# Technical Support Document

Texas Chapter 116 – Control of Air Pollu tion 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, Ai r 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 Implementa tion 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) relati ng to the voiding of pe rmits 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 st ate adopted revisions to the General and Special Conditions and Voiding of Permits provisions wi ll improve air quality, co mply 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 Ge neral and Special Conditions are found at 30 TAC Chapter 116, Subchapter B, Division 1, secti on 116.115. The currently approved SIP includes section 116.115 as adopted by TCEQ on N ovember 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 sect ion 116.115 on August 20, 2003 and submitted those revisions to EPA on September 25, 2003. The am endment of section 116.115(b)(2)(A) revises and recodifies the provisions relating to the vo iding of permits and extensions of time to begin
construction to a new section 116.120. The ne w section116.120 is located in 30 TAC Chapter 116, Subchapter B, Division 1, Pe rmit Application. This new s ection addresses the voiding of permits and allows additional time to begin cons truction of a project authorized with a new source review permit.

Prior to the September 2003 submittal, a sepa rate (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 Di vision 2, Compliance History.

In 2002, TCEQ repealed all sect ions under Division 2, Complianc e History (including section 116.120), and replaced them with provisions for Compliance Hist ory under 30 TAC Chapter 60. TCEQ has not submitted to EPA for consideratio n of approval the revisions to Chapter 60 nor the repeal of the sections under Division 2. Ther efore, EPA has not reviewed and acted on these changes. With this SIP revision, the Texas SIP will contain two secti ons referencing section

### 4 116.120; however, the sections woul d be located in separate di visions and the subject matter would be totally unrelated.

We have evaluated the revised rules for enforcea bility 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 ta ken on 116.115(b)(2)(C)(iii) and 116.115(c)(2)(B)(ii)(I). Following EPA’s approva l, a SIP revision was submitted to EPA by TCEQ on April 12, 2001 and was appr oved 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 wa s taken on 116.115(c)(2)(B)(ii)(I). This provision implements the requirements of sec tion 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 Septem ber 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 constructi on 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 exte nsion. This language was transferred to the new section 116.120 and relates to the grant of authority to the Ex ecutive 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, a nd netting determinations before the first extension will be granted. We are appr oving 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 li tigation, 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 comm itted 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 116.12 0(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 fo r this SIP package. The comment letter references a concern with section 116.120; how ever, the comments did not reference any issues with the proposed section 116.115 revi sion. In reference to section 116.120, EPA provided the following comments:

EPA Comment 1 : Paragraph (1) require s the reevaluation of BA CT as a condition for receiving an extension. Para graph (1) should further provi de 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 secti on 172(c)(5) and 173 of the Clean Air

Act.

EPA Comment 2 : The introductory language requi res reevaluation of BACT (or LAER), netting and offsets. However, it is unclear whether these r eevaluations apply to both extensions or only to the first extension. As written, these reev aluations appear to apply only to the first extensi on. The rule should clearly re quire 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 sour ce 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 ch anging the rules in the adopted rule to require both BACT and LAER reviews as an app licable condition for a second extension. By changing the adopted ru les 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 propos ed SIP revisions consists of four elements of review. The elements considered during th is review are containe d 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 Determin ation sets forth the minimum criteria for determining whether a submitted SIP is an offi cial 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 revision s. Finally, a word-byword comparison of the current SIP approved section and the proposed SIP revisions are
included in the section entitle d “Review of Proposed Revisions against the SIP Approved Regulations.” From this Technical Review, the ba sis 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 s ections has compared the applicable sections of the CAA and 40 CFR Part 51 to TCEQ’s Sept ember 25, 2003 proposed revisions to the SIP, enacted at 30 TAC Chapter 116, Subchapt er 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 Pe rmits, 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 recodifi cation 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 Septemb er 25, 2003 and January 24, 2008 SIP submittals with respect to Part 51, Appendi x V Completeness Determination

Appendix V of 40 CFR Part 51 outlines the mi nimum criteria for determining whether a State implementation plan is c onsidered 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 re view of plans. This feature is being deleted from the next revised CFR on completeness. Th erefore, it is not included in the checklist.

### 8 SIP Completeness Checklist

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

When preparing a SIP revision re quest, the SIP reviewer should go through this list to help identify that the package submitted to EPA is comp lete. 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 submitta l 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 adopt ed the revision in the State code or body of regulations, or that the State has issued th e permit, order, consen t agreement (hereafter document) in final form. This evidence would in clude the date of adoption or final issuance and the effective date of revision, if di fferent from adoption/issuance date.

The revisions were adopted by the Texas Commi ssion on Environmental Quality (formerly the
Texas Natural Resource Conservation Commissi on) 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 citati on of the appropriate State authority.

The authority for promulgating changes to the Te xas 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 includin g an indication of the changes made to the existing approved plan where applicable. The su bmittal shall be a copy of the official State regulation document signed, stamped, and dated by th e appropriate State offi cial indicating that it is fully enforceable by the State. The eff ective 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. Hust on, 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 comp leting the adoption/issuance of the plan.

### 9 The authority for promulgating changes to the Texa s 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 pub lication of such notice, (e.g., notarized or certified copies of any public notices published in ne wspapers). (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 indi cating that public hearing(s) was/were held in accordance with the information provided in the public notice(s) and the St ate's laws and constitution, if applicable.

The order adopting the new and am ended section to 30 TAC Chapter 116 provided evidence that the public hearing was conducted pursuant to Texas Health and Safet y Code section 382.017
and section 51.102.

8. A compilation of public comments a nd 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 followi ng technical information in its SIP revision request package.

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

This is not applicable to the SIP revision under review. This SIP revi sion addresses the General and Special Conditions and Voidin g of Permits under Chapter 116.

2. Identification of the locations of affected sources including the EPA attainment/nonattainment designatio n 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 allowa ble emissions from the affected sources is included. (Examples include estimates of change s 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 em issions from the affected sources is not applicable to this SIP revision.

4. Demonstration is included that the NAAQ S/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 th e 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 maintenan ce plan for the primary ambient air quality standards for at least 10 years as requ ired 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 nece ssary 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 cont rols, industrial/proce ss equipment designs, reformulated materials, etc.).

Evidence of emission limitations based on CEM technology is not applicable

.

8. Evidence is included indicating that a SIP re vision contains emission limitations, work practice standards, and recordk eeping/reporting requirements to en sure stated emission levels.

### 11 Enforceability is determined on a case-b y-case basis in ea ch 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 tec hnological jus tifications are included per applicable EPA policies or an e xplanation why such justificati ons are not necessary should be included. For example, requests for alternat ive RACT may require such justification.

These justifications are not n ecessary for this SIP revision

.

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

### 12 Appendix B. Evaluation of the Septemb er 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 Chapte rs 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 States man –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 perm it 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 determin ed 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 th at 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 subm itted 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 re asonable 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 atta inment 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 portio ns 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 tran sfers this language (w ith 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 reasona ble 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 se ction 116.120. The revisions approved with
this action will not interfere with the SIP-a pproved 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 Revisi ons 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 approve d 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 wa s 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 SIP 1 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, e ffective December 11, 2002. As approved by EPA November 14, 2003 (68 FR 64543 ) effective December 15, 2003 an d 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 progra m 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 prog ram 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 an y 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 lo cal 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 provis ions 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