Technical Support Document 

Texas Chapter 116 – Control of Air Pollution by Permits for New Construction or 

Modification 

Subchapter B – New Source Review Permits 

Division 1 – Permit Application 

§116.115 and §116.120 

Rule Project Number: 

2003-003-116-AI 

March 5, 2010 

FOR FURTHER INFORMATION CONTACT: Ms. Melanie Magee, United States 

Environmental Protection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, 

Dallas, Texas 75202-2733, (214) 665-7161. 
2

Subject: Direct Final Approval of Revisions to the State Implementation Plan, Texas 

Administrative Code Title 30: Chapter 116, Subchapter B, Division 1, Sections 116.115 and 

116.120. 

Contents: 

I. Executive Summary 

II. Background 

III. Summary of State Submittals 

IV. Technical Review of State Submittals 

V. Recommended Agency Action 
3

I. Executive Summary 

On September 25, 2003, the Texas Commission on Environmental Quality (TCEQ) submitted a 

proposed revision to the Texas State Implementation Plan (SIP). This submittal revises the 

provisions of Title 30 of the Texas Administrative Code (TAC), Subchapter B, Division 1, 

section 116.115, General and Special Conditions and establishes a new section 116.120, Voiding 

of Permits. The TCEQ adopted this revision on August 20, 2003 to recodify and revise the 

existing language in 30 TAC 116.115(b)(2)(A) relating to the voiding of permits and extensions 

of time to begin construction and transfers these provisions from section 116.115 to a new 

section 116.120. 

Within this review, EPA will determine if the state adopted revisions to the General and Special 

Conditions and Voiding of Permits provisions will improve air quality, comply with the Clean 

Air Act and EPA regulations, and be consistent with EPA’s policies. This review will only cover 

the revisions germane to section 116.115(b)(2)(A) and the new section 116.120 which were 

submitted by TCEQ to EPA on September 25, 2003. The remaining severable revisions 

contained in the September 25, 2003 SIP submittal are under review or addressed in separate 

actions. 

II. Background 

The Texas air pollution control rules for the General and Special Conditions are found at 30 TAC 

Chapter 116, Subchapter B, Division 1, section 116.115. The currently approved SIP includes 

section 116.115 as adopted by TCEQ on November 20, 2002, and approved by EPA on 

September 6, 2006 (71 FR 52664). No action was taken on 116.115(c)(2)(B)(ii)(I) because it 

implements the requirements of section112(g) of the Act which are outside the scope of the SIP. 

TCEQ has since adopted revisions to section 116.115 on August 20, 2003 and submitted those 

revisions to EPA on September 25, 2003. The amendment of section 116.115(b)(2)(A) revises 

and recodifies the provisions relating to the voiding of permits and extensions of time to begin 

construction to a new section 116.120. The new section116.120 is located in 30 TAC Chapter 

116, Subchapter B, Division 1, Permit Application. This new section addresses the voiding of 

permits and allows additional time to begin construction of a project authorized with a new 

source review permit. 

Prior to the September 2003 submittal, a separate (and unrelated) section 116.120 was adopted 

by TCEQ (formerly TNRCC) on June 17, 1998 and became effective on July 8, 1998, under 

Division 2, Compliance History. The section was submitted to EPA by TCEQ on July 22, 1998 

and was approved by EPA on September 18, 2002 (67 FR 58697), which added section 116.120 

into the Texas SIP under Division 2, Compliance History. 

 

In 2002, TCEQ repealed all sections under Division 2, Compliance History (including section 

116.120), and replaced them with provisions for Compliance History under 30 TAC Chapter 60. 

TCEQ has not submitted to EPA for consideration of approval the revisions to Chapter 60 nor 

the repeal of the sections under Division 2. Therefore, EPA has not reviewed and acted on these 

changes. With this SIP revision, the Texas SIP will contain two sections referencing section 
4

116.120; however, the sections would be located in separate divisions and the subject matter 

would be totally unrelated. 

We have evaluated the revised rules for enforceability and consistency with the Clean Air Act 

(CAA), 40 CFR Part 51, and EPA policy and guidance. From this evaluation, we have 

determined that the portions of the submitted SIP revisions included in this action are consistent 

with EPA policies, and will enhance the existing Texas SIP. 

III Summary of State Submittals 

A. Current SIP. The current approved provision for section 116.115 was submitted to EPA 

by TCEQ on December 9, 2002 and was approved by TCEQ on November 20, 2002. 

EPA approved the rule on November 14, 2003 (68 FR 64543), effective December 15, 

2003. However, no action was taken on 116.115(b)(2)(C)(iii) and 

116.115(c)(2)(B)(ii)(I). Following EPA’s approval, a SIP revision was submitted to EPA 

by TCEQ on April 12, 2001 and was approved by TCEQ on March 7, 2001. EPA 

approved the revisions submitted April 12, 2001 on September 6, 2006 (71 FR 52664), 

effective October 6, 2006. No action was taken on 116.115(c)(2)(B)(ii)(I). This 

provision implements the requirements of section 112(g) of the Act which are outside the 

scope of the SIP. 

B. September 25, 2003, SIP Submittal. Texas submitted a SIP revision to section 116.115 

(adopted August 20, 2003, effective September 14, 2003) that amended section 116.115 

to recodify the language in section 116.115(b)(2)(A) relating to the voiding of permits 

and extensions of time to begin construction and transfers this language from section 

116.115 to a new section 116.120. The new section 116.120 addresses the voiding of 

permits and contains language that was SIP approved from section 116.115 with 

revisions as discussed herein. 

The current SIP provision at 30 TAC 116.115(b)(2)(A) authorizes the Executive 

Director to grant an additional 18-month extension. This language was transferred to the 

new section 116.120 and relates to the grant of authority to the Executive Director to 

extend permits for an additional 18-months. Thus, this action is a recodification of the 

SIP Permit Extension requirements. 

 The new 30 TAC 116.120(b) and (c) add new criteria that must be met before the 

Executive Director may issue the permit extensions. The new criteria are that the permit 

will be reviewed for its underlying best available control technology (BACT), lowest 

achievable emission rate (LAER), offsets, and netting determinations before the first 

extension will be granted. We are approving portions of 30 TAC 116.120(b) that grants 

authority to extend permits and adds the new criteria for permit extensions. 

 The two new subsections also add new authority for the Executive Director to 

issue a second 18-month extension. There must be a health effects review before this 

second permit extension may be granted. This second permit extension would be 

available in the case of a construction delay caused by litigation, not of the permit 

holder’s origin, associated with the issuance of the permit. The Executive Director could 

also issue an extension if the permit holder has spent, or has committed to spend, 10% of 

the estimated cost of construction to a maximum of $5 million. As part of the Texas 
5

Permit Extension Program, EPA is proposing to approve 30 TAC 116.120(b) and (c), as 

meeting the Major and Minor NSR and NNSR SIP. 

Comments Received. The comment period for this State rulemaking closed on August 

12, 2002. The TCEQ received one oral comment and 35 written comments. The SIP 

submittal included a copy of all comments received and the response to each. 

EPA Region 6 did submit a comment letter for this SIP package. The comment letter 

references a concern with section 116.120; however, the comments did not reference any 

issues with the proposed section 116.115 revision. In reference to section 116.120, EPA 

provided the following comments: 

EPA Comment 1: Paragraph (1) requires the reevaluation of BACT as a condition for 

receiving an extension. Paragraph (1) should further provide for reevaluation of the 

lowest achievable emission rate (LAER) when that is the control measure required under 

the applicable permitting program for the source. This is necessary to meet the 

requirements of 40 CFR 51.165, 51.166, and section 172(c)(5) and 173 of the Clean Air 

Act. 

EPA Comment 2: The introductory language requires reevaluation of BACT (or 

LAER), netting and offsets. However, it is unclear whether these reevaluations apply to 

both extensions or only to the first extension. As written, these reevaluations appear to 

apply only to the first extension. The rule should clearly require these reevaluations for 

both extensions. This is necessary to meet the requirements of 40 CFR 51.165, 51.166, 

and § 172(c)(5) and 173 of the Clean Air Act. 

EPA Comment 3: In Paragraph (1)(A) and (B), criteria is proposed for a second 

extension that requires a source to demonstrate that emissions from the facility will 

comply with all rules and regulations of the commission and the intent of the Texas Clean 

Air Act (TCAA), including protection of the public’s health and physical property. As 

proposed, these demonstrations apply on to the second extension. 

TCEQ Response and EPA Analysis: TCEQ responded by changing the rules in the 

adopted rule to require both BACT and LAER reviews as an applicable condition for a 

second extension. By changing the adopted rules to include a BACT and LAER analyses 

for an extension, the necessary demonstrations will be provided for an extension. 

 

IV. Technical Review of the State Submittal 

The technical review of the September 25, 2003 proposed SIP revisions consists of four elements 

of review. The elements considered during this review are contained in the Appendices and 

include the following. 

Appendix A. Evaluation of the September 25, 2003 SIP submittal with respect to Part 

51, Appendix V Completeness Determination 

Appendix B. Evaluation of the September 25, 2003 SIP submittals with respect to the 

requirements of 40 CFR Part 51 
6

Appendix C. Evaluation of the September 25, 2003 SIP submittal with respect to 

§110(l) of the Clean Air Act. 

Appendix D. Review of Proposed Revisions against the SIP Approved Regulations 

The Part 51, Appendix V Completeness Determination sets forth the minimum criteria for 

determining whether a submitted SIP is an official submission for purposes of review. The 

review with respect to Part 51 is presented as a section-by-section review of the submittal in 

comparison to 40 CFR Part 51. This analysis is used to determine whether the submittal satisfies 

the requirements for preparation, adoption, and submittal of a SIP revision. Section 110(l) of the 

Clean Air Act states that a SIP revision must not interfere with attainment or reasonable further 

progress or any other applicable requirement of the Act. To demonstrate compliance with 

section 110(l) a review has been completed for the proposed SIP revisions. Finally, a word-byword comparison of the current SIP approved section and the proposed SIP revisions are 

included in the section entitled “Review of Proposed Revisions against the SIP Approved 

Regulations.” From this Technical Review, the basis is formed for the determination of whether 

or not the September 25, 2003 SIP submittal was in agreement with the CAA and other EPA 

policies or guidance. 

V. Recommended Agency Action 

The technical analysis provided in the preceding sections has compared the applicable sections 

of the CAA and 40 CFR Part 51 to TCEQ’s September 25, 2003 proposed revisions to the SIP, 

enacted at 30 TAC Chapter 116, Subchapter B, Division 1, Sections 116.115 and 116.120. 

With this analysis we are approving the revisions to the Texas SIP submitted to EPA on 

September 25, 2003 that relate to the Voiding of Permits, as part of the Texas NSR SIP. EPA is 

approving the revisions that relate to Extensions of Permits as part of the Texas NSR SIP for 

Major and Minor NSR and are merely the recodification of the existing SIP requirement. EPA is 

also proposing to approve the new substantive portions of the revisions that add new criteria for 

the granting of the permit extensions as part of the Texas NSR SIP for Major and Minor NSR 

and NNSR. 
7

Appendix A. Evaluation of the September 25, 2003 and January 24, 2008 SIP submittals 

with respect to Part 51, Appendix V Completeness Determination 

Appendix V of 40 CFR Part 51 outlines the minimum criteria for determining whether a 

State implementation plan is considered an official submission for purposes of review under 

§51.103. The attached checklist outlines the basic criteria included under 2.1 and 2.2 of 

Appendix V. However, Section 2.3 of Appendix V describes the “parallel process procedure” 

which EPA had previously adopted to expedite the review of plans. This feature is being deleted 

from the next revised CFR on completeness. Therefore, it is not included in the checklist. 
8

SIP Completeness Checklist 

Rule Log No.: 2003-003-116-AI

When preparing a SIP revision request, the SIP reviewer should go through this list to help 

identify that the package submitted to EPA is complete. States can use the check list to assure 

SIP submittals meet Appendix V criteria. 

Administrative Materials (2.1) 

1. The package is sent with a formal submittal letter from the Governor or his or her 

designee requesting EPA’s approval of the revision. 

The SIP revision was submitted by a letter from Robert Huston, Chairman of the Texas Natural 

Resource Conservation Commission, dated September 25, 2003. Governor Rick Perry 

designated that the Chairman of the Texas Natural Resource Conservation Commission would 

be his designee for SIP submittals in a letter dated May 21, 2002. 

2 Evidence is included that the State has adopted the revision in the State code or body of 

regulations, or that the State has issued the permit, order, consent agreement (hereafter 

document) in final form. This evidence would include the date of adoption or final issuance and 

the effective date of revision, if different from adoption/issuance date. 

The revisions were adopted by the Texas Commission on Environmental Quality (formerly the 

Texas Natural Resource Conservation Commission) on August 20, 2003 and became effective 

September 14, 2003. 

3. Evidence is included that the State has necessary legal authority under State law to adopt 

and implement the revision, e.g., a citation of the appropriate State authority. 

The authority for promulgating changes to the Texas State Implementation Plan is found in 

Chapter 382 of the Texas Health and Safety Code. 

4. A copy is included of the actual regulation or document submitted for approval and 

incorporation by reference into the SIP including an indication of the changes made to the 

existing approved plan where applicable. The submittal shall be a copy of the official State 

regulation document signed, stamped, and dated by the appropriate State official indicating that 

it is fully enforceable by the State. The effective date of the regulation document shall, 

whenever possible, be indicated in the document itself. 

The September 25, 2003, submittal included a copy of the official State regulation document, 

signed, stamped, and dated by Robert J. Huston, Chairman of the Texas Natural Resource 

Conservation Commission. 

5. Evidence is included that the State followed all the procedural requirements of its laws 

and/or its constitution in the conducting and completing the adoption/issuance of the plan. 
9

The authority for promulgating changes to the Texas State Implementation Plan is found in the 

Texas Clean Air Act, Chapter 382 of the Texas Health and Safety Code. 

6. Evidence is included that public notice was given of the proposed changes consistent 

with the procedures approved by EPA, including the date of publication of such notice, (e.g., 

notarized or certified copies of any public notices published in newspapers). (The notice should 

be at least 30 days prior to the public hearing(s).) 

Notices of public hearing were published on March 23, 2003 in the Fort Worth Star-Telegram 

and March 24, 2003 in the Austin American Statesman and the Houston Chronicle. 

7. A certification is included indicating that public hearing(s) was/were held in accordance 

with the information provided in the public notice(s) and the State's laws and constitution, if 

applicable. 

The order adopting the new and amended section to 30 TAC Chapter 116 provided evidence that 

the public hearing was conducted pursuant to Texas Health and Safety Code section 382.017 

and section 51.102. 

8. A compilation of public comments and the State's response is included. 

The SIP submittal package did include a compilation of public comments and the State’s 

responses. The TCEQ received 7 written comments and no oral comments from the public 

hearing. 

Technical Support (2.2) 

The State should include the following technical information in its SIP revision request package. 

1. Identification of all regulated pollutants affected by the revision is included. 

This is not applicable to the SIP revision under review. This SIP revision addresses the General 

and Special Conditions and Voiding of Permits under Chapter 116. 

2. Identification of the locations of affected sources including the EPA 

attainment/nonattainment designation of the locations and the status of the attainment plan for 

the affected area(s) is included. 

This SIP revision applies to new construction and major modifications statewide. 

3. Quantification of the changes in SIP allowable emissions from the affected sources is 

included. (Examples include estimates of changes in current actual emissions from affected 

sources and/or, where appropriate, quantification of changes in actual emissions from affected 

sources through calculations of the differences between certain baseline levels and allowable 

emissions anticipated if the revisions were approved.) 
10

Quantification of the changes in SIP allowable emissions from the affected sources is not 

applicable to this SIP revision. 

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration and 

visibility as applicable would be protected if the revision were approved and implemented. 

The SIP submittal does include revisions to the PSD and NSR permitting programs. The State’s 

response to comments addressed concerns about the protection of the NAAQS and PSD 

increments associated with the proposed SIP revisions. However, the state did not include a 

demonstration. 

5. FOR REDESIGNATIONS: 

a. Is there a fully approved maintenance plan for the primary ambient air quality 

standards for at least 10 years as required by §175A of the Clean Air Act? 

Not applicable. 

b. Are contingency measures included? 

Not applicable. 

6. Modeling information, if applicable, is required to support the propose revision. 

Modeling information is not necessary to support the SIP revision. 

7. Evidence is included where necessary, that emission limitations are based on continuous 

emission reduction technology (e.g., add-on controls, industrial/process equipment designs, 

reformulated materials, etc.). 

Evidence of emission limitations based on CEM technology is not applicable. 

8. Evidence is included indicating that a SIP revision contains emission limitations, work 

practice standards, and recordkeeping/reporting requirements to ensure stated emission levels. 
11

Enforceability is determined on a case-by-case basis in each individual permit. 

9. Compliance/enforcement strategies including how compliance will be determined in 

practice (including at what frequency). 

Determination of compliance is specified on a case-by-case basis in each individual permit. 

10. As appropriate, special economic and technological justifications are included per 

applicable EPA policies or an explanation why such justifications are not necessary should be 

included. For example, requests for alternative RACT may require such justification. 

These justifications are not necessary for this SIP revision. 

The SIP submittal of Rule Log No.: 2003-003-116-AI meets the completeness criteria. 
12

Appendix B. Evaluation of the September 25, 2003 SIP submittal with respect to the 

requirements of 40 CFR Part 51

Requirements for the preparation, adoption, and submittal of implementation plans can be found 

in 40 CFR Part 51. The revisions to Chapters 116.115-General and Special Conditions and 

116.120 –Voiding of Permits were evaluated against the applicable requirements in Part 51. The 

analysis is included in Table 1 below. 

Part 51-Requirements for Preparation, Adoption, 

and Submittal of Implementation Plans 

§116.115, General and Special Conditions and 

§116.120, Voiding of Permits 

Submitted 9/25/03

Subpart A – Emission Inventory Reporting 

Requirements 

Requirements found in Part 51 Subpart A are not 

applicable to the section under review in this document. 

The revisions to §116.115 and §116.120 provides for the 

voiding of permits and extensions of time to begin 

construction and are not concerned with emission 

inventory reporting requirements for TCEQ. 

Subpart B – E [Reserved] Not Applicable 

Subpart F – Procedural Requirements 

§51.100 Definitions §51.100 is not applicable to §116.115 and §116.120 

under review in this TSD. 

§51.101 Stipulations §51.101 is not applicable to the §116.115 and §116.120 

under review in this TSD. 

§51.102 Public Hearings 

• States must conduct one or more public 

hearings; 

• Public hearings will only be held after 

reasonable notice, given at least 30 days 

prior to the date of the hearing; and 

• The state must submit with the revision a 

certification that the hearing was held in 

accordance with this section. 

Rule Log No 2003-003-116-AI

• TCEQ held a public hearing on this rule package in 

Austin, Texas on April 24, 2003. 

• The public hearing was held after reasonable notice 

was given. TCEQ published notice of the public 

hearing in the following newspapers on the dates listed 

below for this rule package: 

• Austin American Statesman –March 24, 2003; 

• Fort Worth Star Telegram –March 23, 2003; 

• Houston Chronicle – March 24, 2003. 

• Unable to locate the certification that the public 

hearings were held in accordance with §51.102. 

§51.103 Submission of plans, preliminary review of 

plans 

• The state makes an official plan 

submission to EPA only when the 

submission conforms to the requirements 

of Part 51, Appendix V 

• The state delivers 5 copies of the plan with 

a letter giving notice of the action to the 

EPA regional office. 

The rule package meets the requirements for 

completeness. 

§51.104 Revisions 

• States may revise the plan from time to 

time 

• EPA will approve revisions only after 

appropriate public hearing requirements 

have been met; 

• Revisions must be submitted in accordance 

with §51.103. 

Robert Huston, Chairman of the TCEQ, submitted the 

Chapter 116 revisions on September 30, 2003 as a SIP 

revision. 

Subpart G – Control Strategy Requirements found in 51, Subpart G are not applicable 
13

to the section under review in this document. The 

revisions to §116.115 and §116.120 provides for the 

voiding of a permit and extensions of time to begin 

construction and is not concerned with control strategies 

necessary to attain or maintain NAAQS. 

Subpart H – Prevention of Air Pollution 

Emergency Episodes 

Requirements found in 51, Subpart H are not applicable 

to the section under review in this document. The 

revisions to §116.115 and §116.120 provides procedures 

for the voiding of a permit and extensions of time to 

begin construction and is not concerned with air 

pollution emergency episode plans. 

Subpart I – Review of New Sources and 

Modifications 

§51.160 Legally Enforceable Procedures EPA has approved the nonattainment and PSD portions 

of the TCEQ permitting program as sufficient to 

determine whether the proposed construction or 

modification results in a violation of the control strategy 

and/or attainment or maintenance of the NAAQS. 

Therefore, TCEQ has the necessary legal authority to 

implement and enforce the permit revision procedures in 

accordance with the requirements of the CAA.

§51.161 Public availability of information The TCEQ provided the public the opportunity to 

participate in stakeholder meetings in the rulemaking 

development process, and the public received comment 

periods on the proposed plan. 

§51.162 Identification of responsible agency The Texas SIP identifies the Texas Commission on 

Environmental Quality (TCEQ) as the organization that 

will develop, implement, and enforce the SIP. 

§51.163 Administrative Procedures Texas enforcement provisions are not typically included 

in individual rules but are separately codified. TCEQ 

has the necessary legal authority to implement and 

enforce the permit revision procedures in accordance 

with the requirements of the CAA. 

§51.164 Stack Height Requirements Requirements found in §51.164 are not applicable to the 

sections under review in this document. 

§51.165 Permit Requirements The TCEQ Program for the Control of Air Pollution by 

Permits for New Construction or Modification (Chapter 

116 – PSD/NNSR Review) has been previously 

approved by EPA as addressing all requirements of 

§51.165. The revisions to the SIP – §116.115 and 

§116.120 do not substantively change our determination 

that the TCEQ Program for the Control of Air Pollution 

by Permits for New Construction or Modification 

addresses the requirements of §51.165. 

§51.166 Prevention of Significant Deterioration of 

Air Quality 

The TCEQ Program for the Control of Air Pollution by 

Permits for New Construction or Modification (Chapter 

116 – PSD/NNSR Review) has been previously 

approved by EPA as addressing all requirements of 

§51.166. The revisions to the SIP – §116.115 and 

§116.120 do not substantively change our determination 

that the TCEQ Program for the Control of Air Pollution 

by Permits for New Construction or Modification 

addresses the requirements of §51.166. 

Subpart J – Ambient Air Quality Surveillance Requirements found in 51, Subpart J are not applicable 

to the sections under review in this document. 
14

Subpart K – Source Surveillance Requirements found in 51, Subpart K are not applicable 

to the sections under review in this document. 

Subpart L – Legal Authority The revisions to Chapter 116 were developed and 

submitted in accordance with the Texas Clean Air Act, 

Chapter 382 of the Texas Health and Safety Code. The 

Texas Health and Safety Code and the enforcement 

provisions in the Texas Water Code provide TCEQ the 

necessary legal authority to implement the SIP. 

Subpart M – Intergovernmental Consultation Requirements found in 51, Subpart M are not applicable 

to the section under review in this document. 

Subpart N – Compliance Schedule Requirements found in 51, Subpart N are not applicable 

to the sections under review in this document. 

Subpart O – Miscellaneous Plan Content 

Requirements 

• Each plan must include a description of 

resources available to the State at the date 

of the submittal of the plan and during the 

next 5-years. 

• Copies of all rules and regulations that are 

necessary to attain and maintain the 

NAAQS must be submitted. 

• Each plan must provide for public 

notification when a standard has been 

violated. 

• During the development of the Chapter 116 SIP 

revisions, the TCEQ determined that their fiscal and 

manpower resources are adequate and will not be 

adversely affected through the implementation of the 

revisions to the New Source Review Permitting 

Program. This analysis is documented in the 

preamble to the proposed and final rulemakings. 

• The revisions to §116.115 and §116.120 do not 

establish new emission limits or control strategies; 

therefore it is not necessary that a copy of all rules and 

regulations related to attaining or maintaining the 

NAAQS be submitted. 

• Additionally, while a procedure for the voiding of 

permits and extensions of time to begin construction 

are contained in §116.115 and for the voiding of 

permits and extensions of time to begin construction 

in §116.120, the revisions in this SIP submittal do not 

revise the public notice aspects of the permit 

programs. Therefore it is not necessary for this SIP 

submittal to establish procedures whereby the public 

will be notified of NAAQS violations.

Subpart P- Protection of Visibility The §116.115 and §116.120 revisions are not submitted 

as part of Texas’ plan to protect visibility. 

Subpart Q – Reports The §116.115 and §116.120 revisions do not revise the 

existing reporting requirements for the emission 

inventory in the Texas SIP. 

Subpart R – Extensions The §116.115 and §116.120 revisions are not a request 

for an 18-month extension. 

Subpart S – Inspection/Maintenance Program 

Requirements 

Requirements found in 51, Subpart S are not applicable 

to the section under review in this document. 

Subpart T – Conformity to State or Federal 

Implementation Plans of Transportation Plans, 

Programs, and Projects Developed, Funded, or 

Approved Under Title 23 U.S.C. or the Federal 

Transit Laws 

The §116.115 and §116.120 revisions do not interfere 

with or change the transportation conformity budgets 

developed for each nonattainment and maintenance area 

pursuant to Subpart T. 

Subpart U – Economic Incentive Programs Requirements found in 51 Subpart U are not applicable 

to the sections under review in this document. Subpart U 

establishes requirements for statutorily mandated EIPs. 

Subpart W – Determining Conformity of General 

Federal Actions to State or Federal 

Implementation Plans 

The §116.115 and §116.120 revisions do not change or 

modify the Texas procedures used to determine 

conformity of federal actions, consistent with subpart W. 

Subpart X – Provisions for Implementation of 8-

Hr Ozone NAAQS 

Requirements found in 51 Subpart X are for the 

implementation of the 8-hour ozone NAAQS. The 
15

§116.115 and §116.120 revisions do not change the 

implementation of the 8-hour ozone NAAQS. 

Subpart Y – Mitigation Requirements The §116.115 and §116.120 revisions do not create 

procedures by which Texas could exclude air quality 

data due to exceptional events. 

Subpart Z – Provisions for Implementation of 

PM2.5 National Ambient Air Quality Standards 

Requirements found in 51 Subpart Z are for the 

implementation of the PM2.5 NAAQS. The §116.115 

and §116.120 revisions do not establish procedures for 

implementing the PM2.5 NAAQS. 
16

Appendix C. Evaluation of the September 25, 2003 SIP Submittal with respect to section 

110(l) of the Clean Air Act. 

Section 110(l) of the Clean Air Act states: 

Each revision to an implementation plan submitted by a State under this Act shall be 

adopted by such State after reasonable notice and public hearing. The Administrator 

shall not approve a revision of a plan if the revision would interfere with any applicable 

requirement concerning attainment and reasonable further progress (as defined in 

section 171), or any other applicable requirement of this Act. 

Thus, under §110(l), this SIP revision must not interfere with attainment or reasonable further 

progress or any other applicable requirement of the Act. 

Because this analysis only focuses on the revisions to sections 116.115 and 116.120, the 110(l) 

analysis will also only focus on severable portions of the September 23, 2003 SIP revision. The 

amendment of section 116.115 removes language relating to the voiding of permits and 

extensions of time to begin construction and transfers this language (with revisions) to a new 

section 116.120. This new section addresses the voiding of permits and allows additional time to 

begin construction of a project authorized with a new source review permit. 

The reviewed revision to the General and Special Conditions and Voiding of Permits sections 

will not interfere with attainment or reasonable further progress or any other applicable 

requirement of the Act because the revision under review with this action revises and recodifies 

the existing section 116.115(b)(2)(A) to a new section 116.120. The revisions approved with 

this action will not interfere with the SIP-approved functionality of the Texas Permit Voiding 

Program which has already been demonstrated to be consistent with section 110(l) through our 

September 6, 2006 approval.
17

Appendix D. Review of Proposed Revisions against the SIP Approved Regulations 

§116.115. General and Special Conditions. 

The current SIP was submitted to EPA by TCEQ on December 9, 2002 and was approved 

by TCEQ on November 20, 2002. EPA approved the rule on November 14, 2003 (68 FR 

64543), effective December 15, 2003. However, no action was taken on 

116.115(b)(2)(C)(iii) and 116.115(c)(2)(B)(ii)(I). 

A SIP revision was submitted to EPA by TCEQ on April 12, 2001 and was approved by 

TCEQ on March 7, 2001. EPA approved the revisions on September 6, 2006 (71 FR 

52664), effective October 6, 2006. No action was taken on 116.115(c)(2)(B)(ii)(I). This 

provision implements the requirements of §112(g) of the Act which are outside the scope 

of the SIP. 

The SIP revision included for review was submitted to EPA by TCEQ on September 25, 

2003 and was adopted by TCEQ on August 20, 2003. 

§116.115. General and Special Conditions 

Current SIP1 Pending SIP Revision Comments 

(b) General conditions. Holders of 

permits, special permits, standard 

permits, and special exemptions shall 

comply with the following: 

 

(1) the general conditions contained in 

the permit document if issued or 

amended prior to August 16, 1994; or 

 

(2) the following general conditions if 

the permit or amendment is issued or 

amended on or after August 16, 1994, 

regardless of whether they are 

specifically stated within the permit 

document. 

 

(A) Voiding of permit. A permit or 

permit amendment under this chapter is 

automatically void if the permit holder 

does one of the following: 

(A) (B) Report of construction progress. 

The permit holder shall report start of 

construction, construction interruptions 

exceeding 45 days, and completion of 

construction. The report shall be given to 

the appropriate regional office of the 

commission not later than 15 working 

days after occurrence of the event. 

Approval.

(A) was moved to 

§116.120 in the 

9/25/03 SIP 

revision. The SIP 

revision 

renumbered (B) to 

(A). 

(i) fails to begin construction within 18 

months of date of issuance. The 

executive director may grant a one-time 

18-month extension to the date to begin 

construction; 

Approval. (i) was 

moved to 

§116.120 in the 

9/25/03 SIP 

revision. 

 

1

 As adopted by TCEQ November 20, 2002, effective December 11, 2002. As approved by EPA 

November 14, 2003 (68 FR 64543) effective December 15, 2003 and does not include sections 

116.115(b)(2)(C)(iii) and 116.115(c)(2)(B)(ii)(I). As approved by EPA September 6, 2006 (71 FR 52664) 

effective October 6, 2006 and does not include subsection 116.115(c)(2)(B)(ii)(I). 
18

(ii) discontinues construction for more 

than 18 consecutive months prior to 

completion; or 

Approval. (ii) 

was moved to 

§116.120 in the 

9/25/03 SIP 

revision. 

(iii) fails to complete construction within 

a reasonable time. 

Approval. (iii) 

was moved to 

§116.120 in the 

9/25/03 SIP 

revision. 

(B) Report of construction progress. The 

permit holder shall report start of 

construction, construction interruptions 

exceeding 45 days, and completion of 

construction. The report shall be given to 

the appropriate regional office of the 

commission not later than 15 working 

days after occurrence of the event. 

(B) (C) Start-up notification. Approval. The 

SIP revision 

renumbered (C) to 

(B). 

(i) The permit holder shall notify the 

appropriate air program regional office of 

the commission prior to the 

commencement of operations of the 

facilities authorized by the permit. The 

notification must be made in such a 

manner as to allow a representative of the 

commission to be present at the 

commencement of operations. 

Approval.

(ii) The permit holder shall provide a 

separate notification for the 

commencement of operations for each 

unit of phase construction, which may 

involve a series of units commencing 

operations at different times. 

Approval.

(iii) Prior to operation of the facilities 

authorized by the permit, the permit 

holder shall identify to the Office of 

Permitting, Remediation, and Registration 

the source or sources of allowances to be 

utilized for compliance with Chapter 101, 

Subchapter H, Division 3 of this title 

(relating to Mass Emissions Cap and 

Trade Program). 

Approval.

(C) Start-up notification (C) (D) Sampling requirements Approval. The 

SIP revision 

renumbered (D) to 

(C). 

(i) The permit holder shall notify the 

appropriate air program regional office 

of the commission prior to the 

commencement of operations of the 

facilities authorized by the permit. The 

notification must be made in such a 

manner as to allow representative of the 

commission to be present at the 

commencement of operations. 

(i) If sampling is required, the permit 

holder shall contact the commission’s 

Office of Compliance and Enforcement 

prior to sampling to obtain the proper data 

forms and procedures. 

Approval.
19

(ii) The permit holder shall provide a 

separate notification for the 

commencement of operations for each 

unit of phased construction, which may 

involve a series of units commencing 

operations at different times. 

(ii) All sampling and testing procedures 

must be approved by the executive 

director and coordinated with the regional 

representatives of the commission. 

Approval.

(iii) Prior to operation of the facilities 

authorized by the permit, the permit 

holder shall identify to the Office of 

Permitting, Remediation, and 

Registration the source or sources of 

allowances to be utilized for compliance 

with Chapter 101, Subchapter H, 

Division 3 of this title (relating to Mass 

Emissions Cap and Trade Program). 

(iii) The permit holder is also responsible 

for providing sampling facilities and 

conducting the sampling operations or 

contracting with an independent sampling 

consultant. 

Approval. 

Current SIP was 

EPA approved 

9/6/06 (71 FR 

52664), effective 

10/6/ 06. 

(D) Sampling requirements. (D) (E) Equivalency of methods. The 

permit holder must demonstrate or 

otherwise justify the equivalency of 

emission control methods, sampling or 

other emission testing methods, and 

monitoring methods proposed as 

alternatives to methods indicated in the 

conditions of the permit. Alternative 

methods shall be applied for in writing 

and must be reviewed and approved by 

the executive director prior to their use in 

fulfilling any requirements of the permit. 

Approval. The 

SIP revision 

renumbered (E) to 

(D) 

(i) If sampling is required, the permit 

holder shall contact the commission’s 

Office of Compliance and Enforcement 

prior to sampling to obtain the proper 

data forms and procedures. 

 

(ii) All sampling and testing procedures 

must be approved by the executive 

director and coordinated with the 

regional representatives of the 

commission. 

 

(iii) The permit holder is also responsible 

for providing sampling facilities and 

conducting the sampling operations or 

contracting with an independent 

sampling consultant. 

 

(E) Equivalency of methods. The permit 

holder must demonstrate or otherwise 

justify the equivalency of emission 

control methods, sampling or other 

emission testing methods, and 

monitoring methods proposed as 

alternatives to methods indicated in the 

conditions of the permit. Alternative 

methods shall be applied for in writing 

and must be reviewed and approved by 

the executive director prior to their use 

in fulfilling any requirements of the 

permit. 

(E) (F) Recordkeeping. The permit holder 

shall: 

Approval. The 

SIP revision 

renumbered (F) to 

(E). 
20

(i) maintain a copy of the permit along 

with records containing the information 

and data sufficient to demonstrate 

compliance with the permit, including 

production records and operating hours; 

Approval.

(ii) keep all required records in a file at 

the facility site. If, however, the facility 

site normally operates unattended, records 

must be maintained at an office within 

Texas having day-to-day operational 

control of the facility site; 

Approval.

(iii) make the records available at the 

request of personnel from the commission 

or any local air pollution control agency 

having jurisdiction over the site. Upon 

request, the commission shall make any 

such records of compliance available to 

the public in a timely manner; 

Approval.

(iv) comply with any additional 

recordkeeping requirements specified in 

special conditions attached to the permit; 

Approval.

(v) retain information in the file for at 

least two years following the date that the 

information or data is obtained; and 

Approval.

(vi) for persons certifying and registering 

a federally-enforceable emission 

limitation in accordance with §116.611 of 

this title(relating to Registration To Use a 

Standard Permit), retain all records 

demonstrating compliance for at least five 

years. 

Approval.

(F). Recordkeeping. The permit holder 

shall: 

(F) (G) Maximum allowable emission 

rates. The total emissions of air 

contaminants from any of the sources of 

emissions must not exceed the values 

stated on the table attached to the permit 

entitled “Emission Sources-Maximum 

Allowable Emission Rates.” 

Approval. The 

SIP revision 

renumbered (G) to 

(F) 

(i) maintain a copy of the permit along 

with records containing the information 

and data sufficient to demonstrate 

compliance with the permit, including 

production records and operating hours; 

 

(ii) keep all required records in a file at 

the facility site. If, however, the facility 

site normally operates unattended, 

records must be maintained at an office 

within Texas having day-to-day 

operational control of the facility site; 

 
21

(iii) make the records available at the 

request of personnel from the 

commission or any local air pollution 

control agency having jurisdiction over 

the site. Upon request, the commission 

shall make any such records of 

compliance available to the public in a 

timely manner; 

 

(iv) comply with any additional 

recordkeeping requirements specified in 

special conditions attached to the permit; 

 

(v) retain information in the file for at 

least two years following the date that 

the information or data is obtained; and 

 

(vi) for persons certifying and registering 

a federally-enforceable emission 

limitation in accordance with §116.611 

of this title (relating to Registration To 

Use a Standard Permit), retain all records 

demonstrating compliance for at least 

five years. 

 

(G) Maximum allowable emission rates. 

The total emissions of air contaminants 

from any of the sources of emissions 

must not exceed the values stated on the 

table attached to the permit entitled 

“Emission Sources – Maximum 

Allowable Emission Rates.” 

(G) (H) Maintenance of emission control. 

The permitted facilities shall not be 

operated unless all air pollution emission 

capture and abatement equipment is 

maintained in good working order and 

operating properly during normal facility 

operations. The permit holder shall 

provide notification for emissions events 

and maintenance in accordance with 

§§101.201, 101.211, and 101.221 of this 

title (relating to Emissions Event 

Reporting and Recordkeeping 

Requirements; Scheduled Maintenance, 

Start-up, and Shutdown Reporting and 

Recordkeeping Requirements; and 

Operational Requirements). 

Approval. The 

SIP revision 

renumbered (H) to 

(G) 

(H) Maintenance of emission control. 

The permitted facilities shall not be 

operated unless all air pollution emission 

capture and abatement equipment is 

maintained in good working order and 

operating properly during normal facility 

operations. The permit holder shall 

provide notification for emissions events 

and maintenance in accordance with 

§§101.201, 101.211, and 101.221 of this 

title (relating to Emissions Event 

Reporting and Recordkeeping 

Requirements; Scheduled Maintenance, 

Start-up, and Shutdown Reporting and 

Recordkeeping Requirements; and 

Operational Requirements). 

(H) (I) Compliance with rules. Approval. The 

SIP revision 

renumbered (I) to 

(H) 
22

(i) Acceptance of a permit by an applicant 

constitutes an acknowledgment and 

agreement that the permit holder will 

comply with all rules, regulations, and 

orders of the commission issued in 

conformity with the TCAA and the 

conditions precedent to the granting of 

the permit. 

Approval.

(ii) If more than one state or federal rule 

or regulation or permit condition are 

applicable, the most stringent limit or 

condition shall govern and be the 

standard by which compliance shall be 

demonstrated. 

Approval.

(iii) Acceptance includes consent to the 

entrance of commission employees and 

agents into the permitted premises at 

reasonable times to investigate conditions 

relating to the emission or concentration 

of air contaminants, including compliance 

with the permit. 

Approval.

(I) Compliance with rules. 

(i) Acceptance of a permit by an 

applicant constitutes an acknowledgment 

and agreement that the permit holder will 

comply with all rules, regulations, and 

orders of the commission issued in 

conformity with the TCAA and the 

conditions precedent to the granting of 

the permit. 

 

(ii) If more than one state or federal rule 

or regulation or permit condition are 

applicable, the most stringent limit or 

condition shall govern and be the 

standard by which compliance shall be 

demonstrated. 

 

(iii) Acceptance includes consent to the 

entrance of commission employees and 

agents into the permitted premises at 

reasonable times to investigate 

conditions relating to the emission or 

concentration of air contaminants, 

including compliance with the permit. 

 

§116.120 Voiding of Permits 

The SIP revision included for review was submitted to EPA by TCEQ on September 25, 

2003 and was adopted by TCEQ on August 20, 2003. The proposed revision moves the 

SIP approved section 116.115(b)(2)(A) to a new section 116.120 located within Division 

1, Permit Application and adds provisions for construction extensions. 
23

§116.120. Voiding of Permits 

EPA approved §116.115(b)(2)(A) 

11/14/03 (68 FR 64543)

Pending SIP Revision Comments 

(A) Voiding of permit. A permit or 

permit amendment under this chapter is 

automatically void if the permit holder 

does one of the following: 

(a) (A) Voiding of permit. A permit or 

permit amendment under this chapter is 

automatically void if the permit holder 

does one of the following: 

Approval 

(i) fails to begin construction within 18 

months of date of issuance. The 

executive director may grant a one-time 

18-month extension to the date to begin 

construction; 

(1) (i) fails to begin construction within 

18 months of issuance, . The executive 

director may grant a one-time 18-

month extension to the date to begin 

construction; except as noted in 

subsection (b) of this section; 

Approval

(ii) discontinues construction for more 

than 18 consecutive months prior to 

completion; or 

(2) (ii) discontinues construction for 

more than 18 consecutive months prior 

to completion; or 

Approval 

(iii) fails to complete construction within 

a reasonable time. 

(3) (iii) fails to complete construction 

within a reasonable time. 

Approval 

(b) The executive director may grant 

extensions to begin construction. 

Permits issued to holders who have 

received extensions will be subject to 

revision based on best available control 

technology, lowest achievable emission 

rate, and netting or offsets as 

applicable. A first extension of 18 

months may be granted solely at the 

request of the permit holder. One 

additional extension of up to 18 months 

may be granted if the permit holder 

demonstrates that emissions from the 

facility will comply with all rules and 

regulations of the commission and the 

intent of the TCAA, including 

protection of the public’s health and 

physical property; and

Approval 

(1) the permit holder is a party to 

litigation not of the permit holder’s 

initiation regarding the issuance of the 

permit; or

Approval

(2) the permit holder has spent, or 

committed to spend, at least 10% of the 

estimated total cost of the project up to 

a maximum of $5 million.

Approval 

(c) A permit holder granted an 

extension under subsection (b)(1) of 

this section may receive one 

subsequent extension if the permit 

holder meets the conditions of 

subsection (b)(2) of this section.

Approval