandfathered 

facilities, and incorporate it into Regulation VI. 

Such a definition will begin to resolve a very 

confusing issue for the regulated communi~ 

Section 116.10 - General Definitions -Definition TNRCC uses the term "facility", and then 

Modification of Existing Facility - Exemption (E) proceeds to discuss changes that do not result in a 

net increase in allowable emissions from the 

facility. The term facility, as defined in the Texas 

Clean Air Act, means a discrete or identifiable 

structure, device, item etc. (i.e. one tank or one 

emission point). UCC suggests that TNRCC 

clarify this language such that it is clear that 

netting between emission points in a given 

operating unit or plant is allowed as long as each 

of these points meets certain criteria. Again, the 

term facility lends itself to just one emission point 

or~iece of~uipment. 

Section 116.10 - General Definitions - Definition UCC strongly urges TNRCC to prepare a 

Modification of Existing Facility- Exemption (E) document that is available to the regulated 

(ii) community which discusses what the BACT 

requirements were for facilities over the last 10 

years so that each company does not have to 

conduct a research effort to obtain this 

information. The agency should consider making 

this information available on the TNRCC bulletin 

board. Also, the agency should only focus their 

efforts on the more common BACT issues such as 

NOx controls for Boilers, control requirements for 

flares and fabric filters etc .. 
Portion of Proposed Re211lation Comment for Consideration 

Section 116.10 - General Definitions- Definition TNRCC should allow operating units that have 

of Qualified Facility recently undergone the permit renewal process, 

and that have updated the permit conditions to 

BAcr or near BAcr levels to be considered as 

"Qualified Facilities" eligible to use the 

advantages of this particular rulemaking. For 

example, UCC has recently renewed a number of 

permits and has allowed these permits to be 

upgraded to current BAcr or near current BACT 

levels in most cases. 

The agency should be able to rule on these matters 

on a case-by-case basis by.reviewing the existing 

permit conditions to see if at least 10 year old 

BACf requirements are in place. 

Section 116.10 - General Definitions -Relatively TNRCC should try to simplify this most 

Equivalent Compound complicated issue. UCC suggests that the agency 

establish 3 or 4 levels of chemical groupings for 

the purposes of netting. The basis for the 

groupings could be the short-term ESL's for each 

air contaminant For example, group 1 could be 

ESL's < 10 ppb. Group 2 ESL's between 10 and 

100 ppbv. Then, the agency should allow 

emission netting among various air contaminants 

as long as the emis~ion rate of the more impacting 

chemicals does not increase (i.e. emission rate of 

Group 1 chemicals cannot be greater than it was 

prior to the change, but emission rate of Group 2 

could be if the project resulted in an overall 

emission decrease). 

Section 116.117 Notification for Changes at UCC feels that an annual report of physical and 

Qualified Facilities- Paragraph (b) operational changes is not needed under 

paragraph (b). The rule should just require 

documentation for the life of the change to be kept 

at the plant site of such changes. Should the 

TNRCC want a copy of this information, they 

could simply request it as nc~Cded. 

Should TNRCC decide that an annual report is 

necessary, UCC suggests that the regulated 

community provide this information to a central 

office in Austin versus the Regional Offices. 

These reports should not go to the Regional 

Offices due to the burden on these staffs already. 

Also, UCC suggests that the due date be January 

31st, and that the report cover changes for the 

previous calendar year. 

Section 116.117 Notification for Changes at UCC suggests that TNRCC set the de minimis 

Qualified Facilities -Paragraph (c) levels at a fairly high level so that the agency does 

not receive a large number of pre-change • 

notifications. 
Portion of' Proposed Reeulation Comment f'or Consideration 

Section 116.117 Notification for Changes at UCC suggests that TNRCC consider no postQualified Facilities- Paragraph (d) change notification for changes involving trading 

below the deminimis level." UCC suggests that the 

regulated community simply keep records of the 

trade. Paragraphs (a) and (b) would have to be 

slightly modified to accommodate this suggestion. 

General Comment TNRCC should establish a small section of permit 

engineers to work on pre-change notifications, 

and on some of the BACf issues raised in this 

proposed rule. A section. similar to the NSR 

Standard Exemption Group, would help both the 

agency and the regulated community with these 

new rules. 

Please contact me at (5 12) 553-2920 with any questions you have regarding our comments. Thank you 

for consideration of these comments. 

R. A. Wozniak 

Sr. Environmental Engineer 

Environmental Protection Dept 
Central and South West Services, Inc. 

1616 Woodall Rodgers Freeway 

P.O. Box 660164 • Dallas, Texas 75266-0164 

November 10, 1995 

Ms. Lisa Martin 

Texas Natural Resource Conservation Commission 

Office of Policy and Regulatory Development 

Mailcode 202 

P.O. Box 13087 

Austin, Texas 78711-3087 

Transmittal: By Facsimile 

RE: Comments on Proposed Rulemaking 

30 TAC Chapter 116 

Control of Air Pollution by Permits for New Construction or Modification 

Dear Ms. Martin: 

8 

Central and South West Corporation (CSWC) is a public utility holding company that is 

headquartered in Dallas, Texas. CSWC has four electric operating subsidiaries: Central 

Power and Light Company (CPL), Public Service Company of Oklahoma (PSO), 

Southwestern Electric Power Company (SWEPCO), and West Texas Utilities Company 

(WTU). These companies provide electric service to more than four million people in a 

widely diversified area covering 152,000 square miles. This area is the second largest 

served by any electric utility system in the United States. Three of these operating 

companies (CPL, WTU, SWEPCO) have service territories with facilities located in 

Texas. 

Central and South West Services, Inc. (CSWS), a subsidiary of CSWC, on behalf of its 

electric utility companies, submits the following comments in response to the Texas 

Natural Resource Conservation Commission's (TNRCC) request of October 10, 1995, 

located in the Texas Register, 20 TEXREG 8306-8310. 

CSWS commends the TNRCC's effort to streamline the regulatory process by revising 

the definition of modification to allow facilities minimal impact to operations when 

facility modifications occur. CSWS also appreciates the opportunity to represent the 

electric utility's concerns during the development of the proposed regulations. 

Primarily, the TNRCC is urged to develop a definition for grandfather rate for nonqualified facilities. Originally, the definitions for actual and presumptive grandfather 

A Member of the Central and South West System 

Central Power and Light Company • Public Service Company of Oklahoma • Southwestern Electric Power Company 

Transok, Inc. • West Texas Utilities Company • CSW Energy, Inc. 
rates were included in 30 TAC 122 (Regulation XII), Federal Operating Permits. 

However, the TNRCC and industry's Title V Planning Committee have proposed to 

remove the grandfather definition and requirements from Regulation XII. 

Many industries, including the electric utilities, are looking for guidance in determining 

grandfather rates for facilities that do not meet the definition of "qualified" per the 

referenced proposed rulemaking. For non-qualified grandfathered facilities, determining 

if planned facility "modifications" invoke the permit requirement can be difficult. 

Typical operating rates for a power plant can significantly vary from year-to-year, based 

on energy demand, fuel prices, etc. Utilizing a "grandfather rate" for the basis of 

determining if facility modifications require a permit would remove a great deal of 

uncertainty and burden. In addition, compliance determinations and certifications are a 

substantial portion of the Federal Operating Permit (FOP) application. If a grandfather 

rate definition for non-qualified facilities existed, compliance determinations can be 

made more accurately and directly. 

CSWS recommends that a definition of grandfather rate for non-qualified facilities be 

included in the referenced rulemaking. Currently, the proposed rulemaking contains a 

grandfather rate definition for the natural gas industry that is based on the emissions 

associated with operations at the maximum design capacity. CSWS considers this 

definition to be appropriate for non-qualified grandfathered acid rain units. 

CSWS appreciates the careful consideration that the TNRCC will give to the above 

referenced comments and the opportunity to provide our input on the proposed 

rulemaking. 

Should you have any questions, please do not hesitate to contact me at (214)777-2896. 

Sincerely, 

q(mw./IIJO..~ Kathleen A. Young \ 0 

Senior Project Administrator 

CSWS Environmental Permitting 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted by 

No oral comments were received 
eh_a.nTI 'l /It -58 I J :J. C:. 

Public Hearing Registration 

Texas Natural Resource Conservation Commission -

Location: ~ Date: 720v~ t/ 19 

N arne & Mailing Address Representing Making Oral 

Presentation 

(circle one) 

~dd~b a~r(s~~ Yes e 

1 7,.4'1::/ r\1. ~.f.,<.~.{ £~>-.;y IJ (/ I) 

Ru- D~Vv~~::t .S:v; Q IZ.C.C . r:.-~ ;· +r ~ 5111 fcv-t h rJAc 'D~I(a.; 

Yes ~ 1 T'f. 7~-Vf.J 

/?J, <HA-~'- w~"~ / 'l.. .P.'o.8c.J<. 3"750 

8-Htr~rc ••. ,v,rx 77S2Z. C'lt,,'Y..CN Ct:.. / 

v. ::;.A. Yes ~ 

I Yes No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 
EVALUATION OF

TESTIMONY
Texas Natural Resource Conservation Commission 

To: 

Thru: 

From: 

Subject: 

INTEROFFICE MEMORANDUM 

The Commissioners Date: 

Chief Clerk's Office 

Beverly Hartsock, Deputy Director (pi Office of Policy and Regulatory Development 

January 19, 1996 

Docket No. 95-1419-RUL. Consideration for adoption of amendments to 30 TAC 

Chapter 116, Subchapter A, concerning Definitions, and Subchapter B, concerning New 

Source Review Permits. The Texas Natural Resource Conservation Commission 

(TNRCq permit amendment and alteration criteria and procedures are being modified 

pursuant to Senate Bill 1126 (74th Legislature, 1995). The modified language will 

implement Senate Bill 1126, which allows certain facilities to make changes without 

requiring prior authorization. The proposal was published in the Texas Register on 

October 10, 1995 (20 TexReg 8306). 

In the 74th Legislature, Senate Bill 1126 (SB 1126) amended the Health and Safety Code to allow 

physical and operational changes at qualified facilities without the necessity of obtaining an air quality 

permit or undergoing a complete air quality review. Specifically, SB 1126 amended the following: 

§382.003(9) by adding three additional exemptions to the definition of modification; §382.0512 by 

establishing additional considerations the TNRCC must weigh when determining if there has been a 

modification at a qualified facility; and §382.0518 to reference permit amendments. 

Revisions to §116.116, concerning Changes to Facilities, establish the criteria by which changes at 

qualified facilities may be made without triggering the requirements for obtaining a permit, permit 

amendment, or permit alteration. To make the requirements easier to understand, new §116.116(e) 

consolidates in one location the principal provisions which cover changes made to qualified facilities. 

These provisions include the methods for determining the net effect of emissions increases and decreases, 

compound interchanges, and intraplant trading of emissions. This section explicitly excludes the 

construction of new facilities or the lessening of controls from consideration under these new provisions, 

since neither was intended to be included under SB 1126. It also requires facilities to install current Best 

Availability Control Technology if the purpose of the installation is to become a qualified facility. 

Revisions to § 116.117, concerning Documentation and Notification of Changes to Qualified Facilities, 

establish the requirement for recordkeeping of all changes made under the adopted § 116.116(e) at the 

facility and the types of notification associated with specific scenarios. Section 116.117(a) requires that 

the records be maintained on-site and that they be presented to the TNRCC upon request in order to 

properly inspect the changes made at the facility. Section 116.117(a) also identifies the type of 

information to be included in these records. There are three types of notification required under 

§ 116.117(b) for changes to facilities: an annual report, which covers the previous year's changes not 

notified by the other two means; post-change notification, which covers changes for which there was an 

intraplant trade of emissions below the reportable limit; and pre-change notification, which covers 

intraplant trades above the reportable limit. The reportable limit has been established as a screening 
To: The Commissioners 

From: Beverly Hartsock 

January 19, 1996 

Page 2 

approach to allow the commission an opportunity to review certain intraplant trades. Section 116.117(d) 

was established to replace permit alteration procedures for those permitted facilities making changes 

pursuant to § 116 .116( e) that would result in a violation of a permit special condition. This subsection 

requires a permit holder to identify the permit special conditions that are made invalid by a change made 

pursu~t to § 116 .116( e) and the necessary revision to the special condition or desire to remove the special 

condition from the permit. 

Revisions to §116.118, concerning Pre-change Qualification, provide the conditions under which a facility 

must establish with the TNRCC that the facility is qualified. This section directs the facility to submit 

documentation describing the basis for qualification. 

New §116.112, concerning Distance Limitations, relocates the current rule language from §116.117 to 

this new section. 

The proposed §116.119, concerning Demonstrating Compliance with Allowable Emission Rate, is 

recommended to be withdrawn. Such a recommendation has been made because the TNRCC already has 

the authority to require such demonstrations and to determine the appropriate methodology of 

demonstrating compliance. 

A total of 18 parties from industry, environmental, governmental, and public interests submitted written 

testimony on the proposal. Most of the comments were in support of the rule proposal. One commenter 

requested that the proposal be completely withdrawn. 
EVALUATION OF TESTIMONY 

The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments to §116.10, 

concerning General Definitions, and §116.116, concerning Changes to Facilities; the repeal of 

§116.117, concerning Distance Limitations; and new §116.112, concerning Distance Limitations, 

§116.117, concerning Documentation and Notification of Changes to Qualified Facilities, and 

§ 116.118, concerning Pre-change Qualification. Sections 116.10, 116.116, 116.117, and 116.118 are 

adopted with changes to the proposed text as published in the October 10, 1995, issue of the Texas 

Register (20 TexReg 8306). The repeal and § 116.112 are adopted without changes and will not be 

republished. Section 116.119 is withdrawn by the TNRCC. 

The TNRCC permit amendment and alteration criteria and procedures are being modified pursuant to 

Senate Bill 1126 (74th Legislature, 1995). The modified language will implement Senate Bill 1126 

(SB 1126) to allow certain facilities the ability to make changes without requiring prior authorization. 

Revisions to §116.10, concerning General Definitions, amend the current definition of new source 

(now new facility) and add the proposed new definitions for actual emissions, allowable emissions, 

Best Available Control Technology (BACT), facility, grandfathered facility, maximum allowable 

emission rate table, modification of existing facility, qualified facility, and source. The proposed 

definition for non-qualified facility was deleted as unnecessary from the adopted rule. The proposed 

definitions for relatively equivalent compound and net increase in allowable emissions were also 

deleted, however the concepts have been incorporated into the adopted §116.116(e). Definitions for 

1 
grandfathered facility, facility, and source were added to the rule to clarify the meanings of these 

terms. 

Revisions to §116.116, concerning Changes to Facilities, establish the criteria by which changes at 

qualified facilities may be made without triggering the requirements for obtaining a permit amendment 

or permit alteration. To make the requirements easier to understand, new § 116.116(e) consolidates in 

one location the principal provisions which cover changes made to qualified facilities. These 

provisions include the criteria for facility qualification and the methods for determining the net effect 

of emission increases and decreases, compound interchanges, and intraplant trading of emissions. 

This section explicitly prohibits the construction of new facilities or the lessening of controls since 

neither was intended to be included within the flexibility intended under SB 1126. It also requires 

facilities to install current BACT if the purpose of the installation is to become a qualified facility. 

Revisions to § 116.117, concerning Documentation and Notification of Changes to Qualified Facilities, 

establish the requirement for record keeping of all changes made under the adopted § 116 .116( e) at the 

facility and the types of notification associated with specific scenarios. Section 116.117(a) requires 

that the records be maintained on-site and that they are presented to the TNRCC upon request in 

order to make proper inspection of the changes made at the facility. Section 116.117(a) also 

identifies the type of information to be included in these records .. There are three types of notification 

required under §116.117(b) for changes to facilities: an annual report, which covers the previous 

year's changes not notified by the other two means; post-change notification, which covers changes 

for which there was an intraplant trade of emissions below the reportable limit; and pre-change 

notification, which covers intraplant trades above the reportable limit. The reportable limit has been 

established as a screening approach to allow the commission an opportunity to review certain 

2 
intraplant trades. Section 116.117(d) was established to provide another method, in addition to 

permit alteration procedures, for those permitted facilities making changes pursuant §116.116(e) that 

would result in a violation of a permit special condition. This subsection requires a permit holder to 

identify the permit special conditions that are made invalid by a change made pursuant §116.116(e) 

and denote the necessary revision to the special condition or desire to remove the special condition 

from the permit. 

Revisions to §116.118, concerning Pre-change Qualification, provide the conditions under which a 

facility must establish with the TNRCC that the facility is qualified. This section directs these 

facilities to submit documentation describing the basis for qualification. 

New §116.112, concerning Distance Limitations, relocates the current rule language from §116.117 

to this new section. This recommendation is made to allow for a more logical presentation of 30 

TAC Chapter 116. 

The TNRCC has prepared a Takings Impact Assessment for these rules pursuant to the Texas 

Government Code, §2007.043. The following is a summary of that assessment. The specific purpose 

of the rule is to provide for changes in permitting requirements for existing qualified facilities as 

allowed by Senate Bill 1126. The rules will substantially advance this specific purpose by making the 

necessary revisions to current regulations covering changes to facilities and by developing new 

definitions that assist in the implementation of these changes. Further, the amendments incorporate a 

new mechanism for notification to the TNRCC of changes at facilities qualified for the flexibility 

provided by SB 1126. Promulgation and enforcement of these rules will not affect private real 

property which is the subject of the rules because the permit amendment and notification processes are 

3 
considered operational not capital cost borne by the affected parties of these rules. 

A total of 18 interested parties submitted written testimony on the proposal: Eastman Chemical 

Company (Eastman); Exxon Company USA (Exxon); Houston Lighting and Power (HL&P); Phillips 

66 Company; Texas Chemical Council (TCC); Texas Mid-continent Oil and Gas Association 

(TMOGA); EC-Applied, Inc.; American Electronics Association (ABA); Central and South West 

Services, Inc. (CSWS); Enron Operations Corporation (Enron); Amoco; and Union Carbide 

Corporation (Carbide). Brown McCarroll & Oaks Hartline (Brown) and Texas Utilities Services, Inc. 

(TU Services) generally supported the intent of the proposed revisions, but suggested changes or 

clarifications. An individual submitted an option for determining "Relatively Equivalent Compound." 

The United States Environmental Protection Agency (EPA) submitted comments on the proposal and 

items of concern it suggested be addressed in the public record, but did not indicate support or 

opposition to the proposal. The City of Dallas submitted comments, but did not support or oppose 

the proposal. Galveston-Houston Association for Smog Prevention (GHASP) requested that the entire 

proposal be withdrawn. 

General Comments. Carbide suggested that a small section of permit engineers be created to work 

on pre-change notifications, and on some of the BACT issues. 

The TNRCC recognizes that staff resources will be necessary to review requests related to this 

rulemaking. 

Exxon, Enron, and Carbide suggested the TNRCC quickly move to address allowable emissions from 

grandfathered facilities that are not considered qualified. This action will impact the way that 

4 
facilities will be treated under the operating permits program. CSWS wants this issue addressed in 

this rulemaking and also stated that the grandfathered rate definition for the natural gas industry 

would be appropriate for non-qualified grandfathered acid rain units. Carbide suggested that TNRCC 

action on this issue is needed to resolve confusion for the regulated community. 

Currently, grandfather rates are defined in 30 TAC Chapter 122 for the purposes of 

determining potential to emit for Title V applicability. Discussions have taken place in which it 

has been suggested that this language be moved from Chapter 122 to 30 TAC Chapter 116. This 

suggested change, however, is outside the scope of this rule proposal. The TNRCC appreciates 

the concern raised by the commenters. 

Phillips 66 suggested another comment period due to the complexity of the rules and the overlap 

between major and minor New Source Review and Prevention of Significant Deterioration. 

This proposal does not affect Prevention of Significant Deterioration applicability or review. It 

is necessary to enact this proposal as soon as possible in order to implement the changes to the 

statute that resulted from the last legislative session. An additional comment period would serve 

to delay this effort. 

TMOGA/TCC provided language for a new subsection, §116.116(e), which covers changes to 

qualified facilities. The purpose of this subsection is to consolidate in one location the principal 

provisions of SB 1126 regarding the flexibility provided to qualified facilities to make physical and 

operational changes. These provisions are: net increases in allowable emissions; air contaminants not 

previously emitted; notification requirements; excluded changes; additional controls for qualification 

5 
purposes; and intraplant trading of allowable and actual emissions. Brown recommended that similar 

changes be made. 

The TNRCC accepts the proposed change and feels that the fonnat is easier to understand. 

However, it should be noted that the language has not been accepted verbatim. 

Eastman, GHASP, EPA, and EC-Applied, Inc. requested that the guidance document undergo public 

review and comment or at least, the public should be given adequate notice prior to changes to the 

guidance document. 

The TNRCC intends to make draft versions of the guidance document available on the TNRCC 

bulletin board. Concerns and comments will be accepted on the guidance document. 

Amoco, Enron, AEA, Exxon, and HL&P supported the recommendations of TMOGA/TCC. 

The TNRCC acknowledges the support from these groups for the changes recommended by 

TMOGA. 

§116.10. General Definitions comments are as follows. Phillips 66 requested that the TNRCC 

explain the interaction of §116.10 definitions with those in §116.12 specifically for terms such as 

"actual emissions" and "actual emissions rate." 

The newly adopted definitions in §116.10 are relevant in all sections of Chapter 116 with the 

exception of §116.150, concerning Nonattainment Review as is the case for the current 

6 
definitions in §116.10. The definition of "actual emissions" in §116.10 , however, restricts its 

applicability to § 116.116(e). 

TMOGA/TCC and an individual suggested a definition for grandfathered facility from the Texas 

Clean Air Act (TCAA) for inclusion in the rule, since it is a tenn used within other parts of the 

proposed rule. 

A defmition for grandfather facility has been included. 

Brown recommended that the TNRCC add statutory definitions for "facility" and "source" to the rule 

proposal. 

The TNRCC agrees and has made the changes to the proposal. 

Regarding the definition of actual emissions rate, Carbide suggested that the TNRCC clarify the 

phrases "prior to change" and "federal or state emissions limitations." 

"Change" is a term that is currently used in the regulations and is intended to indicate that 

requirements are to be met prior to commencement of construction of a' physical change or prior 

to making an operational change. Federal and state emission limitations would include those 

limits in federal or state permits or any limit that may apply to a facility in a state or federal 

regulation. The TNRCC does not feel that a change is needed to the proposed language to make 

these terms clear. 

7 
TMOGA/TCC suggested word changes and additions to clarify the definition and make it more 

consistent with the statute and implementing rules. TMOGA/TCC also suggested this definition apply 

only to intraplant trading involving actual emissions from other qualified facilities. Further, 

TMOGA/TCC recommended that the TNRCC add language to the rule which requires intraplant 

trades to be expressed in the same time periods, e.g., pounds per hour or tons per year. 

The TNRCC agrees and has made the proposed changes. 

Brown requested the deletion of the term "rate" since the language of the statute does not use the 

term. Brown also suggested that the TNRCC add language to the rule which requires intraplant trades 

to be expressed in the same time periods on emissions. 

The TNRCC agrees and has made the proposed changes. 

TMOGA/TCC, TU Services, and Eastman recommended that the January 1, 1990, restriction in 

determining actual emissions be deleted. Eastman supports the flexibility offered by the 120-month 

window for determining actual emission rates from qualified facilities with no permitted allowable 

emission rate. 

The TNRCC agrees and has deleted the appropriate language. 

GHASP disagreed with the approach for determining actual emission rates which allows facilities to 

use the highest annual rate for anytime in the past ten years. 

8 
The statute does not specifically speak to the relevant time period for establishing a facility's 

actual emissions. The statute does use a 120-month period for qualifying facilities based on 

control technology. Some time period must be used, and therefore the TNRCC feels it is 

reasonable to follow the 120-month precedent established in the statute. 

Regarding the definition of allowable emission rate, the City of Dallas raised a concern that the rule 

proposal will reduce agency awareness of emission changes on a timely basis. 

Notification is required for changes that result in intraplant trading. This provides adequate 

notice of significant emission changes. Other changes either result in insignificant emission 

trading or do not exceed previously established allowables. Records of these changes must be 

maintained on-site and must be made available to the TNRCC upon request. Additionally, 

changes that don't require notification are required to be reported to the TNRCC annually. 

GRASP opposed allowing facilities to maintain their maximum allowable emission rate after 

implementation of controls. 

This rule language is intended to implement the statutory change that allows the consideration of 

reductions made in determining if an increase in emissions had occurred. 

Brown requested the removal of the term "rate" since the language of the statute does not use the 

term and recommended language to clarify the definition. 

The TNRCC agrees and has made the proposed change. 

9 
Regarding the definition of allowable emission rate for a qualified grand fathered facility, 

TMOGA/TCC suggested changes and additions to clarify the meaning of the definition and make it 

more consistent with the statute and implementing rules. For grandfathered facilities installing BACT 

to become a qualified facility, TMOGA/TCC recommended that 10% of pre-control maximum annual 

emissions rate be added to the facility's allowable emission. 

The TNRCC agrees and has made the proposed change. 

The City of Dallas questioned whether this definition was intended to include the application of 

control technology for allowable emission rate determinations. 

Yes, the intent was to reflect that a reduction in emission potential had occurred as a result of 

the additional controls. 

Regarding the definition of allowable emission rate for a qualified facility voluntarily installing 

controls, the EPA requested that the TNRCC explain the approach of allowing a facility to keep its 

pre-control allowable emission rate when the facility's potential to emit would be lower after the 

voluntary installation of controls. Further, the EPA requested that the rule specify that reductions 

from the old allowable emission rate not be used to satisfy provisions for netting and offsetting 

associated with permitting for Prevention of Significant Deterioration (PSD) and nonattainment (NA) 

areas. 

The purpose of this rulemaking is to implement the changes to state New Source Review as a 

result of SB 1126. Senate Bill 1126 allows a facility to install controls at the same time physical 

10 
and operational changes are made in order to avoid a "net" increase in allowable emissions. 

The TNRCC recognizes, however, that some of these changes that are now exempt from the 

state definition of modification may require federal PSD or NA review. The adopted rules 

require that a facility verify that a change will not require federal review. This rule does not 

affect federal permitting applicability or requirements. It is TNRCC's position that the use of 

reductions to net out of state New Source Review does not affect it's creditability for federal 

review. Therefore, any reduction in emissions that may result at a source is available for netting 

and offsetting only if it satisfies the creditability criteria established under the PSD and NA 

regulations. 

Regarding the definition of BACT, TMOGA/TCC suggested that BACT would be expressed better as 

an emissions limitation rather than a specified control technology. 

The acronym BACT was included simply to be substituted for the phrase as defmed. The term 

is not intended to imply a particular control technology, but rather the best level of control that 

can be achieved considering technical practicability and economic reasonableness. An emissions 

limitation is established based on the application of BACT which is reflected as an allowable 

emission rate in a permit. The TNRCC does not feel that it is appropriate to define BACT as an 

emissions limitation due to various factors that determine each individual facility's emissions 

limitation. 

The EPA recommended that the TNRCC modify the definition of BACT to make it consistent with 

the federal definition or explain the justification for the difference. Further, EPA suggested the 

11 
TNRCC indicate how the different definitions are equivalent. 

The tenn "BACT" added as part of this rule amendment is consistent with its use in the TCAA, 

existing TNRCC regulations, the State Implementation Plan, in the PSD delegation agreement, 

and in the annual grant agreements with the EPA. The TNRCC believes this represents a long 

historical understanding of how BACT is characterized in Texas. 

Brown suggested language to correct the proposed definition since the term being defined is used 

within the definition. 

It was not the intention of staff to defme BACT, as a specific level of control, but rather to 

define the acronym BACT as it is used by the TNRCC. 

Regarding the definition of maximum allowable emissions rate table (MAERT), TMOGA/TCC and 

Brown suggested language changes to specify that the maximum allowable emission rate table is that 

which is issued with a preconstruction permit. 

The TNRCC agrees and has made proposed change. 

Regarding the definition of modification of existing facility, Carbide and Phillips 66 suggested that 

TNRCC more clearly define the term "facility" because there is confusion regarding the ability to net 

emissions. Carbide requests that the TNRCC prepare a BACT guidance document and make it 

accessible through various media. 

12 
The TNRCC agrees and has added the statutory definition for the tenn "facility" to the 

definitions in §116.10. The TNRCC is in the process of developing a guidance document that 

will explain to the regulated community how to detennine if a physical or operational change at 

a facility is exempt from the definition of modification consistent with SB 1126. As part of this 

guidance document, the TNRCC will publish a list of historical BACT requirements and will 

provide guidance on netting of emissions between facilities. The document will be available 

through the TNRCC electronic bulletin board and in hard copy upon request. 

Phillips 66, EPA, and GRASP requested more clarity on the term "insignificant increase"and the 

basis for its determination. 

The tenn "insignificant increase" is an existing tenn under the definition of "modification" in 

the TCAA. The TNRCC is not proposing to change the definition or undertake a new 

interpretation of the existing statute. TNRCC's current mechanism for authorizing insignificant 

sources is through standard exemption. As of yet, there is no established level of emissions that 

the TNRCC considers to be "insignificant." 

TMOGA/TCC and Brown suggested updating the language to reflect the current organization of 

TNRCC. TMOGA/TCC and Brown suggested language to clarify that facility qualification on the 

basis of BACT applies to those facilities that do not satisfy the criteria for qualification on the basis of 

a permit, permit amendment, or standard exemption. Brown recommended that language be deleted 

to remove redundancy with the definition of BACT. 

The TNRCC agrees and has made the proposed changes. 

13 
Eastman suggested that other parts of Chapter 116 referencing standard exemptions as modifications 

be changed to be consistent with the definition of "modification of existing facility" in §116.10. 

Eastman also requested that the definition of modification also be changed so that an increase in the 

hours of operations at a permitted or exempted facility would not be considered a modification if the 

additional operating time was previously authorized. Eastman also suggested that the definition be 

changed as to exclude relatively equivalent compounds from those air contaminants judged not to be 

previously emitted. 

This rulemaking package is intended to implement the changes to the statute that resulted from 

SB 1126. The portion of the definition of modification that refers to standard exemptions 

existed prior to the passage of SB 1126. It is not stafrs intent to review issues related to the 

existing statute and the language in Chapter 116 dealing with standard exemptions at this time. 

Staff does not believe that the definition of modification needs to be changed to include language 

that an increase in operating hours at a permitted or exempted facility is not a modification. As 

long as the facility does not exceed previous representations regarding operating hours, under 

existing rule language, this would not be considered a modification. The language proposed for 

the definition of modification is directly from the statute. The definition of relatively equivalent 

compound has been deleted and the concept of interchanging equivalent compounds was placed 

in §116.116(e). 

The City of Dallas had a serious concern regarding how the term "insignificant increases" could be 

interpreted, especially as applied to toxic emissions. The City of Dallas suggested that the TNRCC 

apply Standard Exemption 118 requirements to these speciated chemicals. 

14 
The term "insignificant increase" is an existing term under the definition of modification in the 

TCAA. The TNRCC is not proposing to change the definition or undertake a new interpretation 

of the existing statute. The TNRCC's current mechanism for authorizing insignificant sources is 

through standard exemption as previously explained. 

GHASP indicated that documenting BACT over the past ten years would be unworkable because of 

the case-by-case approach the TNRCC took regarding BACT. 

To the extent possible, the TNRCC intends to make information available on historical BACT 

determinations. The rule prescribes in §116.118, pre-change qualification for those facilities for 

which BACT cannot be documented or that vary from the historical list. This pre-change 

qualification allows the agency to consider demonstrations made by the owner/operator that the 

facilities in question are qualified on the basis of having BACT equivalent to what would have 

been required 120 months prior to a change. 

Enron indicated that this definition could resolve the grandfathered status of natural gas facilities. 

The TNRCC agrees that the definition clarifies the types of changes these facilities can make 

without those changes being considered a modification. 

Regarding the definition of net increase in allowable emissions, TMOGA/TCC recommended the 

removal of this term with the provision that this language be included in their proposed §116.116(e). 

The TNRCC agrees and has made the proposed change. 

15 
Phillips 66 requested clarification on which baseline levels of emissions to use when calculating the 

net effect of a change to an existing facility. 

In determining if a modification has occurred, there must first be a physical or operational 

change. A qualified facility is not modified if a physical or operational change does not result in 

an increase above its authorized allowable. Likewise, a facility is not considered modified if 

sufficient decreases can be found from other qualified facilities so that a net increase in 

allowable emissions is avoided. If the facility at which the reduction occurs is qualified by 

pennit, then the reduction must come from the allowable emission rate of that facility. If the 

facility at which the reduction occurs is qualified by BACT or standard exemption, then 

reductions must come in the form of actual emissions. Actual emissions, for purposes of netting 

under §116.116 (e)(l), are defined as the highest level of emissions achieved within 120 months 

prior to a change. 

The EPA recommended that any decreases used for netting purposes not be relied upon in a PSD 

permit or NA permit, and not used in the demonstration of attainment or reasonable further progress 

in the State Implementation Plan. The EPA suggested that the netting window begin when the facility 

notifies the TNRCC of the proposed change and end when the proposed increase occurs. The EPA 

requested that TNRCC consider the inclusion of other non-project increases which occur in the netting 

window. The EPA concurred that the TNRCC has adequately addressed the applicability of major 

sources and major modifications with respect to PSD and NA permitting requirements. The EPA 

requested that TNRCC address the effect the rule proposal will have on the Operating Permits 

Program under Title V of the Federal Clean Air Act. 

16 
It is TNRCC's position that the use of reductions to net out-of-state New Source Review does not 

affect the creditability of these reductions for federal review. Likewise, emission increases 

netting for out-of-state review purposes are still accountable in PSD/NA netting. Therefore, any 

reduction in emissions that may result at a source are available for netting and offsetting as long 

as they satisfy the creditability criteria established under the PSD and NA regulations. 

The TNRCC believes there will not be a net reduction associated with these changes available to 

be used in a demonstration of attainment or reasonable further progress in the State 

Implementation Plan. 

The TNRCC has proposed a simple netting exercise to determine if a net increase in emissions 

occurs as a result of a physical or operational change. A netting window for the purposes of this 

demonstration would unnecessarily complicate the process. Each project will require a separate 

demonstration that a net increase has not occurred, since Texas has a more narrow definition of 

facility and stricter definition of modification than the federal programs. The TNRCC does not 

see the benefit of including non-project related increases within a netting window as the EPA has 

suggested. 

The TNRCC appreciates EPA's concurrence that PSD and NA applicability has been adequately 

addressed in the rule. The TNRCC acknowledges the EPA's comment. 

The TNRCC is unsure of the exact effects of this rule given the developmental status of the Title 

V Operating Permit Program. However, if changes allowed under these rules trigger a 

requirement under the federal operation permit program for a permit or permit modification, 

17 
then those rules will govern for that program. 

Regarding the definition of new source, TMOGA/TCC and Brown reconunended that the definition of 

new source be changed to new facility and suggested language consistent with their suggested 

definition of grandfathered facilities. TU Services made similar conunents with suggested language 

for the definition. 

The TNRCC agrees to change the definition of new source to new facility to be consistent with 

the terminology used in the statute and in Chapter 116. In revising the definition of new 

facility, the TNRCC did not rely solely on the suggested language made by any one of the 

commenters, but believes that the adopted definition is consistent Wit~ the statute and the spirit 

of the comments. 

Regarding the definition of non-qualified facility, TMOGA/TCC and Brown reconunended that this 

term be deleted as unnecessary. 

The TNRCC agrees and has deleted the term "non-qualified facility." 

Regarding the definition of qualified facility, Carbide suggested TNRCC allow operating units that 

have undergone the permit renewal process to be considered qualified, especially those renewals that 

have adjusted permits conditions to BACT and near BACT. 

The TNRCC does not agree with the comment since the statute does not make such a provision. 

Control technology review is not performed at time of renewal unless there is a demonstrated 

18 
condition of air pollution. Therefore, a facility that has undergone a pennit renewal may not 

necessarily meet the requirement of having BACT equivalent to what would have been required 

120 months prior to a change. 

TMOGA/TCC and Brown recommended that TNRCC avoid using language significantly different 

from that found in the statute and suggested language to correct the inconsistency. 

The TNRCC agrees and has made the proposed changes. 

Eastman suggested that any facility which has undergone a BACT review as part of a special 

exemption authorization within the last 120 months also be considered qualified. Eastman also 

suggested that the definition be modified to allow for shutdown facilities to be creditable reductions 

when considering the impact of a change on net allowable emission levels. 

The TNRCC agrees that special exempted facilities and standard exempted facilities authorized 

under the TCAA, §382.057 within 120 months prior to a change are qualified and have revised 

the rule language appropriately. Emissions from shutdown facilities can be used to avoid a net 

increase in emissions as long as the shutdown facility would meet the criteria of being a qualified 

facility at the time of the change resulting in the emission increase. 

Regarding the definition of relatively equivalent compound, Carbide recommended this issue be 

simplified by having three to four groupings for the purposes of netting and Carbide also suggested 

the TNRCC allow for intergroup trades as long as the emission rate of the more impacting chemicals 

does not increase. 

19 
The TNRCC evaluated several approaches for determining whether a physical or operational 

change results in a net increase in allowable emissions. The adopted rule does not contain the 

tenn "relatively equivalent compound." The rule does, however, allow increases in emissions of 

individual compounds to be offset by equivalent decreases in emissions at the same or another 

qualified facility. The offset is made by the interchange of another compound in the same air 

contaminant category or an intraplant trade, which is similar to Carbide's suggested grouping. 

In addition to being in the same air contaminant category, interchanges must offset an increase 

in emissions by an equivalent reduction in emissions. The equivalence is based on a ratio of the 

effects screening level of the compounds. Interchanges may not result in a rate of emissions that 

will exceed the allowable for an air contaminant category. This method affords flexibility as 

suggested by Carbide. 

TMOGA/TCC and Brown suggested language so that the term could be modified to make it consistent 

with the practical manner in which the term will be used. 

As explained in the previous response, the tenn "relatively equivalent compound" has been 

deleted. However, the concept of offsetting emission increases by equivalent decreases is found in 

§116.116(e). This approach results in a rule that is more consistent with this approach as 

suggested by TMOGA/TCC and Brown. 

The City of Dallas requested clarification of the term "similar characteristics." The City of Dallas 

indicated that different processes using the same compound will affect the emission rate of the 

compound, thus, the TNRCC will need to take this into consideration when chemical groupings are 

determined. 

20 
The tenn "similar characteristics" is no longer in the rule due to the removal of the tenn 

"relatively equivalent compound." However, the concept of equivalence, to which the tenn 

"similar characteristics" applied, is now found in §116.116(e) and is based on effects screening 

levels. 

GHASP objected to the use of the concept because it would allow the release of toxic compounds that 

should be strictly regulated. 

The adopted rule will not allow the release of toxic compounds unchecked nor will the rule 

relieve the owner from complying with regulations governing the release of toxic compounds. 

EC-Applied, Inc. supported the proposed flexibility to create groupings which allow for facilities to 

make weekly changes to products and feedstocks without the need for permit amendments or standard 

exemptions. 

The adopted rule will allow for operational changes cited by the EC-Applied, Inc., but only if 

the change does not result in a net increase in allowable emissions. 

The individual recommended TNRCC include as an option the ability for a facility to submit 

modeling information that would show no adverse impacts from the proposed change. Eastman 

suggested the TNRCC consider the collocation of impacts screening as an alternative approach to 

evaluating the interchangeability of one compound for another. 

The TNRCC intends to allow facilities to use valid methods for determining if a change will 

21 
result in an adverse impact and is currently evaluating several options. These methods will be 

discussed in the guidance document. However, the determination of whether there has been a 

net increase in allowable emissions is limited to equivalent emission rates based on relative 

toxicity as detennined by a ratio of effects screening levels. 

AEA recommended that the TNRCC refine the definition to specifically allow the interchange of 

different compounds. 

The adopted rule will allow for the interchange of different compounds in the same air 

contaminant category as provided in §116.116(e). 

Amoco supported TNRCC's effort to incorporate this concept. 

The TNRCC aclmowledges Amoco's support. 

Section 116.116 comments are as follows. TMOGA/TCC and Brown suggested that the section title 

be changed to indicate more clearly the subject matter on the section. 

The TNRCC agrees that §116.116 pertains to more than amendments and alterations for 

permitted facilities and has made the proposed change to reflect that this section contains 

requirements for changes at existing facility, permitted or otherwise. 

TMOGA/TCC and Brown provided language for a new subsection, §116.116(e), which covers 

changes to qualified facilities. The purpose of this subsection is to consolidate in one location the 

22 
principal provisions of SB 1126 regarding the flexibility provided to qualified facilities to make 

physical and operational changes. These provisions are: net increases in allowable emissions; air 

contaminants not previously emitted; notification requirements; excluded changes; additional controls 

for qualification purposes; and intraplant trading of allowable and actual emissions. 

The TNRCC agrees and has added a new subsection as §116.116(e) to govern physical and 

operational changes at qualified facilities. This new subsection will contain the regulatory 

language to exempt certain changes at qualified facilities from permitting requirements. The 

definition of net increase in allowable emissions will be deleted from the definitions in §116.10 

and language will be added to this subsection. This new subsection will also allow for the 

interchange of equivalent compound in the same air contaminant category at qualified facilities. 

The TNRCC believes that it was the intent of the legislature to afford facilities flexibility in 

making changes. The concept of interchanging equivalent compounds is consistent with that 

philosophy. Notification of changes will be required to allow the agency the opportunity to track 

changes at facilities to ensure compliance with the rules governing changes at qualified facilities. 

Language has been added to preclude a claim that a facility would not have to comply with a 

monitoring or sampling condition under the excuse that the change does not result in an increase 

in allowable emissions or the emission of a new air contaminant. Language has also been added 

to limit trading to equivalent mass rate units. 

Brown also requested that TNRCC address in the guidance document what constitutes the interchange 

of relatively equivalent compounds "in a manner approved by the executive director of the TNRCC." 

Brown suggested language to replace "air contaminant not previously emitted" with "air contaminant 

not previously authorized to be emitted." The basis of this recommendation is that some permits have 

23 
been issued which include allowable emission rates to authorize the emissions of air contaminants that 

were not emitted upon issuance of the permit, but may be emitted in the future. 

The TNRCC intends to address in the guidance document what constitutes the interchange of 

relatively equivalent compound. The phrase "air contaminant not previously emitted" comes 

from the statutory definition of modification. For consistency, the staff recommends the terms 

closely agree with the statute. 

Regarding §116.117(b)(l), Phillips 66 suggested the word "change" be replaced with "modification." 

Phillips 66 also suggested language to clarify the term "various emissions." 

The rulemaking is intended to implement SB 1126. Phillip's suggestions address existing rule 

language and is outside the scope of this rulemaking. 

TMOGA/TCC and Brown suggested modifications that will keep the current permit amendment 

requirements of non-qualified facility changes separate from those requirements of changes made to 

qualified facilities. 

The restructuring of the rule to place all requirements related to SB 1126 in §116.116(e) 

maintains separate procedures for qualified and non-qualified facilities. 

Regarding § 116.116(b)(2), Phillips 66 suggested the word "change" be replaced with "modification." 

The TNRCC would like to clarify that these rules address two types of changes; those that are 

24 
modifications and require permit authorization and those that are not modifications. Those 

changes that do not require authorization will be required to comply with recordkeeping and 

notification requirements of §116.117 and §116.118 of the adopted rules. 

Regarding §116.116(c), TMOGA/TCC and Brown recommended TNRCC clarify in the preamble that 

the intent of §116.116(c)(l)(C) is to show that a permit alteration is one means to effect a reduction in 

allowable emissions, but it is not the only means. TMOGA/TCC and the individual also suggested 

that incorporating the allowable reduction in the notification required under § 116.117(b )(2) or (3) 

would make the reduction enforceable, since the reduction is a condition of changing a qualified 

facility under their suggested language § 116 .116( e). 

For a qualified facility, a reduction in allowable emissions may also be accomplished through the 

pre-change notification or post-notification processes in §116.117(b)(2) or (3). However, for nonqualified facilities, reduction in allowable emissions can only be accomplished through permit 

alteration. Under the alteration process, the TNRCC will re-issue a MAERT; while under the 

notification process for qualified facilities, a PI-E form must be submitted. Reductions in 

allowable emissions are enforceable because either the permit allowable has been changed and a 

new MAERT issued or a PI-E form, which established a new enforceable emission limit, has 

been submitted with the notification. Where a permitted facility submits a PI-E, the MAERT 

will be reissued. 

Regarding §116.116(c)(l), Phillips 66 suggested adding the words "required for" after "A permit 

alteration is ... " to alleviate some confusion of the proposal as written. 

25 
The rulemaking is intended to implement SB 1126. Phillips' suggestions address existing rule 

language and is outside the scope of this rulemaking. 

Regarding §116.116(c)(1)(C), Phillips 66 suggested this subparagraph be eliminated because of the 

potential volume of changes to a permit when federal requirements change. Phillips 66 also suggested 

replacement language for subsection (c) if the TNRCC continued to require a permit alteration for a 

decrease in allowable emissions. 

This provision was not meant to require that a person submit a permit alteration if a new state 

or federal regulation limited a facility's emissions below that which is stated in the MAERT since 

the rule already provides that the allowable cannot exceed a applicable state or federal emission 

limitation. The alteration language was added to allow facilities to make a voluntary reduction 

in allowable for use by qualified facilities to determine if there has been a net increase in 

allowable emissions. 

Regarding §116.116(d), TMOGA/TCC and Brown suggested that this exemption be expanded to all 

subsections in §116.116 and provided minor language changes to simplify this section. 

The TNRCC agrees that this section needs to be changed to make clear that a standard 

exemption may be used in lieu of a permit amendment or alteration, but it is not appropriate to 

include other subsections. 

Eastman stated that permit amendments or alterations should not be required for any type of change 

that does not qualify as a modification to an existing facility and provided language to be contained in 

26 
§ 116 .116( d) to this effect. 

Tills subsection presumes that a change has occurred at a pennitted facility and in lieu of 

obtaining a pennit amendment or alteration, the change is authorized through standard 

exemption. 1bis subsection was originally added to give industry flexibility to make changes 

rapidly that would otherwise require permit amendment or alteration by use of a standard 

exemption. Later these changes must be rolled into the permit. Senate Bill 1126 says that 

certain changes at qualified facilities are not modifications, and therefore do not require preconstruction authorization. Therefore, it is not appropriate to say that these changes do not 

require a standard exemption since a standard exemption is a type of pre-construction 

authorization. 

Section 116.117 comments are as follows. TMOGA/TCC and Brown suggested the title of the 

section be modified to make it consistent with the language of the statute and other sections of the 

proposed rules. 

The TNRCC agrees and has made the appropriate changes. 

TMOGA/TCC and Brown recommended that the proposed language be deleted and suggested new 

language which consolidates the proposed notification requirements under §116.117 (b)-(d) into one 

subsection. TMOGA/TCC suggested the language of these subsections be changed to clarify and 

distinguish the notification requirements from the pre-change qualification requirements. 

The TNRCC agrees and suggested changes have been made to clarify the process. Section 

27 
116.117 has been reorganized and renamed to highlight the docwnentation and notification 

requirements for changes made pursuant to §116.116(e). Pre-qualification procedures have been 

separated from the notification procedures and are contained in §116.118, concerning Prechange Qualification. In addition, a requirement for prior notification of changes that would 

conflict with an existing permit special conditions has been added. 

GHASP indicated concern regarding the lack of real time notification of changes made at a facility. 

Further, GHASP disagreed with the lack of public input into these facility modifications. 

The TNRCC believes that significant changes in emissions will be reported to the agency. The 

TNRCC believes that the legislature did not intend for these facility changes, which do not 

amount to a modification, to be subject to agency approval or public input. The public's 

opportunity for input will be at the time the facility is constructed or modified such that 

emission increases significantly above the previous allowable. 

The City of Dallas requested that the local agencies be copied on all notices to the agency as required 

in §116.117(b), (c), and (d) documentation of changes to the TNRCC. The City of Dallas requested 

that the local agencies be notified due to their enforcement responsibilities. 

The TNRCC intends to have pre- and post-change notification of intraplant trades sent to the 

central office and the annual report of all other changes sent to the regional office. This 

information will be available to the local agencies. The TNRCC is willing to work with the local 

agencies to develop a system for communication of the facility notifications. Further, the 

facilities are required to provide information regarding the change upon request of the TNRCC. 

28 
Amoco suggested TNRCC keep the notification for changes at qualified facilities as simple as possible 

and supported the notification process offered by TMOGA/TCC. 

The TNRCC believes that these rules have a simple notification process. The TNRCC has 

incorporated many of the changes suggested by TMOGA/TCC. 

Regarding §116.117(a), Exxon requested that operators be allowed to maintain documentation at the 

plant site or at the nearest manned location if the site is unmanned. 

The TNRCC recognizes the difficultly of maintaining documentation at unmanned sites and has 

added language to §116.117(a) to accommodate this request. 

TMOGA/TCC suggested language clarifying that the responsibility for maintaining documentation is 

upon the person or persons making the physical or operational change and that the documentation 

must satisfy the requirements of changes to qualified facilities. 

The TNRCC agrees with TMOGA/TCC's request, and has made the appropriate changes. 

Eastman also recommended that the documentation required to be kept on-site include that 

information relevant and necessary to demonstrate exclusion from the permit process. 

The TNRCC believes the current language requires only relevant and necessary information 

since the rule only requires that documentation contain information associated with the change. 

29 
Regarding §116.117(b), Carbide, Phillips 66, and Eastman requested that the annual report be 

deleted. Eastman stated that the annual report is unjustified, since the changes included in an annual 

report are not considered modifications under SB 1126 and these changes will also be incorporated 

into the permit upon renewal or permit amendment. Phillips 66 asked that the annual report be 

eliminated because the records will be available at the facility and subsequently incorporated into the 

permit upon renewal. 

The TNRCC believes that the annual report benefits both industry and the agency by setting up 

a mechanism to track changes in order to evaluate whether a permit action should have been 

required. This is intended to minimize the time both the inspector and plant personnel must 

spend during site investigations. The TNRCC envisions that this process wiD eliminate potential 

disagreement between the agency and the plant as to whether permit violations have occurred 

and that at time of permit renewal this information will be readily available for incorporation 

into the permit. 

Carbide also requested that the documentation of a change be kept only for the life of the change and 

that any information regarding these changes may be obtained through a request of the plant. Carbide 

suggested that the annual reports be sent to the central office to avoid overburdening the regional 

office staff and that annual reports cover a calendar year. 

The Tl\TRCC believes that it is important to maintain documentation of the change as required in 

the rule to ensure that the commission has the ability to verify that facilities are making changes 

appropriately. Maintaining documentation for a period longer than the life of the change will 

prevent not having necessary documentation if a change is questioned at a later date. The 

30 
adopted rule requires that annual reports be received by the regional office by August 1 to aid 

in proper inspection of the facility by the TNRCC or local agencies. The August 1 deadline for 

annual reports has been selected to coincide as much as possible with the State Implementation 

Plan inspection schedule. 

Phillips 66 objected to the language which makes the authorization for the change contingent upon 

including documentation of the change in an annual report, a future event. Phillips 66 also objected 

to the requirement to submit an annual report. 

The rule language has been reorganized to more clearly specify which changes made pursuant to 

§116.116(e) require notification. However, it should be noted that the requirements in §116.117 

are notification requirements only; not an authorization from the TNRCC. The annual report is 

necessary to maintain the ability of the agency to verify a facility's compliance during annual 

inspections. Changes that have been reported to the agency or that have been included in a 

permit action during the year do not have to be included in the annual report. 

The City of Dallas suggested that the term "notification" used in this subsection be clarified with 

respect to the same term used in subsections (c) and (d) -- that is, pre-change and post-change 

notifications respectively. The City of Dallas stated that the proposed rules' would be a burden to 

field investigator activities since annual reports would need to be reviewed. The City of Dallas 

suggested that the annual report be submitted prior to August 1. 

The TNRCC believes that the changes made in response to the previous comment clarify the 

notification requirements. The annual report is intended to assist the investigator by having 

31 
documentation of changes for which notification was not required readily available in an annual 

report. The adopted rule requires this report to be submitted by August 1; however, 

infonnation related to a change may be obtained upon request of the TNRCC during a site visit. 

The EPA requested that TNRCC address the enforceability of any allowable emission rate established 

in a MAERT. 

The TNRCC would like to clarify that the MAERT is not a stand-alone document. Only 

facilities with a permit have a MAERT. The MAERT is enforceable and verifiable from a 

practical standpoint in that a permit includes conditions for demonstrating initial and on-going 

compliance with allowable emission rates either through direct measurement or through the 

recording of a surrogate parameter. 

Regarding §116.117(b)(2), Eastman suggested that this paragraph be changed to require 

documentation to be kept only for those physical or operational changes which are excluded from 

permitting requirements by remaining below the allowable emission rate. Eastman stated that the 

existing wording would require additional recordkeeping on those activities which until now have not 

been required to do so. 

In response to other comments, §116.116 and §116.117 have been changed so that only those 

changes made pursuant §116.116(e) require documentation and notification. The change 

alleviates the concern raised by Eastman. 

Regarding § 116.117 (b )(3), Eastman suggested that this paragraph be changed to accommodate the 

32 
exclusion from the notification requirement trades of emissions between facilities when the facilities 

have "relatively equivalent locations" or those which vent through a common vent system such that 

off-site impacts are not significantly affected. 

The TNRCC feels it is appropriate to require notification of the trading of emissions between 

facilities. The significance of the trade will determine whether pre- or post-notification is 

required. The TNRCC does not know how many facilities share a common emission point and 

feel it is inappropriate at this time to write an exclusion as requested. If it is found to be a 

widespread phenomenon, it could be addressed in future rulemaking. 

Regarding §116.117(c), GRASP disagreed with no notification for emission point trading of 

compounds below the de minimis level. GRASP stated that State Implementation Plan inspections 

will be much more difficult due to emission trades without notification. Carbide suggested that the de 

minimis level be set high enough to avoid unnecessary pre-change notifications. 

In response to comments made by other commenters, the concept of de minimis levels no longer 

exists. Trading of emissions between facilities will require either pre- or post-change 

notification. 

Eastman suggested the TNRCC also accept notices sent via other mail delivery methods besides 

certified mail. 

The requirement for the receipt of notification via certified mail has been deleted. However, the 

adopted rule has specific time periods for actions to be taken by the owner/operator or the 

33 
agency. The deletion allows an owner/operator to use any mail delivery method, but a peJ;"Son 

should be cautioned to use a method which allows the agency to determine date of receipt. 

Phillips 66 requested the use of the term "de minimis" be clarified relative to the terms "De Minimis 

threshold test" found in §116.12 and "De minimis impacts" found in §116.10. 

The use of this term has been deleted. 

Regarding §116.117(d), Carbide suggested that trades below the de minimis levels not require 

post-change notification. 

The TNRCC believes it is necessary for the agency to maintain records of all trades. The 

TNRCC is willing to reevaluate this requirement once the agency has some experience with 

trading of emissions between facilities and alter the notification requirements if appropriate. 

AEA recommended that the post-change notification period be extended to 45 days and the executive 

director be allowed to set limits within which qualified facilities may notify the TNRCC after the 

change. 

The TNRCC believes 30 days is adequate time to provide notice of changes. 

Regarding §116.117(e), TMOGA/TCC and Brown suggested language to clarify those changes that 

are required to be incorporated into the permit upon amendment or renewal. 

34 
The TNRCC agrees and has added language clarifies this requirement in §116.117(e). 

Amoco supported the TMOGA/TCC comment, which allows TNRCC to reissue special permit 

conditions to provide the necessary documentation to maintain accuracy in the TNRCC permit 

program. 

When a change affects a permit condition, the owner/operator can use the alteration process or 

if the facility is qualified, the notification procedures in §116.117(d) to revise permit conditions. 

Phillips commented that the use of the word "change" throughout the proposal is confusing and 

suggested the use of the word "modification" wherever possible. 

The term "change" in this proposal refers to physical or operational change. A change may or 

may not be a modification (see the definition of modification). If a change to a facility is a 

modification, permit authorization is required. If a change is made pursuant to §116.116(e), the 

owner/operator is subject to notification requirements of this section. 

Section 116.118 comments are as follows. TMOGA/TCC and Brown recommended that the title of 

the section be changed to reflect more accurately the contents of the section. 

The TNRCC agrees and has renamed §116.118, Pre-change Qualification. 

GHASP disagreed with adjusting a grandfathered facility's allowable emission rate once current 

BACT was applied. GHASP objected to the adjusted because it would allow more air pollution. 

35 
GRASP requested that equivalency for control technologies be stated in terms of a percentage of what 

the total emissions reductions of point and fugitive emission as that which would have been obtained 

with established BACT. Further, GRASP indicated that BACT equivalency should not increase the 

toxicity of emissions. GRASP suggested that the TNRCC include language to require TNRCC 

approval for BACT installation. 

The rate a grandfather facility can emit after the installation of controls will be adjusted 

downward; more pollution will not be allowed. Equivalency of controls will be determined by 

established BACT practices. The addition of controls generally does not increase the toxicity of 

emissions. The appropriateness of controls will be determined by compliance with the rule. If 

BACT for a facility is not readily available so that the owner or operator can self-verify that 

they are complying with the rule, they will be required to provide information for a case-by-case 

equivalency review. 

Regarding §116.118(a), TMOGA/TCC and Brown recommended that this subsection be changed and 

suggested language to describe more clearly when it will be necessary for a facility to undergo a 

review of qualifications before a change is made. 

The TNRCC agrees with the comment and has incorporated the suggested language. The 

suggested language clarifies that it is necessary for a facility to pre-qualify for purposes of 

demonstrating that the facility undergoing the change is qualified and to establish an allowable 

for an air contaminant relevant to the change. 

Regarding §116.118(a)(l), the EPA requested that TNRCC address the meaning of the expression 

36 
"allowable emission rate is inaccurate." 

The use of the word "inaccurate" has been deleted from the rule language. The concept the 

word was intended to convey was that all air contaminants and all emission points relevant to a 

change have established allowable emissions so that a determination of whether that change 

results in a net increase in allowable emissions can be made. 

Regarding §116.118(b), TMOGA/TCC and Brown suggested language to describe more clearly the 

procedure for pre-change qualification. 

The TNRCC agrees and has made the suggested changes to clarify that pre-change qualification 

is to be submitted on a PI-E form and can occur anytime, but no later than 45 days prior to a 

change. 

The City of Dallas suggested that this subsection would be clearer if the two sentences were reversed. 

Further, the City of Dallas indicated that the notification referred to in this subsection appeared to be 

different than the notification required under § 116.117 (c) and the purpose of this different notification 

be stated. 

The language has been restructured for clarity. Notification required under §116.118 is for 

determining whether a facility is qualified prior to a change, while §116.117 governs notification 

of the change. 

Regarding §l16.118(c), TMOGA/TCC and an individual recommended that this subsection be deleted 

37 
in conjunction with the incorporation of suggested language of §116.116(e) covering this topic. 

The TNRCC agrees. The language requiring a facility to implement BACT if installing controls 

to become qualified is contained in 116.116(e)(5). The language concerning the allowable 

emission rate for a grandfather facility after implementation of controls is contained within the 

definition of allowable emissions for a grandfathered facility in §116.10. 

Section 116.119 comments are as follows. Exxon recommended that this section be deleted, as the 

proposed section goes beyond the intent of this rulemaking, which is the implementation of SB 1126. 

Exxon stated that the TNRCC has the general authority under the TCAA to require methods of 

demonstrating compliance and that it could be implied by the inclusion of this section in this 

rulemaking that this is a new requirement for qualified facilities. 

The TNRCC agrees with the comment and is withdrawing this section. 

Eastman requested that the TNRCC allow companies to develop other methods of compliance 

demonstration rather than being held to only the five listed in the rule proposal. 

The withdrawal of this section addresses the comment. 

The City of Dallas requested that any information demonstrating compliance with allowable emission 

rates also be sent to the local agencies. 

The withdrawal of this section nullifies the comment. 

38 
The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act 

(TCAA), §382.017, which provides the TNRCC with the authority to adopt rules consistent with the 

policy and purposes of the TCAA. 

39 
STAFF

RECOMMENDATIONS
SUBCHAPTER A : DEFINITIONS 

§116.10. General Definitions. 

Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas 

Natural Resource Conservation Commission (TNRCC or commission), the terms used by the 

commission have the meanings commonly ascribed to them in the field of air pollution control. In 

addition to the terms which are defined by the TCAA, and in §101.1 of this title (relating to General 

Rules), the following words and terms, when used in this chapter, shall have the following meanings, 

unless the context clearly indicates otherwise. 

Actual emissions - For the purposes of determining whether there has been a net 

increase in allowable emissions under §116.116(e) of this title (relating to Changes to Facilities), the 

highest rate of emissions of an air contaminant actually achieved from a qualified facility within the 

120-month period prior to the change. This rate cannot exceed any applicable federal or state 

emissions limitation. 

Allowable emissions - For the purpose of determining whether there has been a net 

increase in allowable emissions under §116.116(e) of this title, the authorized rate of emissions of an 

air contaminant from a facility as determined in accordance with this section. This rate cannot exceed 

any applicable state or federal emissions limitation. 

(A) Permitted facility - For a facility with a preconstruction permit under this 

40 
chapter, the allowable emissions shall be any emission limit established in the permit on a MAERT 

and any emission limit contained in representations in the permit application which was relied upon in 

issuing the permit, plus any allowable emissions authorized by a standard exemption. 

(B) Standard exemption facility - For a facility operating under a standard 

exemption, the allowable emissions shall be the least of the emissions rate allowed in §116.211 of this 

title (relating to Standard Exemption List), the emissions rate specified in the applicable exemption, or 

a federally enforceable emissions rate established on a PI-8 form. 

(C) Grandfathered facility - For a qualified grandfathered facility, the 

allowable emissions shall be the maximum annual emissions rate after the implementation of any air 

pollution control methods to become a qualified facility, plus 10% of the maximum annual emissions 

rate prior to the implementation of such control methods, but in no case shall the allowable emissions 

be greater than the maximum annual emissions rate prior to the implementation of such control 

methods. The maximum annual emissions rate is the emissions rate at the maximum annual capacity 

according to the physical or operational design of the facility, data from actual operations over a 

period of no more than 12 months that demonstrates the maximum annual capacity, or other 

information that demonstrates the maximum annual capacity. Except where a grandfather facility has 

been modified, the allowable emissions for the modification shall be determined as a permitted 

facility. 

(D) Standard permit facility - For a facility authorized by standard permit, 

other than §116.617(2) of this title (relating to Standard Permits List), the allowable emissions shall 

be the maximum emissions rate represented in the registration for the standard permit. 

41 
.· ···---·· . . . -· --- --·· .-_ --- .. 

(E) Special exemption facility - For a facility operating under a special 

exemption, the allowable emissions shall be the emissions rate represented in the original special 

exemption request. 

(F) The allowable emissions for a qualified facility shall not be adjusted by 

the voluntary installation of controls. 

BACT -Best Available Control Technology with consideration given to the technical 

practicability and the economic reasonableness of reducing or eliminating emissions from the facility. 

Facility - A discrete or identifiable structure, device, item, equipment, or enclosure 

that constitutes or contains a stationary source, including appurtenances other than emission control 

equipment. A mine, quarry, well test, or road is not considered to be a facility. 

Grandfathered facility - Any facility that is not a new facility since it was 

constructed prior to the permit requirements of this subchapter. 

Maximmn allowable emissions rate table (MAERT) - A table included with a 

preconstruction permit issued under this chapter that contains the allowable emission rates established 

by the permit for a facility. 

Modification of existing facility - Any physical change in, or change in the method 

of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the 

facility into the atmosphere or that results in the emission of any air contaminant not previously 

42 
emitted. The term does not include: 

(A) insignificant increases in the amount of any air contaminant emitted that 

is authorized by one or more TNRCC exemptions; 

(B) insignificant increases at a permitted facility; 

(C) maintenance or replacement of equipment components that do not 

increase or tend to increase the amount or change the characteristics of the air contaminants emitted 

into the atmosphere; 

(D) an increase in the annual hours of operation unless the existing facility 

has received a preconstruction permit or has been exempted, pursuant to the Texas Clean Air Act 

(TCAA), §382.057, from preconstruction permit requirements; 

(E) a physical change in, or change in the method of operation of, a facility 

that does not result in a net increase in allowable emission of any air contaminant and that does not 

result in the emission of any air contaminant not previously emitted, provided that the facility: 

(i) has received a preconstruction permit or permit amendment or has 

been exempted pursuant to the TCAA, §382.057, from preconstruction permit requirements no earlier 

than 120 months before the change will occur; or 

(ii) uses, regardless of whether the facility has received a 

43 
......... 

preconstruction permit or permit amendment or has been exempted pursuant to the TCAA, §382.057, 

an air pollution control method that is at least as effective as the BACT that TNRCC required or 

would have required for a facility of the same class or type as a condition of issuing a permit or 

permit amendment 120 months before the change will occur; 

(F) a physical change in, or change in the method of operation of, a facility 

where the change is within the scope of a flexible permit; or 

(G) a change in the method of operation of a natural gas processing, treating, 

or compression facility connected to or part of a natural gas gathering or transmission pipeline which 

does not result in an annual emission rate of any air contaminant in excess of the volume emitted at 

the maximum designed capacity, provided that the facility is one for which: 

(i) construction or operation started on or before September 1, 1971, 

and at which either no modification has occurred after September 1, 1971, or at which modifications 

have occurred only pursuant to standard exemptions; or 

(ii) construction started after September 1, 1971, and before March 1, 

1972, and which registered in accordance with the TCAA, §382.060, as that section existed prior to 

September 1 , 1991. 

New facility- A facility for which construction is commenced after August 30, 1971, 

and no contract for construction was executed on or before August 30, 1971 , and that contract 

specified a beginning construction date on or before February 29, 1972. 

44 
Qualified facility - An existing facility that satisfies the criteria of either subparagraph 

(E)(i) or (ii) under the definition of modification of existing facility in this section. 

Source- A point of origin of air contaminants, whether privately or publicly owned 

or operated. 

This agency hereby certifies that the section as adopted has been reviewed by legal counsel and found 

to be a valid exercise of the agency's legal authority. 

Issued in Austin, Texas, on February 7, 1996. 

45 
The repeal is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), 

§382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and 

purposes of the TCAA. 

SUBCHAPTER B: NEW SOURCE REVIEW PERMITS 

PERMIT APPLICATION 

§116.117. Distance Limitations. 

This agency hereby certifies that the section as adopted has been reviewed by legal counsel and found 

to be a valid exercise of the agency's legal authority. 

Issued in Austin, Texas, on February 14, 1996. 

46 
The amendments and new sections are adopted under the Texas Health and Safety Code, the Texas 

Clean Air Act (TCAA), §382.017, which provides the TNRCC with the authority to adopt rules 

consistent with the policy and purposes of the TCAA. 

SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

PERMIT APPLICATION 

§116.112. Distance Limitations. 

(a) Lead smelters. Pursuant to the Texas Clean Air Act, §382.053, a permit shall not be 

issued for a new lead smelting plant at a site located within 3,000 feet of the residence of any 

individual and at which lead smelting operations have not been conducted before August 31, 1987. 

This subsection does not apply to a modification of a lead smelting plant in operation on or before 

August 31, 1987, to a new lead smelting plant or modification of a plant with the capacity to produce 

not more than 200 pounds of lead per hour, or to a lead smelting plant that was located more than 

3,000 feet from the nearest residence when the plant began operations. 

47 
(b) Hazardous waste permits. Permits for hazardous waste management facilities shall not be 

issued if the facility is to be located in the vicinity of specified public access areas under the following 

circumstances. 

(1) No permit shall be issued for a new hazardous waste landfill or land treatment 

facility or an areal expansion of an existing facility if the boundary of the facility or expansion is to 

be located within 1,000 feet of an established residence, church, school, day care center, surface 

water body used for a public drinking water supply, or dedicated public park. 

(2) No permit shall be issued for a new commercial hazardous waste management 

facility or the subsequent areal expansion of such a facility or unit of that facility if the boundary of 

the unit is to be located within 1h mile (2,640 feet) of an established residence, church, school, day 

care center, surface water body used for a public drinking water supply, or dedicated public park. 

(3) For a subsequent areal expansion of a new commercial hazardous waste 

management facility that is required to comply with paragraph (2) of this subsection, distances 

shall be measured from a residence, church, school, day care center, surface water body used for a 

public drinking water supply, or dedicated public park only if such structure, water supply, or park 

was in place at the time the distance was certified for the original permit. 

( 4) No permit shall be issued for a new commercial hazardous waste management 

facility that is proposed to be located within 1

h mile (2,640 feet) from an established residence, 

church, school, day care center, surface water body used for a public drinking water supply, or 

dedicated public park, at any distance beyond the facility's property boundaries, unless the applicant 

48 
demonstrates that the facility will be operated so as to safeguard public health and welfare and protect 

physical property and the environment. 

(5) !he measurement of distances required by paragraphs (1) - (4) of this subsection 

shall be taken toward an established residence, church, school, day care center, surface water body 

used for a public drinking water supply, or dedicated public park that is in use when the permit 

application is filed with the Texas Natural Resource Conservation Commission. The restrictions 

imposed by paragraphs (1) - (4) of this subsection do not apply to a residence, church, school, day 

care center, surface water body used for a public drinking water supply, a dedicated public park 

located within the boundaries of a commercial hazardous waste management facility, or property 

owned by the permit applicant. 

(6) The measurement of distances required by paragraphs (1) - (4) of this subsection 

shall be taken from a perimeter around the proposed hazardous waste management unit. The 

perimeter shall be no more than 75 feet from the edge of the proposed hazardous waste management 

unit. 

§116.116. Changes to Facilities. 

(a) Representations and conditions. All representations with regard to construction plans and 

operation procedures in an application for a permit, special permit, or special exemption, as well as 

any general and special conditions attached to the permit, special permit, or special exemption itself, 

become conditions upon which the subsequent permit, special permit, or special exemption are issued. 

49 
(b) Permit amendments. Except as provided in subsection (e) of this section, it shall be 

unlawful for any person to vary from any representation or permit condition if the change will cause a 

change in the method of control of emissions, the character of the emissions, or will result in an 

increase in the discharge of the various emissions, unless application is made to the executive director 

to amend the permit or special permit in that regard· and such amendment is approved by the 

executive director or the Texas Natural Resource Conservation Commission (TNRCC). Applications 

to amend a permit or special permit shall be submitted with a completed Form PI-1 and are subject to 

the requirements of § 116.111 of this title (relating to General Application). 

(c) Permit alterations. 

(1) A permit alteration is: 

(A) any change from a representation in a permit application that does not 

involve an increase in emission rates or a change in the character or method of control of emissions; 

or 

(B) any change in a general or special condition of a permit that does not 

involve an increase in emission rates or a change in the character or method of control of emissions; 

(C) a decrease in allowable emissions. 

(2) All requests for permit alterations which may result in an increase in off-property 

concentrations of air contaminants, involve a change in permit conditions, or affect facility or control 

50 
equipment performance must receive prior approval by the executive director. The executive director 

shall be notified in writing of all other permit alterations. Any request for permit alteration shall 

include information sufficient to demonstrate that the change does not interfere with the owner or 

operator's previous demonstrations of compliance with the requirements of §116.111(3) of this title. 

(3) Permit alterations shall not be subject to the requirements of Best Available 

Control Technology identified in §116.111(3) of this title. 

(d) Standard exemption in lieu of permit amendment or alteration. Notwithstanding 

subsections (b) or (c) of this section, no permit amendment or alteration is required if the changes to 

the permitted facility qualify for an exemption under Subchapter C of this chapter (relating to Permit 

Exemptions) unless prohibited by permit condition as provided in §116.115 of this title (relating to 

Special Conditions). All such exempted changes to a permitted facility shall be incorporated into that 

facility's permit at such time as the permit is amended or renewed. 

(e) Changes to qualified facilities. Notwithstanding any other subsection of this section, a 

physical or operational change may be made to a qualified facility if the change does not result in a 

net increase in allowable emissions of any air contaminant and does not result in the emission of any 

air contaminant not previously emitted. 

(1) In determining whether a change to a qualified facility results in a net increase in 

allowable emissions or the emission of any air contaminant not previously emitted, the effect on 

emissions of the following shall be considered: 

51 
(A) ariy air pollution control method applied to the qualified facility; 

(B) any decreases in allowable emissions from other qualified facilities at the 

same TNRCC air quality account number that have received a preconstruction permit or permit 

amendment no earlier than 120 months before the change will occur; and 

(C) any decrease in actual emissions from other qualified facilities at the 

same TNRCC air quality account number that are not included in subparagraph (B) of this paragraph. 

(2) The determination of whether a physical or operational change would result in a 

net increase in allowable emissions of any air contaminant or the emission of any air contaminant not 

previously emitted shall be based on the allowable emissions for air contaminant categories and any 

allowable emissions for individual compounds. If a physical or operational change would result in 

emissions of an air contaminant category or compound above the allowable emissions for that air 

contaminant category or compound, the amount above the allowable emissions must be offset by an 

equivalent decrease in emissions at the same facility or a different facility. In making this offset, the 

following subparagraphs apply. 

(A) The offset shall be based on the same time periods (e.g., hourly and 

annual rates) as the allowable emissions for the facility at which the change will occur. 

(B) Emissions of different compounds within the same air contaminant 

category may be interchanged. 

(C) For allowable emissions for individual compounds, any interchange shall 

52 
adjust the emission rates for the different compounds in accordance with the ratio of the effects 

screening levels of the compounds. 

(D) For allowable emissions for air contaminant categories, interchanges shall 

use the unadjusted emission rates for"the different compounds. 

(E) The effects screening level shall be determined by the executive director 

of the TNRCC. 

(F) An air contaminant category is a group of related compounds, such as 

volatile organic compounds, particulate matter, nitrogen oxides, and sulfur compounds. 

(3) Persons making changes to qualified facilities under this subsection shall comply 

with the applicable requirements of § 116.117 of this title (relating to Notification of Changes to 

Qualified Facilities) and §116.118 of this title (relating to Pre-change Qualification). 

(4) As used in this subsection, the term "physical and operational changes" does not 

include: 

(A) construction of a new facility; or 

(B) changes to procedures regarding monitoring, determination of emissions 

and recordkeeping that are required by a permit. 

53 
(5) If additional air pollution control methods are implemented for the purpose of 

making a facility a qualified facility, such additional control methods shall be at least as effective as 

Best Available Control Technology (BACT) required at the time the additional control methods are 

implemented. If additional control methods are implemented that are not at least as effective as such 

BACT, the facility may be determined to be a qualified facility only if the owner or operator can 

demonstrate that the control methods were implemented to comply with a law, rule, order, permit, or 

can demonstrate that the control method was implemented to resolve a documented citizen compliant. 

The implementation of any additional control methods shall be subject to the requirements of this 

chapter. 

(6) For purposes of this subsection and § 116.117 of this title (relating to 

Documentation and Notification of Changes to Qualified Facilities), the consideration of decreases in 

allowable and actual emissions from other qualified facilities in accordance with paragraph (1) of this 

subsection shall be referred to as intraplant trading. The decreases in allowable and actual emissions 

shall be based on emission rates for the same time periods (e.g., hourly and annual rates) as the 

allowable emissions for the facility at which the change will occur and for which an intraplant trade is 

desired. Actual emissions shall be based on data that is representative of the emissions actually 

achieved from a facility during the relevant time period (e.g., hourly or annual rate). The allowable 

emissions from facilities that were never constructed shall not be use in intraplant trading. 

(7) The existing level of control may not be lessened for a qualified facility. 

§116.117. Docwnentation and Notification of Changes to Qualified Facilities. 

54 
(a) Persons making physical or operational changes to qualified facilities under the provisions 

of § 116.116(e) of this title (relating to Changes to Facilities) shall maintain documentation at the plant 

site demonstrating that the changes satisfy the requirements of that section. If the plant site is 

unmanned, the regional manager may authorize an alternative site to maintain this documentation. 

This documentation shall include quantification of all emission increases and decreases associated with 

the physical or operational change, a description of the physical or operational change, a description 

of any equipment being installed, and sufficient information as may be necessary to demonstrate that 

the project will comply with the Federal Clean Air Act, Title 1, Parts C and D. This documentation 

shall be made available to representatives of the Texas Natural Resource Conservation Commission 

(TNRCC) upon request. 

(b) In addition to the documentation requirements under subsection (a) of this section, 

persons making such changes to qualified facilities shall comply with the following notification 

requirements. 

(1) Annual report. For changes to qualified facilities for which there is no intraplant 

trading in accordance with § 116.116(e)(1) of this title, an annual report shall be submitted to the 

appropriate TNRCC regional office by August 1 of each year which shall include all changes made 

under §116.116(e) during the immediately preceding annual period July 1 -June 30. Changes for 

which notification has been previously submitted by PI-E form to TNRCC under paragraphs (2) or (3) 

of this subsection or which have been incorporated into the permit for the facility need not be 

included in the annual report. The annual report shall contain a PI-E form for each change. The 

annual reporting period for a TNRCC air quality account and the due date of the annual report may 

be changed with the agreement of the TNRCC regional office. 

55 
' ' . ' . ~·· ~. ··~~ .. ·-·-~·--····~· ......... . 

(2) Post-change notification. For changes to qualified facilities for which there is 

intraplant trading below the reportable limit, notification of the change shall be submitted on a PI-E 

form to the New Source Review Division of the TNRCC within 30 days after the change occurs. 

(3) Pre-change notification. For changes to qualified facilities for which there is 

intraplant trading above the reportable limit, notification of the change shall be submitted on a PI-E 

form to the New Source Review Division of the TNRCC before the change may occur. The change 

may occur after the receipt of written notification from the TNRCC that there are no objections, or 45 

days after the notification is received by the TNRCC, whichever occurs first. 

(4) Reportable limit. The executive director shall establish reportable limits as 

follows: 

(A) an emission rate that is adjusted based on a factor that accounts for a 

ratio of the effects screening levels of the different compounds and the difference in location of 

emissions involved in an intraplant trade; or 

(B) an emission rate that results in a sum total of modeled ground level 

concentration for the account that shall not exceed two times the effects screening level. 

{c) For facilities that have received a preconstruction permit, all changes for which the 

notification procedure of subsection (b) of this section has been used shall be incorporated into the 

permit at such time as the permit is amended or renewed. 

(d) If a physical or operational change at a qualified facility will affect compliance with a 

56 
permit special condition, notice shall be made to the TNRCC prior to the change. The notice shall 

identify the affected special condition and indicate the change needed or the desire to remove the 

special condition from the permit. The permit holder is relieved from complying with the permit 

special condition upon the filing of the notice provided the change complies with §l16.116(e) of this 

title. 

(e) Nothing in this section shall limit the applicability of any federal requirement. 

§116.118. Pre-change Qualification. 

(a) If either of the following conditions exists, it will be necessary to establish that a facility 

is a qualified facility before a physical or operational change may be made under the notification 

procedure of §116.117 of this title (relating to Documentation and Notification of Changes to 

Qualified Facilities): 

(1) the facility is a qualified facility on the basis of Best Available Control 

Technology and the requirement for the facility type has not been previously established by the 

executive director of the TNRCC; 

(2) the facility does not have allowable emissions established for an air contaminant 

relevant to the change in a maximum allowable emissions rate table, PI-8 form or PI-E form. 

(b) The pre-change qualification shall be made by submitting a PI-E form to the New Source 

57 
Review Division. The facility shall be qualified in accordance with the information contained in the 

PI-E form after receipt of written notification from the TNRCC that there are no objections, or 45 

days after the PI-E form is received by TNRCC, whichever occurs first. The pre-change qualification 

may be submitted at the same time as a pre-change notification under § 116.117 (b) of this title or at 

any other time prior to making a change to a qualified facility. 

This agency hereby certifies that the section as adopted has been reviewed by legal counsel and found 

to be a valid exercise of the agency's legal authority. 

Issued in Austin, Texas, on February 14, 1996. 

58 
'?/!? 1-'- 91-?-1-<J 

adopting amendments to 30 TAC Chapter 116, Subchapter A, 

_J.~~!IIf:a:~~~~~~~:rf~~,cerning Definitions, and Subchapter B, concerning Permit 

GIOrtl A. vaqua. Chief Clerk Application, and adopting revisions to the State 

~ 

t .... NIUwANour~ Implementation Plan, to modify air permit application 

ComnwiQn procedures and evaluation criteria to provide more operational 

flexibility to facilities; Docket No. 95-1419-RUL. 

WHEREAS, on February 14, 1996, the Texas Natural Resource Conservation Commission 

(TNRCC or Commission) considered revisions to 30 TAC Chapter 116, Subchapter A, concerning 

Definitions, and Subchapter B, concerning Permit Application, and to the State Implementation Plan 

(SIP) in order to modify air permit application procedures and evaluation criteria to provide more 

operational flexibility for facilities; and 

WHEREAS, pursuant to the Texas Health and Safety Code Annotated, §382.017 (Vernon's 

1992); Texas Government Code Annotated, Subchapter B, Chapter 2001 (Vernon's 1993); and 40 

Code of Federal Regulations, §51.102, the Commission staff, after proper notice, conducted a public 

hearing on November 6, 1995 to consider revisions to 30 TAC Chapter 116 and to the SIP; and 

WHEREAS, the Commission staff duly circulated to interested persons, the Regional 

Administrator of the U. S. Environmental Protection Agency (EPA), and all applicable local air 

pollution control agencies, hearing notices of its intended action; and 

WHEREAS, interested persons were invited to submit data, views, and recommendations on 

the proposed revisions, either orally or in writing, at the hearing; and 

WHEREAS, copies of the proposed revisions were available for public inspection at the 

Commission's central office and regional offices prior to the scheduled hearing; and 

WHEREAS, data, views, and recommendations of interested persons were submitted to the 

Commission staff at the hearing and were considered by the Commission staff as reflected in the 

attached analysis of testimony; and 

WHEREAS, the TNRCC finds that said analysis of testimony includes the names of all 

interested groups or associations offering comment on the revisions and their position concerning the 

proposed amendments; and 

WHEREAS, the Texas Health and Safety Code Annotated, §382.017, gives the Commission 

authority to make rules and regulations consistent with the policies and purposes of the Texas Clean 

Air Act; and 

WHEREAS, the Commission finds that the reasoned justification and factual bases for the 

proposed revisions are fully set out in the analysis of testimony; and 
Docket No. 95-1419-RUL 

Page 2 

C. t.e i(Q;X t.'O•\(t~ ·J;'h· -!it.~:·t.j 5 -~! ~~"'~ rrir.-t! ~·'-~·, '~····!>·.~·.~·~ · 

.Mttflv~.){lt;• 1'1(·, ;'c • -,- " , .) '~~l!lli ~ tf.t!ll;~.::• !\.. ' • ' r -. ,.,it' ~~-- •.• r ~~ f.e ablfJO.i' jo, .. hk:•~• h~Q .IH ft; b(tt;t it'·~: '<' '- , l·£dfl '!.i1 

•' ·i;!,?,!1'f'•>'V\.:,.") 

r~; ev<~r. ic .. M tM QFte.t1 ~"' ·~·'•· ~-••t' WHEREAS, the Commission hereby certifies that the amendments, as adopted, have been 

reviewed by legal counsel and found to be a valid exercise of the Commission· s legal authority. 

'· \ .. ·~ ~- ';-\. NOW, THEREFORE, BE IT ORDERED BY THE~:'~ .. ,· -~~~,-~:~t;.J,, .l,_ .. .l,'T/'-~.;·-·~~~~:.·: !J.~ ~:.:"~ !.t1.i.rf·~~·lt~~ A ti· .. h)•L.' ..... 

1. The revisions to 30 TAC Chapter 116 and the SIP appended to this Orlier~fe!~~~ kill'ltl 

adopted and promulgated; ';(_.;,.;:N" ~;o:,) "i'.Ml'lll'ts.~n-~ • .) 

2. On behalf of the Commission, the Chairman should transmit a certified copy of this Order, 

together with the adopted amendments, to the Governor of Texas for submittal to the Regional 

Administrator of the EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air 

Act, §110, as amended; and 

3. The Executive Director is instructed to file a certified copy of the adopted amendments to 

30 TAC Chapter 116 with the Secretary of State pursuant to the Administrative Procedure Act. 

Issued date: FEB 2 R 1996 

ATTEST: 

~d.~H.L{- Gloria A. Vasquez, C Cle& 

TEXAS NATURAL RESOURCE 

CONSERVATION COMMISSION 
• 

• . 

• 

innovative claims at any time the Executive Director has reason to 

believe that substantive circumstances have changed. 

(F) The Executive Director will not consider, and 

the applicant may not rely upon, innovative product claims or other 

information submitted as confidential on a registration document. 

(d) For jlny product for which an exemption has been granted 

or registration filed pursuant to this section, the manufacturer shall 

notify the Executive Director in writing no less than 30 days prior 

to any change in the product formulation, recommended product 

usage directions, or any information which would alter the emissions 

estimates submitted to the Executive Director in support of the 

exemption application or registration. 

(e) If VOC standards are lowered for a product category 

through any subsequent rulemaking, all innovative product exemptions granted or registrations filed for products in the product category, except as provided in this subsection, shall have no force and 

effect as of the effective date of the modified VOC standard. This 

subsection shall not apply to innovative products which have VOC 

emissions less than representative products using the new VOC standard, for which a written notification of the product's emissions status 

versus the lowered VOC standard has been submitted to the Executive Director before the effective date of such standard, or to products 

manufactured prior to the effective date of the modified standard under a valid innovative product exemption or registration. 

(f) If the Executive Director believes that a consumer product 

for which an exemption has been granted no longer meets the criteria 

for an innovative product specified in subsection (a) of this section, 

the Executive Director may modify or revoke the exemption as 

necessary to assure that the product will meet these criteria. 

This agency hereby certifies that the rule as adopted has been 

reviewed by legal counsel and found to be a valid exercise of 

the agency's authority. 

Issued in Austin, Texas, on February 15, 1996. 

TRD-9602218 

Kevin McCalla 

Director, Legal Services Division 

Texas Natural Resource Conservation Commission 

Effective date: March 7, 1996 

Proposal publication date: September 8, 1995 

For further information, please call: (512) 239-1970 

• • • 

Chapter 116. Control of Air Pollution by Permits 

for New Construction or Modification 

The Texas Natural Resource Conservation Commission 

(TNRCC) adopts amendments to §116.10, concerning General 

Definitions, and § 116.116, concerning Changes to Facilities; 

the repeal of §116.117, concerning Distance Limitations; and 

new § 116.112, concerning Distance Limitations, § 116.117, 

concerning Documentation and Notification of Changes to 

Qualified Facilities, and §116.118, concerning Pre-change 

Qualification. Sections 116.10, 116.116, 116.117, and 116.118 

are adopted with changes to the proposed text as published in 

the October 10, 1995, issue of the Texas Register(20 TexReg 

8306). The repeal and § 116.112 are adopted without changes 

and will not be republished. Section 116.119 is withdrawn by 

the TNRCC. 

The TNRCC permit amendment and alteration criteria and 

procedures are being modified pursuant to Senate Bill 1126 

(74th Legislature, 1995). The modified language will implement 

Senate Bill 1126 (SB 1126) to allow certain facilities the ability 

to make changes without requiring prior authorization. 

Revisions to §116.10, concerning General Definitions, amend 

the current definition of new source (now new facility) and add 

the proposed new definitions for actual emissions, allowable 

emissic,ns, Best Available Control Technology (BACT), facility, 

grantlffathered facility, maximum allowable emission rate table, 

modification of existing facility, qualified facility, and source. 

The proposed definition for non-qualified facility was deleted as 

unnecessary from the adopted rule. The proposed definitions 

for relatively equivalent compound and net increase in allowable 

emissions were also deleted, however the concepts have been 

incorporated into the adopted §116.116(e). Definitions for 

grandfathered facility, facility, and source were added to the 

rule to clarify the meanings of these terms. 

Revisions to §116.116, concerning Changes to Facilities, establish the criteria by which changes at qualified facilities may 

be made without triggering the requirements for obtaining a permit amendment or permit alteration. To make the requirements 

easier to understand, new § 116.116(e) consolidates in one location the principal provisions which cover changes made to 

qualified facilities. These provisions include the criteria for facility qualification and the methods for determining the net effect 

of emission increases and decreases, compound interchanges, 

and intraplant trading of emissions. This section explicitly prohibits the construction of new facilities or the lessening of controls since neither was intended to be included within the flexibility intended under SB 1126. It also requires facilities to install 

current BACT if the purpose of the installation is to become a 

qualified facility. 

Revisions to §116.117, concerning Documentation and Notification of Changes to Qualified Facilities, establish the requirement for record keeping of all changes made under the adopted 

§116.116(e) at the facility and the types of notification associated with specific scenarios. Section 116.117(a) requires that 

the records be maintained on-site and that they are presented 

to the TNRCC upon request in order to make proper inspection of the changes made at the facility. Section 116.117(a) 

also identifies the type of information to be included in these 

records. There are three types of notification required under 

§116.117(b) for changes to facilities: an annual report, which 

covers the previous year's changes not notified by the other 

two means; post-change notification, which covers changes for 

which there was an intraplant trade of emissions below the reportable limit; and pre-change notification, which covers intraplant trades above the reportable limit. The reportable limit has 

been established as a screening approach to allow the commission an opportunity to review certain intraplant trades. Section 

116.117(d) was established to provide another method, in addition to permit alteration procedures, for those permitted facilities 

making changes pursuant §116.116(e) that would result in a violation of a permit special condition. This subsection requires 

a permit holder to identify the permit special conditions that are 

made invalid by a change made pursuant §116.116(e) and de21 TexReg 1569 February 27, 1996 Texas Register 
note the necessary revision to the special condition or desire to 

remove the special condition from the permit. 

Revisions to § 116.118, concerning Pre-change Qualification, 

provide the conditions under which a facility must establish with 

the TNRCC that the facility is qualified. This section directs 

these facilities to submit documentation describing the basis for 

qualification. 

New § 116.112, concerning Distance Limitations, relocates the 

current rule language from § 116.117 to this new section. 

This recommendation is made to allow for a more logical 

presentation of Chapter 116. 

The TNRCC has prepared a Takings Impact Assessment 

for these rules pursuant to the Texas Government Code, 

§2007.043. The following is a summary of that assessment. 

The specific purpose of the rule is to provide for changes in permitting requirements for existing qualified facilities as allowed by 

Senate Bill 1126. The rules will substantially advance this specific purpose by making the necessary revisions to current regulations covering changes to facilities and by developing new 

definitions that assist in the implementation of these changes. 

Further, the amendments incorporate a new mechanism for notification to the TNRCC of changes at facilities qualified for the 

flexibility provided by SB 1126. Promulgation and enforcement 

of these rules will not affect private real property which is the 

subject of the rules because the permit amendment and notification processes are considered operational, not capital cost 

borne by the affected parties of these rules. 

A total of 18 interested parties submitted written testimony 

on the proposal: Eastman Chemical Company (Eastman); 

Exxon Company USA (Exxon); Houston Lighting and Power 

(HL&P); Phillips 66 Company; Texas Chemical Council (TCC); 

Texas Mid-continent Oil and Gas Association (TMOGA); ECApplied, Inc.; American Electronics Association (AEA); Central 

and South West Services, Inc. (CSWS); Enron Operations Corporation (Enron); Amoco; and Union Carbide Corporation (Carbide). Brown McCarroll & Oaks Hartline (Brown) and Texas 

Utilities Services, Inc. (TU Services) generally supported the 

intent of the proposed revisions, but suggested changes or clarifications. An individual submitted an option for determining 

"Relatively Equivalent Compound." The United States Environmental Protection Agency (EPA) submitted comments on the 

proposal and items of concern it suggested be addressed in 

the public record, but did not indicate support or opposition to 

the proposal. The City of Dallas submitted comments, but did 

not support or oppose the proposal. Galveston-Houston Association for Smog Prevention (GHASP) requested that the entire 

proposal be withdrawn. 

General Comments. Carbide suggested that a small section 

of permit engineers be created to work on pre-change notifications, and on some of the BACT issues. 

The TNRCC recognizes that staff resources will be necessary 

to review requests related to this rulemaking. 

Exxon, En ron, and Carbide suggested the TNRCC quickly move 

to address allowable emissions from grandfathered facilities that 

are not considered qualified. This action will impact the way that 

facilities will be treated under the operating permits program. 

CSWS wants this issue addressed in this rulemaking and also 

stated that the grandfathered rate definition for the natural gas 

industry would be appropriate for non-qualified grandfathered 

acid rain units. Carbide suggested that TNRCC action on 

this issue is needed to resolve confusion for the regulated 

community. 

Currently, grandfather rates are defined in 30 TAC Chapter 

122 for the purposes of determining potential to emit for Title 

V applicability. Discussions have taken place in which it has 

been suggested that this language be moved from Chapter 122 

to Chapter 116. This suggested change, however, is outside 

the scope of this rule proposal. The TNRCC appreciates the 

concern raised by the commenters. 

Phillips 66 suggested another comment period due to the complexity of the rules and the overlap between major and minor 

New Source Review and Prevention of Significant Deterioration. 

This proposal does not affect Prevention of Significant Deterioration applicability or review. It is necessary to enact this proposal as soon as possible in order to implement the changes 

to the statute that resulted from the last legislative session. An 

additional comment period would serve to delay this effort. 

TMOGA!TCC provided language for a new subsection, 

§116.116(e), which covers changes to qualified facilities. The 

purpose of this subsection is to consolidate in one location 

the principal provisions of SB 1126 regarding the flexibility 

provided to qualified facilities to make physical and operational 

changes. These provisions are: net increases in allowable 

emissions; air contaminants not previously emitted; notification requirements; excluded changes; additional controls for 

qualification purposes; and intraplant trading of allowable and 

actual emissions. Brown recommended that similar changes 

be made. 

The TNRCC accepts the proposed change and feels that the 

format js easier to understand. However, it should be noted 

that the language has not been accepted verbatim. 

Eastman, GHASP, EPA, and EC-Applied, Inc. requested that 

the guidance document undergo public review and comment 

or at least, the public should be given adequate notice prior to 

changes to the guidance document. 

The TNRCC intends to make draft versions of the guidance 

document available on the TNRCC bulletin board. Concerns 

and comments will be accepted on the guidance document. 

Amoco, Enron, AEA, Exxon, and HL&P supported the recommendations of TMOGA!TCC. 

The TNRCC acknowledges the support from these groups for 

the changes recommended by TMOGA. 

Section 116.10. General Definitions comments are as follows. 

Phillips 66 requested that the TNRCC explain the interaction of 

§ 116.1 0 definitions with those in § 116.12 specifically for terms 

such as "actual emissions" and "actual emissions rate." 

The newly adopted definitions in § 116.10 are relevant in 

all sections of Chapter 116 with the exception of §116.150, 

concerning Nonattainment Review as is the case for the current 

definitions in §116.10. The definition of "actual emissions" in 

§116.1 0, however, restricts its applicability to § 116.116(e). 

February 27, 1996 21 TexReg 1570 

~I 

&h ... l,)f' 

~ 
• 

• . 

• . ~. 

TMOOAITCC and an individual suggested a definition for 

grandfathered facility from the Texas Clean Air Act (TCAA) for 

inclusion in the rule, since it is a term used within other parts of 

the proposed rule. 

A definition for grandfather facility has been included. 

Brown recommended that the TNRCC add statutory definitions 

for "facility" and "source" to the rule proposal. 

The TNRCC agrees and has made the changes to the proposal. 

Regarding the definition of actual emissions rate, Carbide 

suggested that the TNRCC clarify the phrases "prior to change" 

and "federal or state emissions limitations. • 

"Change" is a term that is currently used in the regulations and 

is intended to indicate that requirements are to be met prior to 

commencement of construction of a physical change or prior 

to making an operational change. Federal and state emission 

limitations would include those limits in federal or state permits 

or any limit that may apply to a facility in a state or federal 

regulation. The TNRCC does not feel that a change is needed 

to the proposed language to make these terms clear. 

TMOOAITCC suggested word changes and additions to clarify 

the definition and make it more consistent with the statute and 

implementing rules. TMOOAITCC also suggested this definition 

apply only to intraplant trading involving actual emissions from 

other qualified facilities. Further, TMOOAITCC recommended 

that the TNRCC add language to the rule which requires 

intraplant trades to be expressed in the same time periods, e.g., 

pounds per hour or tons per year . 

The TNRCC agrees and has made the proposed changes. 

Brown requested the deletion of the term "rate" since the 

language of the statute does not use the term. Brown also 

suggested that the TNRCC add language to the rule which 

requires intraplant trades to be expressed in the same time 

periods on emissions. 

The TNRCC agrees and has made the proposed changes. 

TMOOAITCC, TU Services, and Eastman recommended that 

the January 1, 1990, restriction in determining actual emissions 

be deleted. Eastman supports the flexibility offered by the 

120-month window for determining actual emission rates from 

qualified facilities with no permitted allowable emission rate. 

The TNRCC agrees and has deleted the appropriate language. 

GHASP disagreed with the approach for determining actual 

emission rates which allows facilities to use the highest annual 

rate for anytime in the past ten years. 

The statute does not specifically speak to the relevant time 

period for establishing a facility's actual emissions. The statute 

does use a 120-month period for qualifying facilities based 

on control technology. Some time period must be used, and 

therefore the TNRCC feels it is reasonable to follow the 120-

month precedent established in the statute. 

Regarding the definition of allowable emission rate, the City 

of Dallas raised a concern that the rule proposal will reduce 

agency awareness of emission changes on a timely basis. 

Notification is required for changes that result in intraplant 

trading. This provides adequate notice of significant emission 

changes. Other changes either result in insignificant emission 

trading or do not exceed previously established allowable&. 

Records of these changes must be maintained on-site and must 

be made available to the TNRCC upon request. Additionally, 

changes that don't require notification are required to be 

reported to the TNRCC annually. 

GHASP opposed allowing facilities to maintain their maximum 

allowable emission rate after implementation of controls. 

This nJie language is intended to implement the statutory 

chantl a that allows the consideration of reductions made in 

determining if an increase in emissions had occurred. 

Brown requested the removal of the term "rate" since the lan· 

guage of the statute does not use the term and recommended 

la~guage to clarify the definition. 

The TNRCC agrees and has made the proposed change. 

Regarding the definition of allowable emission rate for a qualified grandfathered facility, TMOOAITCC. suggested changes 

and additions to clarify the meaning of the definition and make 

it more consistent with the statute and implementing rules. For 

grandfathered facilities installing BACT to become a qualified fa· 

cility, TMOOAITCC recommended that 10% of pre-control maximum annual emissions rate be added to the facility's allowable 

emission. 

The TNRCC agrees and has made the proposed change. 

The City of Dallas questioned whether this definition was 

intended to include the application of control technology for 

allowable emission rate determinations. 

Yes, the intent was to reflect that a reduction in emission 

potential had occurred as a result of the additional controls. 

Regarding the definition of allowable emission rate for a quali· 

fied facility voluntarily installing controls, the EPA requested that 

the TNRCC explain the approach of allowing a facility to keep 

its pre-control allowable emission rate when the facility's potential to emit would be lower after the voluntary installation of 

controls. Further, the EPA requested that the rule specify that 

reductions from the old allowable emission rate not be used 

to satisfy provisions for netting and offsetting associated with 

permitting for Prevention of Significant Deterioration (PSD) and 

nonattainment (NA) areas. 

The purpose of this rulemaking is to implement the changes 

to state New Source Review as a result of SB 1126. Senate 

Bill 1126 allows a facility to install controls at the same time 

physical and operational changes are made in order to avoid a 

"net" increase in allowable emissions. 

The TNRCC recognizes, however, that some of these changes 

that are now exempt from the state definition of modification 

may require federal PSD or NA review. The adopted rules 

require that a facility verify that a change will not require 

federal review. This rule does not affect federal permitting 

applicability or requirements. It is TNRCC's position that the 

use of reductions to net out of state New Source Review does 

not affect it's creditability for federal review. Therefore, any 

reduction in emissions that may result at a source is available 

21 TexReg 1571 February 27, 1996 Texas Register 
for netting and offsetting only if it satisfies the creditability criteria 

established under the PSD and NA regulations. 

Regarding the definition of BACT, TMOGA!TCC suggested that 

BACT would be expressed better as an emissions limitation 

rather than a specified control technology. 

The acronym BACT was included simply to be substituted for 

the phrase as defined. The term is not intended to imply 

a particular control technology, but rather the best level of 

control that can be achieved considering technical practicability 

and economic reasonableness. An emissions limitation is 

established based on the application of BACT which is reflected 

as an allowable emission rate in a permit. The TNRCC does 

not feel that it is appropriate to define BACT as an emissions 

limitation due to various factors that determine each individual 

facility's emissions limitation. 

The EPA recommended that the TNRCC modify the definition of 

BACT to make it consistent with the federal definition or explain 

the justification for the difference. Further, EPA suggested the 

TNRCC indicate how the different definitions are equivalent. 

The term "BACT" added as part of this rule amendment is consistent with its use in the TCAA, existing TNRCC regulations, 

the State Implementation Plan, in the PSD delegation agreement, and in the annual grant agreements with the EPA. The 

TNRCC believes this represents a long historical understanding 

of how BACT is characterized in Texas. 

Brown suggested language to correct the proposed definition 

since the term being defined is used within the definition. 

It was not the intention of staff to define BACT, as a specific 

level of control, but rather to define the acronym BACT as it is 

used by the TNRCC. 

Regarding the definition of maximum allowable emissions rate 

table (MAERT), TMOGA!TCC and Brown suggested language 

changes to specify that the maximum allowable emission rate 

table is that which is issued with a preconstruction permit. 

The TNRCC agrees and has made proposed change. 

Regarding the definition of modification of existing facility, 

Carbide and Phillips 66 suggested that TNRCC more clearly 

define the term "facility" because there is confusion regarding 

the ability to net emissions. Carbide requests that the TNRCC 

prepare a BACT guidance document and make it accessible 

through various media. 

The TNRCC agrees and has added the statutory definition for 

the term "facility" to the definitions in § 116.10. The TNRCC is in 

the process of developing a guidance document that will explain 

to the regulated community how to determine if a physical or 

operational change at a facility is exempt from the definition of 

modification consistent with SB 1126. As part of this guidance 

document, the TNRCC will publish a list of historical BACT 

requirements and will provide guidance on netting of emissions 

between facilities. The document will be available through the 

TNRCC electronic bulletin board and in hard copy upon request. 

Phillips 66, EPA, and GHASP requested more clarity on the 

term "insignificant increase"and the basis for its determination. 

The term "insignificant increase" is an existing term under 

the definition of "modification" in the TCAA. The TNRCC 

is not proposing to change the definition or undertake a \... 

new interpretation of the existing statute. TNRCC's current 

mechanism for authorizing insignificant sources is through 

standard exemption. As of yet, there is no established level 

of emissions that the TNRCC considers to be "insignificant." 

TMOGA!TCC and Brown suggested updating the language to 

reflect the current organization of TNRCC. TMOGA!TCC and 

Brown suggested language to clarify that facility qualification on 

the basis of BACT applies to those facilities that do not satisfy 

the criteria for qualification on the basis of a permit, permit 

amendment, or standard exemption. Brown recommended that 

language be deleted to remove redundancy with the definition 

of BACT. 

The TNRCC agrees and has made the proposed changes. 

Eastman suggested that other parts of Chapter 116 referencing standard exemptions as modifications be changed to be 

consistent with the definition of "modification of existing facil· 

ity" in § 116.1 0. Eastman also requested that the definition of 

modification also be changed so that an increase in the hours 

of operations at a permitted or exempted facility would not be 

considered a modification if the additional operating time was 

previously authorized. Eastman also suggested that the defini· 

tion be changed as to exclude relatively equivalent compounds 

from those air contaminants judged not to be previously emit· 

ted. 

This rulemaking package is intended to implement the changes 

to the statute that resulted from SB 1126. The portion of the 

definition of modification that refers to standard exemptions 

existed prior to the passage of SB 1126. It is not staff's t!. _t J 

intent to review issues related to the existing statute and the 'lir..... 

language in Chapter 116 dealing with standard exemptions 

at this time. Staff does not believe that the definition of 

modification needs to be changed to include language that 

an increase in operating hours at a permitted or exempted 

facility is not a modification. As long as the facility does not 

exceed previous representations regarding operating hours, 

under existing rule language, this would not be considered 

a modification. The language proposed for the definition 

of modification is directly from the statute. The definition 

of relatively equivalent compound has been deleted and the 

concept of interchanging equivalent compounds was placed in 

§116.116(e). 

The City of Dallas had a serious concern regarding how the 

term "insignificant increases" could be interpreted, especially 

as applied to toxic emissions. The City of Dallas suggested 

that the TNRCC apply Standard Exemption 118 requirements 

to these speciated chemicals. 

The term "insignificant increase" is an existing term under 

the definition of modification in the TCAA. The TNRCC is 

not proposing to change the definition or undertake a new 

interpretation of the existing statute. The TNRCC's current 

mechanism for authorizing insignificant sources is through 

standard exemption as previously explained. 

GHASP indicated that documenting BACT over the past ten 

years would be unworkable because of the case-by-case 

approach the TNRC6 took regarding BACT. 

February 27, 1996 21 TexReg 1572 

t . ~ 
• 

• . 

• 

To the extent possible, the TNRCC intends to make information available on historical BACT determinations. The rule prescribes in §116.118, pre-change qualification for those facilities 

for which BACT cannot be documented or that vary from the 

historical list. This pre-change qualification allows the agency 

to consider demonstrations made by the owner/operator that the 

facilities in question are qualified on the basis of having BACT 

equivalent to what would have been required 120 months prior 

to a change. 

Enron indicated that this definition could resolve the grandfathered status of natural gas facilities. 

The TNRCC agrees that the definition clarifies the types of 

changes these facilities can make without those changes being 

considered a modification. 

Regarding the definition of net increase in allowable emissions, 

TMOGAITCC recommended the removal of this term with the 

provision that this language be included in their proposed 

§116.116(e). 

The TNRCC agrees and has made the proposed change. 

Phillips 66 requested clarification on which baseline levels of 

emissions to use when calculating the net effect of a change to 

an existing facility. 

In determining if a modification has occurred, there must first 

be a physical or operational change. A qualified facility is not 

modified if a physical or operational change does not result in 

an increase above its authorized allowable. Likewise, a facility 

is not considered modified if sufficient decreases can be found 

from other qualified facilities so that a net increase in allowable 

emissions is avoided. If the facility at which the redudion occurs 

is qualified by permit, then the redudion must come from the 

allowable emission rate of that facility. If the facility at which the 

redudion occurs is qualified by BACT or standard exemption, 

then redudions must come in the form of adual emissions. 

Actual emissions, for purposes of netting under §116.116 (e)(1 ), 

are defined as the highest level of emissions achieved within 

120 months prior to a change. 

The EPA recommended that any decreases used for netting 

purposes not be relied upon in a PSD permit or NA permit, 

and not used in the demonstration of attainment or reasonable 

further progress in the State Implementation Plan. The EPA 

suggested that the netting window begin when the facility 

notifies the TNRCC of the proposed change and end when the 

proposed increase occurs. The EPA requested that TNRCC 

consider the inclusion of other non-projed increases which 

occur in the netting window. The EPA concurred that the 

TNRCC has adequately addressed the applicability of major 

sources and major modifications with respect to PSD and NA 

permitting requirements. The EPA requested that TNRCC 

address the effect the rule proposal will have on the Operating 

Permits Program under Title V of the Federal Clean Air Ad. 

It is TNRCC's position that the use of redudions to net outof-state New Source Review does not affect the creditability 

of these redudions for federal review. Likewise, emission 

increases netting for out-of-state review purposes are still 

accountable in PSD/NA netting. Therefore, any redudion in 

emissions that may result at a source are available for netting 

and offsetting as long as they satisfy the creditability criteria 

established under the PSD and NA regulations. 

The TNRCC believes there will not be a net redudion associated with these changes available to be used in a demonstration 

of attainment or reasonable further progress in the State Implementation Plan. 

The TNRCC has proposed a simple netting exercise to determine if a net increase in emissions occurs as a result of a physical or operational change. A netting window for the purposes of 

this demonstration would unnecessarily complicate the process. 

Each projed will require a separate demonstration that a net 

incret\~e has not occurred, since Texas has a more narrow definition of facility and strider definition of modification than the 

federal programs. The TNRCC does not see the benefit of including non-projed related increases within a netting window 

as the EPA has suggested. 

The TNRCC appreciates EPA's concurrence that PSD and NA 

applicability has been adequately addressed in the rule. The 

TNRCC acknowledges the EPA's comment. 

The TNRCC is unsure of the exad effects of this rule given 

the developmental status of the Title V Operating Permit 

Program. However, if changes allowed under these rules trigger 

a requirement under the federal operation permit program for 

a permit or permit modification, then those rules will govem for 

that program. 

Regarding the definition of new source, TMOGA/TCC and 

Brown recommended that the definition of new source be 

changed to new facility and suggested language consistent 

with their suggested definition of grandfathered facilities. TU 

Services made similar comments with suggested language for 

the definition. 

The TNRCC agrees to change the definition of new source 

to new facility to be consistent with the terminology used in 

the statute and in Chapter 116. In revising the definition of 

new facility, the TNRCC did not rely solely on the suggested 

language made by any one of the commenters, but believes 

that the adopted definition is consistent with the statute and the 

spirit of the comments. 

Regarding the definition of non-qualified facility, TMOGA/TCC 

and Brown recommended that this term be deleted as unnecessary. 

The TNRCC agrees and has deleted the term "non-qualified 

facility." 

Regarding the definition of qualified facility, Carbide suggested 

TNRCC allow operating units that have undergone the permit 

renewal process to be considered qualified, especially those 

renewals that have adjusted permits conditions to BACT and 

near BACT. 

The TNRCC does not agree with the comment since the 

statute does not make such a provision. Control technology 

review is not performed at time of renewal unless there is a 

demonstrated condition of air pollution. Therefore, a facility that 

has undergone a permit renewal may not necessarily meet the 

requirement of having BACT equivalent to what would have 

been required 120 months prior to a change. 

21 TexReg 1573 February 27, 1996 Texas Register 
TMOGA/TCC and Brown recommended that TNRCC avoid 

using language significantly different from that found in the 

statute and suggested language to correct the inconsistency. 

The TNRCC agrees and has made the proposed changes. 

Eastman suggested that any facility which has undergone a 

BACT review as part of a special exemption authorization within 

the last 120 months also be considered qualified. Eastman 

also suggested that the definition be modified to allow for 

shutdown facilities to be creditable reductions when considering 

the impact of a change on net allowable emission levels. 

The TNRCC agrees that special exempted facilities and standard exempted facilities authorized under the TCAA, §382.057 

within 120 months prior to a change are qualified and have 

revised the rule language appropriately. Emissions from shutdown facilities can be used to avoid a net increase in emissions 

as long as the shutdown facility would meet the criteria of being a qualified facility at the time of the change resulting in the 

emission increase. 

Regarding the definition of relatively equivalent compound, 

Carbide recommended this issue be simplified by having three 

to four groupings for the purposes of netting and Carbide also 

suggested the TNRCC allow for intergroup trades as long as 

the emission rate of the more impacting chemicals does not 

increase. 

The TNRCC evaluated several approaches for determining 

whether a physical or operational change results in a net 

increase in allowable emissions. The adopted rule does not 

contain the term "relatively equivalent compound." The rule 

does, however, allow increases in emissions of individual 

compounds to be offset by equivalent decreases in emissions at 

the same or another qualified facility. The offset is made by the 

interchange of another compound in the same air contaminant 

category or an intraplant trade, which is similar to Carbide's 

suggested grouping. In addition to being in the same air 

contaminant category, interchanges must offset an increase 

in emissions by an equivalent reduction in emissions. The 

equivalence is based on a ratio of the effects screening level 

of the compounds. Interchanges may not result in a rate of 

emissions that will exceed the allowable for an air contaminant 

category. This method affords flexibility as suggested by 

Carbide. 

TMOGA/TCC and Brown suggested language so that the term 

could be modified to make it consistent with the practical manner in which the term will be used. 

As explained in the previous response, the term "relatively 

equivalent compound" has been deleted. However, the concept 

of offsetting emission increases by equivalent decreases is 

found in §116.116(e). This approach results in a rule that is 

more consistent with this approach as suggested by TMOGA/ 

TCC and Brown. 

The City of Dallas requested clarification of the term "similar 

characteristics." The City of Dallas indicated that different 

processes using the same compound will affect the emission 

rate of the compound, thus, the TNRCC will need to take this 

into consideration when chemical groupings are determined. 

The term "similar characteristics" is no longer in the rule due 

to the removal of the term "relatively equivalent compound." 

However, the concept of equivalence, to which the term "similar 

characteristics" applied, is now found in §116.116(e) and is 

based on effects screening levels. GHASP objected to the 

use of the concept because it would allow the release of toxic 

compounds that should be strictly regulated. 

The adopted rule will not allow the release of toxic compounds 

unchecked nor will the rule relieve the owner from complying 

with regulations governing the release of toxic compounds. 

EC-Applied, Inc. supported the proposed flexibility to create 

groupings which allow for facilities to make weekly changes to 

products and feedstocks without the need for permit amendments or standard exemptions. 

The adopted rule wijl allow for operational changes cited by the 

EC-Applied, Inc., but only if the change does not result in a net 

increase in allowable emissions. 

The individual recommended TNRCC include as an option 

the ability for a facility to submit modeling information that 

would show no adverse impacts from the proposed change. 

Eastman suggested the TNRCC consider the collocation of 

impacts screening as an alternative approach to evaluating the 

interchangeability of one compound for another. 

The TNRCC intends to allow facilities to use valid methods 

for determining if a change will result in an adverse impact 

and is currently evaluating several options. These methods 

will be discussed in the guidance document. However, the 

determination of whether there has been a net increase in 

anowable emissions is limited to equivalent emission rates 

based on relative toxicity as determined by a ratio of effects 

screening levels. 

AEA recommended that the TNRCC refine the definition to 

specifically allow the interchange of different compounds. 

The adopted rule will allow for the interchange of different 

compounds in the same air contaminant category as provided 

in §116.116(e). 

Amoco supported TNRCC's effort to incorporate this concept. 

The TNRCC acknowledges Amoco's support. 

Section 116.116 comments are as follows. TMOGA/TCC and 

Brown suggested that the section title be changed to indicate 

more clearly the subject matter on the section. 

The TNRCC agrees that §116.116 pertains to more than 

amendments and alterations for permitted facilities and has 

made the proposed change to reflect that this section contains 

requirements for changes at existing facility, permitted or 

otherwise. 

TMOGA/TCC and Brown provided language for a new subsection, §116.116(e), which covers changes to qualified facilities. 

The purpose of this subsection is to consolidate in one location the principals provisions of SB 1126 regarding the flexibility 

provided to qualified facilities to make physical and operational 

changes. These provisions are: net increases in allowable 

emissions; air contaminants not previously emitted; notification 

requirements; excluded changes; additional controls for qualifiFebruary 27, 1996 21 TexReg 1574 
cation purposes; and intraplant trading of allowable and actual 

emissions. 

The TNRCC agrees and has added a new subsection as 

§116.116(e) to govern physical and operational changes at 

qualified facilities. This new subsection will contain the regulatory language to exempt certain changes at qualified facilities 

from permitting requirements. The definition of net increase 

in allowable emissions will be deleted from the definitions in 

§116.10 and language will be added to this subsection. This 

new subsection will also allow for the interchange of equivalent 

compound in the same air contaminant category at qualified 

facilities. The TNRCC believes that it was the intent of the 

legislature to afford facilities flexibility in making changes. The 

concept of interchanging equivalent compounds is consistent 

with that philosophy. Notification of changes will be required to 

allow the agency the opportunity to track changes at facilities 

to ensure compliance with the rules governing changes at qualified facilities. Language has been added to preclude a claim 

that a facility would not have to comply with a monitoring or 

sampling condition under the excuse that the change does not 

result in an increase in allowable emissions or the emission of 

a new air contaminant .. Language has also been added to limit 

trading to equivalent mass rate .units. 

Brown also requested that TNRCC address in the guidance 

document what constitutes the interchange of relatively equiva· 

lent compounds "in a manner approved by the executive director of the TNRCC." Brown suggested language to replace "air 

contaminant not previously emitted" with "air contaminant not 

previously authorized to be emitted." The basis of this recommendation is that some permits have been issued which include 

allowable emission rates to authorize the emissions of air contaminants that were not emitted upon issuance of the permit, 

but may be emitted in the future. 

The TNRCC intends to address in the guidance document what 

constitutes the interchange of relatively equivalent compound. 

The phrase "air contaminant not previously emitted" comes from 

the statutory definition of modification. For consistency, the staff 

recommends the terms closely agree with the statute. 

Regarding §116.117(b)(1 ), Phillips 66 suggested the word 

"change" be replaced with "modification." Phillips 66 also suggested language to clarify the term "various emissions." 

The rulemaking is intended to implement SB 1126. Phillip's 

suggestions address existing rule language and is outside the 

scope of this rulemaking. 

TMOOA/TCC and Brown suggested modifications that will keep 

the current permit amendment requirements of non-qualified facility changes separate from those requirements of changes 

made to qualified facilities. 

The restructuring of the rule to place all requirements related 

to SB 1126 in §116.116(e) maintains separate procedures for 

qualified and non-qualified facilities. 

Regarding §116.116(b)(2), Phillips 66 suggested the word 

"change" be replaced with "modification." 

The TNRCC would like to clarify that these rules address two 

types of changes; those that are modifications and require 

permit authorization and those that are not modifications. Those 

changes that do not require authorization will be required to 

comply with recordkeeping and notification requirements of 

§116.117 and §116.118 of the adopted rules. 

Regarding §116.116(c), TMOGA/TCC and Brown recommended TNRCC clarify in the preamble that the intent of 

§116.116(c)(1)(C) is to show that a permit alteration is one 

means to effect a reduction in allowable emissions, but it is 

not the only means. TMOGA/TCC and the individual· also 

suggested that incorporating the allowable red!Jction in the 

notification required under § 116.117(b)(2) or (3) would make 

the reduction enforceable, since the reduction is a condition of 

changir.g a qualified facility under their suggested language 

§116. ~ 16(e). 

For a qualified facility, a reduction in allowable emissions may 

also be accomplished through the pre-change notification or 

post-notification processes in §116.117(b)(2) or (3). However, 

for non-qualified facilities, reduction in allowable emissions 

can only be accomplished through permit alteration. Under 

the alteration process, the TNRCC will re-issue a MAERT; 

while under the notification process for qualified facilities, 

a PI-E form must be submitted. Reductions in allowable 

emissions are enforceable because either the permit allowable 

has been changed and a new MAERT issued or a PI-E form, 

which established a new enforceable emission limit, has been 

submitted with the notification. Where a permitted facility 

submits a PI-E, the MAERT will be reissued. 

Regarding § 116.116(c)(1 ), Phillips 66 suggested adding the 

words "required for" after ·A permit alteration is .. ." to alleviate 

some confusion of the proposal as written. 

The rulemaking . is intended to implement SB 1126. Phillips' 

suggestions address existing rule language and is outside the 

scope of this rulemaking. 

Regarding §116.116(c)(1)(C), Phillips 66 suggested this sub· 

paragraph be eliminated because of the potential volume of 

changes to a permit when federal requirements change. Phillips 

66 also suggested replacement language for subsection (c) if 

the TNRCC continued to require a permit alteration for a decrease in allowable emissions. 

This provision was not meant to require that a person submit 

a permit alteration if a new state or federal regulation limited 

a facility's emissions below that which is stated in the MAERT 

since the rule already provides that the allowable cannot exceed 

a applicable state or federal emission limitation. The alteration 

language was added to allow facilities to make a voluntary 

reduction in allowable for use by qualified facilities to determine 

if there has been a net increase in allowable emissions. 

Regarding § 116.116(d), TMOGA/TCC and Brown suggested 

that this exemption be expanded to all subsections in § 116.116 

and provided minor language changes to simplify this section.· 

The TNRCC agrees that this section needs to l:)e changed to 

make clear that a standard exemption may be used in lieu of 

a permit amendment or alteration, but it is not appropriate to 

include other subsections. 

Eastman stated that permit amendments or alterations should 

not be required for any type of change that does not qualify as 

21 TexReg 1575 February 27, 1996 Texas Register 
a modification to an existing facility and provided language to 

be contained in § 116.116(d) to this effect. 

This subsection presumes that a change has occurred at a permitted facility and in lieu of obtaining a permit amendment oralteration, the change is authorized through standard exemption. 

This subsection was originally added to give industry flexibility to make changes rapidly that would otherwise require permit 

amendment or alteration by use of a standard exemption. Later 

these changes must be rolled into the permit. Senate Bill 1126 

says that certain changes at qualified facilities are not modifications, and therefore do not require pre-construction authorization. Therefore, it is not appropriate to say that these changes 

do not require a standard exemption since a standard exemption is a type of pre-construction authorization. 

Section 116.117 comments are as follows. TMOGAJrCC and 

Brown suggested the title of the section be modified to make it 

consistent with the language of the statute and other sections 

of the proposed rules. 

The TNRCC agrees and has made the appropriate changes. 

TMOGAJrCC and Brown recommended that the proposed language be deleted and suggested new language which consolidates the proposed notification requirements under § 116.117 

(b)-(d) into one subsection. TMOGAJrCC suggested the language of these subsections be changed to clarify and distinguish the notification requirements from the pre-change qualification requirements. 

The TNRCC agrees and suggested changes have been made 

to clarify the process. Section 116.117 has been reorganized 

and renamed to highlight the documentation and notification 

requirements for changes made pursuant to §116.116(e). Prequalification procedures have been separated from the notification procedures and are contained in §116.118, concerning 

Pre-change Qualification. In addition, a requirement for prior 

notification of changes that would conflict with an existing permit special conditions has been added. 

GHASP indicated concern regarding the lack of real time notification of changes made at a facility. Further, GHASP disagreed 

with the lack of public input into these facility modifications. 

The TNRCC believes that significant changes in emissions will 

be reported to the agency. The TNRCC believes that the 

legislature did not intend for these facility changes, which do 

not amount to a modification, to be subject to agency approval 

or public input. The public's opportunity for input will be at the 

time the facility is constructed or modified such that emission 

increases significantly above the previous allowable. 

The City of Dallas requested that the local agencies be copied 

on all notices to the agency as required in §116.117(b), (c), 

and (d) documentation of changes to the TNRCC. The City of 

Dallas requested that the local agencies be notified due to their 

enforcement responsibilities. 

The TNRCC intends to have pre- and post-change notification 

of intraplant trades sent to the central office and the annual 

report of all other changes sent to the regional office. This 

information will be available to the local agencies. The TNRCC 

is willing to work with the local agencies to develop a system for 

communication of the facility notifications. Further, the facilities 

are required to provide information regarding the change upon 

request of the TNRCC. 

Amoco suggested TNRCC keep the notification for changes 

at qualified facilities as simple as possible and supported the 

notification process offered by TMOGAffCC. 

The TNRCC believes that these rules have a simple notification 

process. The TNRCC has incorporated many of the changes 

suggested by TMOGAffCC. 

Regarding §116.117(a), Exxon requested that operators be 

allowed to maintain documentation at the plant site or at the 

nearest manned location if the site is unmanned. 

The TNRCC recognizes the difficultly of maintaining documentation at unmanned sites and has added language to 

§ 116.117(a) to accommodate this request. 

TMOGAJrCC suggested language clarifying that the responsibility for maintaining documentation is upon the person or 

persons making the. physical or operational change and that 

the documentation must satisfy the requirements of changes to 

qualified facilities. 

The TNRCC agrees with TMOGAJrCC's request, and has made 

the appropriate changes. 

Eastman also recommended that the documentation required to 

be kept on-site include that information relevant and necessary 

to demonstrate exclusion from the permit process. 

The TNRCC believes the current language requires only relevant and necessary information since the rule only requires that 

documentation contain information associated with the change. 

Regarding §116.117(b), Carbide, Phillips 66, and Eastman 

requested that the annual report be deleted. Eastman stated 

that the annual report is unjustified, since the changes included 

in an annual report are not considered modifications under SB 

1126 and these changes will also be incorporated into the permit 

upon renewal or permit amendment. Phillips 66 asked that 

the annual report be eliminated because the records will be 

available at the facility and subsequently incorporated into the 

permit upon renewal. 

The TNRCC believes that the annual report benefits both 

industry and the agency by setting up a mechanism to track 

changes in order to evaluate whether a permit action should 

have been required. This is intended to minimize the time 

both the inspector and plant personnel must spend during site 

investigations. The TNRCC envisions that this process will 

eliminate potential disagreement between the agency and the 

plant as to whether permit violations have occurred and that at 

time of permit renewal this information will be readily available 

for incorporation into the permit. 

Carbide also requested that the documentation of a change be 

kept only for the life of the change and that any information 

regarding these changes may be obtained through a request of 

the plant. Carbide suggested that the annual reports be sent 

to the central office to avoid overburdening the regional office 

staff and that annual reports cover a calendar year. 

The TNRCC believes that it is important to maintain documentation of the change as required in the rule to ensure that the 

commission has the ability to verify that facilities are making 

February 27, 1996 21 TexReg 1576 
• 

• . 

. 

• 

changes appropriately. Maintaining documentation for a period 

longer than the life of the change will prevent not having necessary documentation if a change is questioned at a later date. 

The adopted rule requires that annual reports be received by 

the regional office by August 1 to aid in proper inspection of the 

facility by the TNRCC or local agencies. The August 1 deadline 

for annual reports has been selected to coincide as much as 

possible with the State Implementation Plan inspection schedule. 

Phillips 66 objected to the language which makes the authorization for the change contingent upon including documentation of 

the change in an annual report, a future event. Phillips 66 also 

objected to the requirement to submit an annual report. 

The rule language has been reorganized to more clearly specify which changes made pursuant to §116.116(e) require notification. However, it should be noted that the requirements in 

§116.117 are notification requirements only; not an authorization from the TNRCC. The annual report is necessary to maintain the ability of the agency to verify a facility's compliance 

during annual inspections. Changes that have been reported 

to the agency or that have been included in a permit action during the year do not have to be included in the annual report. 

The City of Dallas suggested that the term "notification" used in. 

this subsection be clarified with respect to the same term used 

in subsections (c) and (d)-that is, pre-change and post-change 

notifications respectively. The City of Dallas stated that the 

proposed rules would be a burden to field investigator activities 

since annual reports would need to be reviewed. The City of 

Dallas suggested that the annual report be submitted prior to 

August 1. 

The TNRCC believes that the changes made in response 

to the previous comment clarify the notification requirements. 

The annual report is intended to assist the investigator by 

having documentation of changes for which notification was not 

required readily available in an annual report. The adopted 

rule requires this report to be submitted by August 1; however, 

information related to a change may be obtained upon request 

of the TNRCC during a site visit. 

The EPA requested that TNRCC address the enforceability of 

any allowable emiss~on rate established in a MAERT. 

The TNRCC would like to clarify that the MAERT is not a standalone document. Only facilities with a permit have a MAERT. 

The MAERT is enforceable and verifiable from a practical standpoint in that a permit includes conditions for demonstrating initial 

and on-going compliance with allowable emission rates either 

through direct measurement or through the recording of a surrogate parameter. 

Regarding § 116.117(b)(2), Eastman suggested that this paragraph be changed to require. documentation to be kept only 

for those physical or operational changes which are excluded 

from permitting requirements by remaining below the allowable 

emission rate. Eastman stated that the existing wording would 

require additional recordkeeping on those activities which until 

now have not been required to do so. 

In response to other comments, §116.116 and §116.117 have 

been changed so that only· those changes made pursuant 

§116.116(e) require documentation and notification. The 

change alleviates the concern raised by Eastman. 

Regarding §116.117(b)(3), Eastman suggested that this paragraph be changed to accommodate the exclusion from the notification requirement trades of emissions between facilities when 

the facilities have "relatively equivalent locations" or those which 

vent through a common vent system such that off-site impacts 

are not significantly affected. 

The TNRCC feels it is appropriate to require notification of 

the trading of emissions between facilities. The significance 

of the f.rade will determine whether pre- or post-notification is 

requin:.d. The TNRCC does not know how many facilities share 

a common emission point and feel it is inappropriate at this 

time to write an exclusion as requested. If it is found to be 

a widespread phenomenon, it could be addressed in future 

rulemaking. 

Regarding §116.117(c), GHASP disagreed with no notification 

for emission point trading of compounds below the de minimis 

level. GHASP stated that State Implementation Plan inspections will be much more difficult due to emission trades without 

notification. Carbide suggested that the de minimis level be set 

high enough to avoid unnecessary pre-change notifications. 

In response to comments made by other commenters, the 

concept of de minimis levels no longer exists. Trading of 

emissions between facilities will require either pre- or postchange notification. 

Eastman suggested the TNRCC also accept notices sent via 

other mail delivery methods besides certified mail. 

The requirement for the receipt of notification via certified mail 

has been deleted. However, the adopted rule has specific time 

periods for actions to be taken by the owner/operator or the 

agency. The deletion allows an owner/operator to use any mail 

delivery method, but a person should be cautioned to use a 

method which allows the agency to determine date of receipt. 

Phillips 66 requested the use of the term "de minimis" be 

clarified relative to the terms "De Minimis threshold test" found 

in §116.12 and "De minimis impacts" found in §116.10. 

The use of this term has been deleted. 

Regarding § 116.117(d), Carbide suggested that trades below 

the de minimis levels not require post-change notification. 

The TNRCC believes it is necessary for the agency to maintain 

records of all trades. The TNRCC is willing to reevaluate 

this requirement once the agency has some experience with 

trading of emissions between facilities and alter the notification 

requirements if appropriate. 

AEA recommended that the post-change notification period be 

extended to 45 days and the executive director be allowed to 

set limits within which qualified facilities may notify the TNRCC 

after the change. 

The TNRCC believes 30 days is adequate time to provide notice 

of changes. 

Regarding §116.117(e), TMOGA/TCC and Brown suggested 

language to clarif9" those changes that are required to be 

incorporated into the permit upon amendment or renewal. 

21 TexReg 1577 February 27, 1996 Texas Register 
The TNRCC agrees and has added language clarifies this 

requirement in §116.117(e). 

Amoco supported the TMOGAITCC comment, which allows 

TNRCC to reissue special permit conditions to provide the 

necessary documentation to maintain accuracy in the TNRCC 

permit program. 

When a change affects a permit condition, the owner/operator 

can use the alteration process or if the facility is qualified, 

the notification procedures in §116.117{d) to revise permit 

conditions. 

Phillips commented that the use of the word "change" through· 

out the proposal is confusing and suggested the use of the word 

"modification" wherever possible. 

The term "change" in this proposal refers to physical or oper· 

ational change. A change may or may not be a modification 

{see the definition of modification). If a change to a facility is 

a modification, permit authorization is required. If a change is 

made pursuant to §116.116(e), the owner/operator is subject to 

notification requirements of this section. 

Section 116.118 comments are as follows. TMOGAITCC and 

Brown recommended that the title of the section be changed to 

reflect more accurately the contents of the section. 

The TNRCC agrees and has renamed §116.118, Pre-change 

Qualification. 

GHASP disagreed with adjusting a grandfathered facility's al· 

lowable emission rate once current BACT was applied. GHASP 

objected to the adjusted because it would allow more air pol~ 

lution. GHASP requested that equivalency for control tech· 

nologies be stated in terms of a percentage of what the to· 

tal emissions reductions of point and fugitive emission as that 

which would have been obtained with established BACT. Further, GHASP indicated that BACT equivalency should not in· 

crease the toxicity of emissions. GHASP suggested that the 

TNRCC include language to require TNRCC approval for BACT 

installation. 

The rate a grandfather facility can emit after the installation 

of controls will be adjusted downward; more pollution will 

not be allowed. Equivalency of controls will be determined 

by established BACT practices. The addition of controls 

ge.nerally does not increase the toxicity of emissions. The 

appropriateness of controls will be determined by compliance 

with the rule. If BACT for a facility is not readily available so 

that the owner or operator can self-verify that they are complying 

with the rule, they will be required to provide information for a 

case-by-case equivalency review. 

Regarding § 116.118(a), TMOGAITCC and Brown recommended that this subsection be changed and suggested 

language to describe more clearly when it will be necessary for 

a facility to undergo a review of qualifications before a change 

is made. 

The TNRCC agrees with the comment and has incorporated 

the suggested language. The suggested language clarifies 

that it il; necessary for a facility to pre-qualify for purposes 

of demonstrating that the facility undergoing the change is 

qualified and to establish an allowable for an air contaminant 

relevant to the change. 

Regarding §116.118(a)(1), the EPA requested that TNRCC 

address the meaning of the expression "allowable emission rate 

is inaccurate." 

The use of the word "inaccurate" has been deleted from the 

rule language. The concept the word was intended to convey 

was that all air contaminants and all emission points relevant 

to a change have established allowable emissions so that a 

determination of whether that change results in a net increase 

in allowable emissions can be made. 

Regarding §116.118{b), TMOGAITCC and Brown suggested 

language to describe more clearly the procedure for pre-change 

qualification. 

The TNRCC agrees and has made the suggested changes to 

clarify that pre-change qualification is to be submitted on a PI-E 

form and can occur anytime, but no later than 45 days prior to 

a change. 

The City of Dallal suggested that this subsection would be 

clearer if the two sentenaes were reversed. Further, the 

City of Dallas indicated that the notification referred to in 

this subsection appeared to be different than the notification 

required under § 116.117{c) and the purpose of this different 

notification be stated. 

The language has been restructured for clarity. Notification 

required under § 116.118 is for determining whether a facility is 

qualified prior to a change, while §116.117 governs notification 

of the change. 

Regarding §116.118(c), TMOOAITCC and an individual recom· 

mended that this subsection be deleted in conjunction with the 

incorporation of suggested language of §116.116(e) covering 

this topic. 

The TNRCC agrees. The language requiring a facility to 

implement BACT if installing controls to become qualified 

is contained in §116.116(e)(5). The language concerning 

the allowable emission rate for a grandfather facility after 

implementation of controls is contained within the definition of 

allowable emissions for a grandfathered facility in §116.1 0. 

Section 116.119 comments are as follows. Exxon recommended that this section be deleted, as the proposed section 

goes beyond the intent of this rulemaking, which is the imple· 

mentation of SB 1126. Exxon stated that the TNRCC has the 

general authority under the TCAA to require methods of demonstrating compliance and that it could be implied by the inclusion 

of this section in this rulemaking that this is a new requirement 

for qualified facilities. 

The TNRCC agrees with the comment and is withdrawing this 

section. 

Eastman requested that the TNRCC allow companies to de· 

velop other methods of compliance demonstration rather than 

being held to only the five listed in the rule proposal. 

The withdrawal of this section addresses the comment. 

The City of Dallas requested that any information demonstrating 

compliance with allowable emission rates also be sent to the 

local agencies. 

The withdrawal of this section nullifies the comment. 

February 27, 1996 21 TexReg 1578 
' Subchapter A Definitions 

30 TAC §116.10 

The amendment is adopted under the Texas Health and Safety 

Code, the Texas Clean Air Act (TCAA), §382.017, which 

provides the TNRCC with the authority to adopt rules consistent 

with the policy and purposes of the TCAA. 

§116.1 0. General Definitions. 

Unless specifically defined in the Texas Clean Air Act (fCAA) or in 

the rules of the Texas Natural Resource Conservation Commission 

(fNRCC or commission), the terms used by the commission have 

the meanings commonly ascribed to them in the field of air pollution 

control. In addition to the terms which are defined by the TCAA, 

and in §101.1 of this title (relating to General Rules), the following 

words and terms, when used in this chapter, shall have the following 

meanings, unless the context clearly indicates otherwise. 

Actual emissions-For the purposes of determining 

whether there has been a net increase in allowable emissions under 

§116.116(e) of this title (relating to Changes to Facilities). the 

highest rate of emissions of an air contaminant actually achieved 

from a qualified facility within the 120-month period prior to the 

change. This rate cannot exceed any applicable federal or state 

emissions limitation. 

Allowable emissions-For the purpose of determining 

whether there has been a net increase in allowable emissions under 

§116.116(e) of this title, the authorized rate of emissions of an air 

contaminant from a facility as determined in accordance with this 

section. This rate cannot exceed any applicable state or federal 

emissions limitation. 

(A) Permitted facility-For a facility with a preconstruction permit under this chapter, the allowable emissions shall be any 

emission limit established in the permit on a MAERT and any emission limit contained in representations in the permit application which 

was relied upon in issuing the permit, plus any allowable emissions 

authorized by a standard exemption. 

(B) Standard exemption facility-For a facility operating under a standard exemption. the allowable emissions shall be the 

least of the emissions rate allowed in §116.211 of this title (relating to 

Standard Exemption List), the emissions rate specified in the applicable exemption, or a federally enforceable emissions rate established 

on a PI-8 form. 

(C) Grandfathered facility-For a qualified grandfathered facility, the allowable emissions shall be the maximum annual 

emissions rate after the implementation of any air pollution control 

methods to become a qualified facility. plus 10% of the maximum 

annual emissions rate prior to the implementation of such control 

methods, but in no case shall the allowable emissions be greater 

than the maximum annual emissions rate prior to the implementation 

of such control methods. The maximum annual emissions rate is 

the emissions rate at the maximum annual capacity according to the 

physical or operational design of the facility, data from actual operations over a period of no more than 12 months that demonstrates the 

maximum annual capacity, or other information that demonstrates the 

maximum annual capacity. Except where a grandfather facility has 

been modified. the allowable emissions for the modification shall be 

determined as a permitted facility. 

(D) Standard permit facility-For a facility authorized 

by standard permit, other than §116.617(2) of this title (relating to 

Standard Permits List), the allowable emissions shall be the maximum 

emissions rate represented in the registration for the standard permit. 

(E) Special exemption facility-For a facility operating 

under a special exemption, the allowable emissions shall be the 

emissions rate represented in the original special exemption request. 

(F) The allowable emissions for a qualified facility 

shall not be adjusted by the voluntary installation of controls. 

BACT-Best Available Control Technology with consideration given to the technical practicability and the economic reasonableness of reducing or eliminating emissions from the facility. 

Facility-A discrete or identifiable structure, device, item. 

equipment, or enclosure that constitutes or contains a stationary 

source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not considered to be a 

facility. 

Grandfathered facility-Any facility that is not a new 

facility since it was constructed prior to the permit requirements of 

this subchapter. 

Maximum allowable emissions rate table (MAERT)-A 

table included with a preconstruction permit issued under this chapter 

that contains the allowable emission rates established by the permit 

for a facility. 

Modification of existing facility-Any physical change in, 

or change in the method of operation of, a facility in a manner 

that increases the amount of any air contaminant emitted by the 

facility into the atmosphere or that results in the emission of any 

air contaminant not previously emitted. The term does not include: 

(A) insignificant increases in the amount of any air 

contaminant emitted that is authorized by one or more TNRCC 

exemptions; 

(B) insignificant increases at a permitted facility; 

(C) maintenance or replacement of equipment components that do not increase or tend to increase the amount or change the 

characteristics of the air contaminants emitted into the atmosphere; 

(D) an increase in the annual hours of operation unless 

the existing facility has received a preconstruction permit or has been 

exempted, pursuant to the TCAA, §382.057, from preconstruction 

permit requirements; 

(E) a physical change in, or change in the method 

of operation of, a facility that does not result in a net increase in 

allowable emission of any air contaminant and that does not result in 

the emission of any air contaminant not previously emitted, provided 

that the facility: 

(i) has received a preconstruction permit or permit 

amendment or has been exempted pursuant to the TCAA, §382.057, 

from preconstruction permit requirements no earlier than 120 months 

before the change will occur; or 

(ii) uses, regardless of whether the facility has 

received a preconstruction permit or permit amendment or has been 

exempted pursuant to the TCAA. §382.057, an air pollution control 

method that is at least as effective as the BACT that TNRCC required 

or would have required for a facility of the same class or type as a 

21 TexReg 1579 February 27, 1996 Texas Register 
condition of issuing a permit or permit amendment 120 months before 

the change will occur; 

(F) a physical change in, or change in the method of 

operation of, a facility where the change is within the scope of a 

flexible permit; or 

(G) a change in the method of operation of a natural 

gas processing, treating, or compression facility connected to or part 

of a natural gas gathering or transmission pipeline which does not 

result in an annual emission rilte of any air contaminant in excess of 

the volume emitted at the maximum designed capacity, provided that 

the facility is one for which: 

(i) construction or operation started on or before 

September 1, 1971, and at which either no modification has occurred 

after September 1, 1971, or at which modifications have occurred 

only pursuant to standard exemptions; or 

(ii) construction started after September 1. 1971, 

and before March 1, 1972, and which registered in accordance with 

the TCAA, §382.060, as that section existed prior to September 1, 

1991. 

New facility -A facility for which construction is 

commenced after August 30. 1971, and no contract for construction 

was executed on or before August 30, 1971, and that contract 

specified a beginning construction date on or before February 29. 

1972. 

Qualified facility -An existing facility that satisfies the 

criteria of either subparagraph (E)(i) or (ii) under the definition of 

modification of existing facility in this section. 

Source -A point of origin of air contaminants. whether 

privately or publicly owned or operated. 

This agency hereby certifies that the section as adopted has 

been reviewed by legal counsel and found to be a valid exercise 

of the agency's legal authority. 

Issued in Austin, Texas, on February 14, 1996. 

TRD-9602153 

Kevin McCalla 

Director, Legal Services Division 

Texas NatLJ"al Resource Conservation Commission 

Effective date: March 7, 1996 

Proposal publication date: October 10, 1995 

For further information, please call: (512) 239-1955 

• • • 

Subchapter B. New Source Review Permits 

Permit Application 

30 T AC §§116.112, 116.116-116.118 

The amendments and new sections are adopted under the 

Texas Health and Safety Code, the Texas Clean Air Act 

(TCAA), §382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the 

TCAA. 

§116.116. Changes to Facilities. 

(a) Representations and conditions. All representations with 

regard to construction plans and operation procedures in an application for a permit, special permit, or special exemption, as well as any 

general and special conditions attached to the permit, special permit, 

or special exemption itself. become conditions upon which the subsequent permit, special permit, or special exemption are issued. 

(b) Permit amendments. Except as provided in subsection 

(e) of this section, it shall be unlawful for any person to vary from 

any representation or permit condition if the change will cause a 

change in the method of control of emissions, the character of the 

emissions, or will result in an increase in the discharge of the various 

emissions, unless application is made to the executive director to 

amend the permit or special permit in that regard and such amendment 

is approved by the executive director or the Texas Natural Resource 

Conservation Commission (TNRCC). Applications to amend a permit 

or special permit shall be submitted with a completed Form PI-1 and 

are subject to the requirements of §116.111 of this title (relating to 

General Application). 

(c) Permit alterations. 

(1) A pefrnit alteration is: 

(A) any change from a representation in a permit 

application that does not involve an increase m emission rates or 

a change in the character or method of control of emissions; or 

(B) any change in a general or special condition of a 

permit that does not involve an increase in emission rates or a change 

in the character or method of control of emissions; 

(C) a decrease in allowable emissions. 

(2) All requests for permit alterations which may result 

in an increase in off-property concentrations of air contaminants. 

involve a change in permit conditions, or affect facility or control 

equipment performance must receive prior approval by the executive 

director. The executive director shall be notified in writing of all 

other permit alterations. Any request for permit alteration shall 

include information sufficient to demonstrate that the change does 

not interfere with the owner or operator's previous demonstrations of 

compliance with the requirements of §116.111(3) of this title. 

(3) Permit alterations shall not be subject to the requirements of Best Available Control Technology identified in §116.111(3) 

of this title. 

(d) Standard exemption in lieu of permit amendment or 

alteration. Notwithstanding subsections (b) or (c) of this section. 

no permit amendment or alteration is required if the changes to the 

permitted facility qualify for an exemption under Subchapter C of this 

chapter (relating to Permit Exemptions) unless prohibited by permit 

condition as provided in §116.115 of this title (relating to Special 

Conditions). All such exempted changes to a permitted facility shall 

be incorporated into that facility's permit at such time as the permit 

is amended or renewed 

(e) Changes to qualified facilities. Notwithstanding any other 

subsection of this section, a physical or operational change may be 

made to a qualified facility if the change does not result in a net 

increase in allowable emissions of any air contaminant and does not 

result in the emission of any air contaminant not previously emitted. 

(l) In determining whether a change to a qualified facility 

results in a net increase in allowable emissions or the emission of any 

air contaminant not previously emitted, the effect on emissions of the 

following shall be considered: 

February 27, 1996 21 TexReg 1580 
• 

• 

(A) any air pollution control method applied to the 

qualified facility; 

(B) any decreases in allowable emissions from other 

qualified facilities at the same TNRCC air quality account number 

that have received a preconstruction permit or permit amendment no 

earlier than 120 months before the change will occur; and 

(C) any decrease in actual emissions from other 

qualified facilities at the same TNRCC air quality account number 

that are not included in subparagraph (B) of this paragraph. 

(2) The determination of whether a physical or operational 

change would result in a net increase in allowable emissions of any 

air contaminant or the emission of any air contaminant not previously 

emitted shall be based on the allowable emissions for air contaminant 

categories and any allowable emissions for individual compounds. If 

a physical or operational change would result in emissions of an air 

contaminant category or compound above the allowable emissions 

for that air contaminant category or compound. the amount above 

the allowable emissions must be offset by an equivalent decrease in 

emissions at the same facility or a different facility. In making this 

offset, the following subparagraphs apply. 

(A) The offset shall be based on the same time periods 

(e.g., hourly and annual rates) as the allowable emissions for the 

facility at which the change will occur. 

(B) Emissions of different compounds within the 

same air contaminant category may be interchanged. 

(C) For allowable emissions for individual compounds, any interchange shall adjust the emission rates for the different compounds in accordance with the ratio of the effects screening 

levels of the compounds. 

(D) For allowable emissions for air contaminant 

categories. interchanges shall use the unadjusted emission rates for 

the different compounds. 

(E) The effects screening level shall be determined by 

the executive director of the TNRCC. 

(F) An air contaminant category is a group of related 

compounds. such as volatile organic compounds. particulate matter. 

nitrogen oxides. and sulfur compounds. 

(3) Persons making changes to qualified facilities under 

this subsection shall comply with the applicable requirements of 

§116.117 of this title (relating to Notification of Changes to Qualified 

Facilities) and §116.118 of this title (relating to Pre-change Qualification). 

(4) As used in this subsection, the term "physical and 

operational changes" does not include: 

(A) construction of a new facility; or 

(B) changes to procedures regarding monitoring, 

determination of emissions and recordkeeping that are required 

by a permit. (5) If additional air pollution control methods are 

implemented for the purpose of making a facility a qualified facility, 

such additional control methods shall be at least as effective as 

Best Available Control Technology (BACT) required at the time the 

additional control methods are implemented. If additional control 

methods are implemented that are not at least as effective as such 

BACT. the facility may be determined to be a qualified facility only 

if the owner or operator can demonstrate that the control methods 

were implemented to comply with a law, rule. order, permit, or can 

demonstrate that the control method was implemented to resolve a 

documented citizen compliant. The implementation of any additional 

control methods shall be subject to the requirements of this chapter. 

(6) For purposes of this subsection and §116.117 of this 

title (relating to Documentation and Notification of Changes to 

Qualified Facilities). the consideration of decreases in allowable and 

actual emissions from other qualified facilities in accordance with 

paragraph (1) of this subsection shall be referred to as intraplant 

trading. The decreases in allowable and actual emissions shall be 

based on emission rates for the same time periods (e.g., hourly and 

annual rates) as the allowable emissions for the facility at which 

the change will occur and for which an intraplant trade is desired. 

Actual emissions shall be based on data that is representative of the 

emissions actually achieved from a facility during the relevant time 

period (e.g., hourly or annual rate). The allowable emissions from 

facilities that were never constructed shall not be use in intraplant 

trading. 

(7) The existing level of control may not be lessened for 

a qualified facility. 

§116.117. Documenuuion and Notification of Changes to Qualified 

Facilities.· 

(a) Persons making physical or operational changes to qualified facilities under the provisions of §116.116(e) of this title (relating 

to Changes to Facilities) shall maintain documentation. at the plant 

site demonstrating that the changes satisfy the requirements of that 

section. If the plant site is unmanned, the regional manager may 

authorize an alternative site to maintain this documentation. This 

documentation shall include quantification of all emission increases 

and decreases associated with the physical or operational change, a 

description of the physical or operational change. a description of 

any equipment being installed, and sufficient information as may be 

necessary to demonstrate that the project will comply with the Federal Clean Air Act, Title I, Parts C and D. This documentation shall 

be made available to representatives of the Texas Natural Resource 

Conservation Commission (TNRCC) upon request. 

(b) In addition to the documentation requirements under 

subsection (a) of this section, persons making such changes to 

qualified facilities shall comply with the following notification 

requirements. 

( 1) Annual report. For changes to qualified facilities for 

which there is no intraplant trading in accordance with §116.116(e)(1) 

of this title. an annual report shall be submitted to the appropriate 

TNRCC regiooal office by August I of each year which shall 

include all changes made under §116.116(e) during the immediately 

preceding annual period July 1-June 30. Changes for which 

notification has been previously submitted by PI-E form to 1NRCC 

under paragraphs (2) or (3) of this subsection or which have been 

incorporated into the permit for the facility need not be included in 

the annual report. The annual report shall contain a PI-E form for 

each change. The annual reporting period for a TNRCC air quality 

account and the due date of the annual report may be changed with 

the agreement of the 1NRCC regional office. 

(2) Post-change notification. For changes to qualified 

facilities for which there is intraplant trading below the reportable 

limit. notification of the change shall be submitted on a PI-E form 

21 TexReg 1581 February 27, 1996 Texas Register 
to the New Source Review Division of the TNRCC within 30 days 

after the change occurs. 

(3) Pre-change notification. For changes to qualified 

facilities for which there is intraplant trading above the reportable 

limit, notification of the change shall be submitted on a PI-E form to 

the New Source Review Division of the TNRCC before the change 

may occur. The change may occur after the receipt of written 

notification from the TNRCC that there are no objections, or 45 days 

after the notification is received by the TNRCC, whichever occurs 

first. 

(4) Reportable limit. The executive director shall establish reportable limits as follows: 

(A) an emission rate that is adjusted based on a factor 

that accounts for a ratio of the effects screening levels of the different 

compounds and the difference in location of emissions involved in 

an intraplant trade; or 

(B) an emission rate that results in a sum total of 

modeled ground level concentration for the account that shall not 

exceed two times the effects screening level. 

(c) For facilities that have received a preconstruction permit, 

all changes for which the notification procedure of subsection (b) of 

this section has been used shall be incorporated into the permit at 

such time as the permit is amended or renewed. 

(d) If a physical or operational change at a qualified facility 

will affect compliance with a permit special condition, notice shall be 

made to the TNRtC prior to the change. The notice shall identify the 

affected special condition and indicate the change needed or the desire 

to remove the special condition from the permit. The permit holder is 

relieved from complying with the permit special condition upon the 

filing of the notice provided the change complies with §116.116(e) 

of this title. 

(e) Nothing in this section shall limit the applicability of any 

federal requirement · 

§116.1 18. Pre-cllange Qualification. 

(a) If either of the following conditions exists, it will be 

necessary to establish that a facility is a qualified facility before a 

physical or operational change may be made under the notification 

procedure of §116.117 of this title (relating to Documentation and 

Notification of Changes to Qualified Facilities): 

( 1) the facility is a qualified facility on the basis of Best 

Available Control Technology and the requirement for the facility 

type has not been previously established by the executive director of 

theTNRCC; 

(2) the facility does not have allowable emissions established for an air contaminant relevant to the change in a maximum 

allowable emissions rate table, PI-8 form or PI-E form. 

(b) The pre-change qualification shall be made by submitting 

a PI-E form to the New Source Review Division. The facility shall 

be qualified in accordance with the information contained in the PIE form after re:ceipt of written notification frcm the TNRCC that 

there are no objections, or 45 days after the PI-E form is received 

by TNRCC, whichever occurs first. The pre-change qualification 

may be submitted at the same time as a pre-change notification under 

§116.117(b) of this title or at any other time prior to making a change 

to a qualified facility. 

This agency hereby certifies that the rule as adopted has been 

reviewed by legal counsel and found to be a valid exercise of 

the agency's legal authority. 

Issued in Austin, Texas, on February 14, 1996. 

TRD-9602155 

Kevin Mc:Cala 

Di'ector, Legal Services Division 

Texas Nattnl Resom:e Conservation Commission 

Effective date: March 7, 1996 

Proposal publication date: October 10, 1995 

For further information, please cal: (512) 239-1966 

• • • 

30 TAC §116.117 

The repeal is adopted under the Texas Health and Safety Code, 

the Texas Clean Air Act (TCAA), §382.017, which provides the 

TNRCC with the authority to adopt rules consistent with the 

policy and purposes of the TCAA. 

This agency hereby certifies that the rule as adopted has been 

reviewed by legal counsel and found to be a valid exercise of 

the agency's legal authority. 

Issued in Austin, Texas, on February 14, 1996. 

TRD-9602154 

Kevin McCalla 

Di'ector, Legal Services Division 

Texas Natlllll Resource Conservation Commission 

Effective date: March 7, 1996 

Proposal publication date: October 10, 1995 

For further information, please caD: (512) 239-1966 

• • • 

TITLE 31. NATURAL RESOURCES AND 

CONSERVATION 

Part XV. Texas Low-Level Radioactive 

Waste Disposal Authority 

Chapter 449. General Provisions 

Subchapter F. Above and Belowground Disposal 

31 T AC §449.71 

The Texas Low-Level Radioactive Waste Disposal Authority 

adopts new §449.71, relating to above and belowground dis· 

posal of low-level radioactive waste, without changes to the 

proposed text as published in the January 2, 1996, issue of the 

Texas Register (21 TexReg 22). 

The new section is adopted to inform the public of the Authority's 

rationale for selecting belowground disposal instead of above· 

ground disposal. Belowground disposal better protects public 

health and the environment than does aboveground disposal 

based on the factors set out in the rule. 

No comments were received in response to the published rule. 

Prior to publication, a draft of the proposed rule was circulated 

to interested parties. In response, Dr. Marvin Resnikoff 

FebrUilrJ 27, 1996 21 TexReg 1582 
The Structural Pest Control Board has withdrawn from consid· 

eration for permanent adoption the proposed amended section), 

which appeared in the December 19, 1995, issue of the Texas 

Register (20 TexReg 1 0876). 

Issued in Austin, Texas, on February 12, 1996. 

9602080 

Benny M. Mahthis, Jr. 

Executive Director 

Structural Pest Control Board 

Effective date: February 13, 1996 

For further information, please call: (512) 835-4066 

• • • 

Part I. Texas Natural Resource Conservation Commission 

Chapter 115. Control of Air Pollution From 

Volatile Organic Compounds 

Subchapter J. Administrative Provisions 

General Permits 

30 TAC §115.950 

The Texas Natural Resource ConseJVation Commission has 

withdrawn from consideration for permanent adoption the pro· 

posed repealed section, which appeared in the September 5, 

1995, issue of the Texas Register (20 TexReg 891 0). 

Issued in Austin, Texas, on February 15, 1996. 

9602219 

Kevin McCalla 

Director, Legal Services Division 

Texas Natural Resource Conservation Commission 

Effective date: February 15, 1996 

For further information, please call: (512) 239-1970 

• • • 

Chapter 116. Control of Air Pollution by Permits 

for New Construction or Modification 

Subchapter B. New Source Review Permits 

Permit Application 

30 TAC §116.119 

The Texas Natural Resource ConseJVatlon Comml11ion has 

withdrawn from consideration for permanent adoption the pro· 

posed new section, which appeared In the October 1 0, 1995, 

issue of the Texas Register (20 TexReg 8308). 

Issued in Austin, Texas, on February 14, 1996. 

9602156 

Kevin McCalla 

Director, Legal Services Division 

Texas Natural Resource Conservation Commission 

Effective date: February 15, 1996 

For further information, please call: (512) 239-1966 

• • • 

21 TexReg 1524 February 27, 1996 Texas Register