TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

January 23, 2013 

Amendments to the Texas New Source Review (NSR) State Implementation Plan (SIP) 

submitted by the Texas Commission on Environmental Quality (TCEQ) on November 29, 

1994; March 13, 1996; July 22, 1998; October 25, 1999; September 11, 2000; April 12, 2001; 

July 31, 2002, September 4, 2002; October 4, 2002; September 25, 2003; July 2, 2010, 

October 5, 2010, and October 21, 2013. 

No material in this submittal package was designated as Confidential Business Information. 

FOR FURTHER INFORMATION CONTACT: 

Stephanie Kordzi United States Environmental Protection Agency Region 6, Air Permits 

Section (6PD-R), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, (214) 665-7520 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

2 

Table of Contents 

I. Introduction 

A. Overview 

B. What are we addressing in this action? 

C. What are we not addressing in this action? 

II. History of Texas Flexible Permit Program Submittals and EPA’s Actions 

A. EPA’s July 15, 2010, Disapproval of the Flexible Permit Program Rules 

B. US Court of Appeals for the Fifth Circuit Court’s August 13, 2012, Decision 

C. TCEQ’s October 21, 2013, Flexible Permit Program SIP Submittal 

III. Overview of the Texas Flexible Permit Program SIP Submittals 

A. Evaluation of the November 29, 1994 Submittal 

B. Evaluation of the March 13, 1996 Submittal 

C. Evaluation of the July 22, 1998 Submittal 

D. Evaluation of the October 25, 1999 Submittal 

E. Evaluation of the September 11, 2000 Submittal 

F. Evaluation of the April 12, 2001 Submittal 

G. Evaluation of the September 4, 2002 Submittal 

H. Evaluation of the October 4, 2002 Submittal 

I. Evaluation of the September 25, 2003 Submittal 

J. Evaluation of the July 2, 2010 Submittal 

K. Evaluation of October 5, 2010 Submittal 

L. Evaluation of October 21, 2013 Submittal 

IV. Technical Evaluation of the Texas Flexible Permit SIP Submittals. 

 A. Part 51, Appendix V Evaluation of the SIP Submittal 

 

V. Do the State’s Submittals Meet the Applicable Federal Requirements? 

 A. Public Participation Requirements for Minor NSR Programs 

VI. EPA’s Evaluation of the Flexible Permit Program 

APPENDIX List of companies provided by the TCEQ on December 18, 2013, that 

currently have or historically had coverage under a flexible permit issued 

prior to the rules becoming SIP approved. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

3 

I. Introduction 

A. Overview.

This Technical Support Document (TSD) is a technical evaluation of submitted 

amendments to the Texas State Implementation Plan (SIP) that relate to Flexible 

Permits. Specifically, this is an evaluation of SIP amendments to the following 

Chapters under Title 30 of the Texas Administrative Code (30 TAC) that relate to 

Flexible Permits: 

 Chapter 39 – Public Participation; and 

 Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification. 

Throughout this document, the following terms and abbreviations have the 

following meanings except where otherwise stated: 

• “EPA,” “we,” “us,” and “our” means the Environmental Protection 

Agency; 

• “Act” and “CAA” mean the Federal Clean Air Act; 

• “NSR” means New Source Review; 

• “PSD” means Prevention of Significant Review; 

• “NNSR” means Nonattainment Area New Source Review; 

• “TCEQ”, Texas Natural Resource Conservation Commission, “TNRCC”, and 

“Texas” means the Texas Commission on Environmental Quality; and 

• “NAAQS” means National Ambient Air Quality Standards. 

B. What are we addressing in this action? 

This TSD reviews portions of twelve proposed amendments to the Texas SIP 

pertaining to the Flexible Permit Program. This review will determine if the 

amendments are consistent with the requirements of the CAA and EPA’s policy and 

guidance. The following twelve SIP amendments are the subject of this TSD. Table 1 

summarizes the provisions that Texas submitted. Table 1 identifies each individual SIP 

submittal that is affected by this action. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

4 

Table 1 - Summary of Each Flexible Permit SIP Submittal That is Only Affected by This 

Action

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations affected 

Flexible Permits 11/29/1994 11/16/1994 Amendment to 30 TAC § 

116.110 

Adoption of New 30 TAC § 

116.13 and New Subchapter G, 

30 TAC §§ 116.710, 116.711, 

116.714, 116.715, 116.716, 

116.717, 116.718, 116.720, 

116.721, 116.722, 116.740, 

116.750, and 116.760. 

Qualified Facilities and 

Modifications to Existing 

Facilities 

3/13/1996 2/14/1996 Amendment of 30 TAC § 116.10 

to add new definition of 

“modification of existing facility” 

at (F). 

NSR Rule Amendments; 

section 112(g) Rule 

Review for Chapter 116 

7/22/1998 6/17/1998 Repeal and new 30 TAC § 

116.10(9)(F), 116.13 and 

116.110(a)(3) adopted. 

Amendments to Subchapter G, 30 

TAC §§ 116.710, 116.711, 

116.714, 116.715, 116.721, 

116.730, and 116.750. 

Public Participation (HB 

801) 

10/25/1999 9/2/1999 Amendment to Subchapter G, 30 

TAC § 116.740. 

Air Permits (SB-766)-

Phase II 

9/11/2000 8/9/2000 Amendments to Subchapter G, 30 

TAC §§ 116.710, 116.715, 

116.721, 116.722, and 116.750. 

Emissions Banking and 

Trading 

4/12/2001 3/7/2001 Amendments to Subchapter G, 30 

TAC §§ 116.711 and 116.715. 

House Bill 3040: 

Shipyard Facilities and 

NSR Maintenance 

Emissions 

9/4/2002 8/21/2002 Amendment to 30 TAC § 116.10, 

re-designating 30 TAC §§ 

116.10(9)(F) to 116.10(11)(F). 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

5 

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations affected 

Amendments to Subchapter G, 30 

TAC §§ 116.711 and 116.715. 

Air Fees 10/4/2002 9/25/2002 Amendments to Subchapter G, 30 

TAC § 116.750. 

Offset Certification, New 

Source Review Permitting 

Processes and Extensions 

for Construction 

9/25/2003 8/20/2003 Amendment to Subchapter G, 30 

TAC § 116.715 

Public Notice 

Applicability to Air 

Quality Permits and 

Permit Amendments 

7/2/2010 6/2/2010 New Chapter 39.402(a)(4) and 

(a)(5) establishing applicability 

of the Chapter 39 public notice 

provisions to applications for new 

and amended Flexible Permits. 

BACT and Qualified 

Facility Air Permit 

Program 

10/5/2010 9/15/2010 Amendments to 30 TAC § 

116.10(9)(E) only in this action. 

Flexible Permit Program 10/21/2013 12/14/2010 Amendments to 30 TAC §§ 

116.13(3) and (5); 

116.711(2)(M)(iv) & (vii); 

116.715(c)(5)(A) & (B), 

116.715(c)(6)(A), (c)(6)A)(i) and 

(ii), 116.715(d), except specific 

text; 116.715(f), excluding 

715(f)(2)(A), 116.716(a), 

116.716(c), (c)(1)(A) and (B), 

116.716(c)(2), 116.716(c)(3), 

116.716(c)(4), and 

116.716(d)[new] and (e) and the 

repeal of 116.716(d). 

Grandfathered Facilities 5/22/2002 Withdrawal 30 TAC §§ 116.793 

– 116.802 and 116.804-116.807, 

adopted May 22, 2002, except 

Section 116.794(11), 116.795(f) 

and 116.799(a), which were 

returned to the Commission by 

letter from EPA dated June 29, 

2011; and Section 116.803, 

adopted August 21, 2002. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

6 

C. What are we not addressing in this action? 

The following Table 2 identifies each individual rule provision contained in each SIP 

submittal that is not affected by this action. 

Table 2: Identification of SIP Submittal Provisions That Are Not Part of This Proposal 

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations Not Affected by This 

Proposal 

Flexible Permits 11/29/1994 11/16/1994 30 TAC §§ 116.716(a) and (d); 

116.730. 

30 TAC § 116.730 was 

withdrawn from our consideration 

as a SIP revision on October 21, 

2013. 

Qualified Facilities and 

Modifications to Existing 

Facilities 

3/13/1996 2/14/1996 Amendments to 30 TAC §§ 

116.10, 116.116, 116.112 and 

116.117 were resubmitted on 

March 25, 2011 and will be 

addressed in a separate 

rulemaking. 30 TAC § 116.118 

was disapproved on April 14, 

2010. See 75 FR 19468. 

NSR Rule Amendments; 

section 112(g) Rule 

Review for Chapter 116 

7/22/1998 6/17/1998  Amendments to 30 TAC §§ 

116.11, 116.110, 116.111, 

116.112, 116.114, 116.115, 

116.116, 116.120, 116.121, 

116.122, 116.124, 116.125, 

116.126, 116.130 – 116.134, 

116.137, 116.140, 116.141, 

116.143, 116.160, 116.161, 

116.170, were SIP-approved on 

September 18, 2002. See 67 FR 

58697. 

 Amendments to 30 TAC §§ 

116.14, 116.610, 116.611, 

116.614, 116.615 were SIPapproved November 14, 2003. 

See 68 FR 64543. 

 Amendments to 30 TAC § 

116.313 were SIP-approved 

March 20, 2009. See 74 FR 

11851. 

 Amendments to 30 TAC §§ 

116.10(1), 116.10(2), 

116.10(11)(E), 116.10(16), 

116.116(e), 116.117, 116.118 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

7 

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations Not Affected by This 

Proposal 

were disapproved on April 14, 

2010. See 75 FR 19468. 

 Amendments to 30 TAC § 

116.174 were SIP-approved on 

November 2, 2011. See 76 FR 

67600. 

 Amendments to 30 TAC § 

116.314 were SIP-approved on 

November 14, 2011. See 76 FR 

70354. 

 30 TAC § 116.124 was repealed 

by the TCEQ. EPA repealed 

from the Texas SIP on January 

6, 2014. See 79 FR 551. 

 30 TAC § 116.312 was SIPapproved January 6, 2014. See 

79 FR 551. 

 TCEQ repealed and withdrew 

the amendments to 116.621 on 

March 9, 2006. 

 TCEQ repealed and withdrew 

the amendments to 116.180 – 

116.183 on January 11, 2006. 

 TCEQ withdrew 116.730 from 

our consideration on October 

21, 2013. 

 30 TAC §§ 116.15, 116.110(c), 

116.111(2)(K), 

116.115(c)(2)(B)(ii)(1), 

116.116(b)(3), 116.130(c), 

116.311(a)(5), 116.610(d) and 

116.620(a)(13) were returned to 

the state by letter June 29, 2011 

as outside the scope of the SIP. 

Public Participation (HB 

801) 

10/25/1999 9/2/1999  On July 2, 2010, TCEQ 

withdrew from SIP 

consideration the entirety of the 

October 25, 1999, SIP 

submittal, with the exception of 

30 TAC §§ 39.411(a), 

39.418(b)(4), and 55.152(b). 

EPA separately approved those 

provisions on November 25, 

2013. See EPA-R06-OAR2010-0612. 

 30 TAC 116.111(a)(2)(K) 

returned to state. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

8 

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations Not Affected by This 

Proposal 

Air Permits (SB-766)-

Phase II 

9/11/2000 8/9/2000  Amendments to 30 TAC § 

101.333 were SIP-approved on 

January 3, 2011. See 76 FR 16. 

 Amendments to 30 TAC §§ 

116.110, 116.116, and 116.603 

were SIP-approved on 

November 14, 2003. See 68 FR 

64543. 

 30 TAC § 116.620 is being 

addressed in a separate 

rulemaking. 

 30 TAC § 116.621 was repealed 

and withdrawn on March 9, 

2006. 

 Amendments to 30 TAC § 

116.10 will be addressed in a 

separate rulemaking. 

 30 TAC § 116.10(5)(F) was 

returned to TCEQ on June 29, 

2011, as outside the scope of 

the Texas SIP. 

Emissions Banking and 

Trading 

4/12/2001 3/7/2001  Amendments to 30 TAC §§ 

116.111, 116.115, 116.610 and 

116.615 were SIP-approved on 

September 6, 2006. See 71 FR 

52664. 

House Bill 3040: 

Shipyard Facilities and 

NSR Maintenance 

Emissions 

9/4/2002 8/21/2002  Amendments to 30 TAC § 

116.111 were SIP-approved on 

August 27, 2007. See 72 FR 

49198. 

 Amendments to 30 TAC § 

116.311 were SIP-approved on 

November 14, 2011. See 76 FR 

70354. 

 New 30 TAC § 116.315 was 

SIP-approved on March 11, 

2010. See 75 FR 11464. 

 Amendments to 30 TAC § 

116.615 were SIP-approved on 

August 27, 2007. See 72 FR 

49198. 

 New 30 TAC § 116.778 was 

proposed for SIP approval on 

October 25, 2013. See 78 FR 

63929. 

 New 30 TAC § 116.919 was 

proposed for SIP approval on 

October 25, 2013. See 78 FR 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

9 

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations Not Affected by This 

Proposal 

63929. 

 New 30 TAC § 116.803 was 

withdrawn on October 21, 2013. 

 On October 21, 2013, TCEQ 

withdrew 30 TAC § 116.711(3) 

(last sentence only) and (11), as 

amended August 21, 2002, and 

all earlier versions. Withdrew 

30 TAC § 116.715(a), only with 

regard to the text “Subchapter C 

of this chapter (relating to 

Hazardous Air Pollutants: 

Regulations Governing 

Constructed or Reconstructed 

Major Sources (FCAA Section 

112(g), 40 CFR Part 63)”; 30 

TAC § 116.311(a)(6). 

Air Fees 10/4/2002 9/25/2002  EPA 

returned 30 TAC §§ 101.24 and 

101.27 on December 28, 2009 

as outside the scope of the 

Texas SIP. 

 Amendme

nts to 30 TAC §§ 116.141, 

116.143, 116.163, 116.313, and 

116.614 were SIP-approved on 

March 20, 2009. See 74 FR 

11851. 

 New 30 

TAC § 106.50 was SIPapproved on March 20, 2009. 

See 74 FR 11851. 

Offset Certification, New 

Source Review Permitting 

Processes and Extensions 

for Construction 

9/25/2003 8/20/2003  On March 20, 2009, EPA SIPapproved the repeal of 30 TAC 

§§ 116.170 and new 116.170, 

new 116.172, amendments to 

116.12, amendments to 

116.143, amendments to 

116.150, and amendments to 

116.313. See 74 FR 11851. 

 New 30 TAC § 116.120 was 

SIP-approved on April 2, 2010. 

See 75 FR 16671. 

 Amendments to 30 TAC § 

116.114 were SIP-approved on 

March 8, 2010. See 75 FR 

10416. 

 Amendments to 30 TAC § 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

10 

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations Not Affected by This 

Proposal 

116.115 were SIP-approved on 

April 2, 2010. See 75 FR 

16671. 

 Amendments to 30 TAC § 

116.315were SIP-approved on 

March 11, 2010. See 75 FR 

11464. 

 TCEQ withdrew 30 TAC § 

116.715(c)(6) on October 21, 

2013. 

Public Notice 

Applicability to Air 

Quality Permits and 

Permit Amendments 

7/2/2010 6/2/2010 On November 19, 2013, EPA 

SIP-approved the following 

provisions: 

 30 TAC §§ 39.402(a)(1) – (3) 

and (a)(6); 

 30 TAC §§ 39.405(f)(3) and 

(g), (h)(1)(A), (h)(2) – (h)(4), 

(h)(6), (h)(8) – (h)(11), (i) and 

(j); 

 30 TAC § 39.407; 

 30 TAC § 39.409; 

 30 TAC §§ 39.411(a), (e)(1) – 

(4)(A)(i) and (iii), (4)(B), 

(e)(5)(A), (e)(5)(B), (e)(6)(10), 

(e)(11)(A)(i), (e)(11)(A)(iii), 

(e)(11)(A)(iv), (e)(11)(B)-(F), 

(e)(13), (e)(15), (f)(1)-(8), (g) 

and (h); 

 30 TAC § 39.418(a), (b)(2)(A), 

(b)(3) and (c); 

 30 TAC § 39.419(e), (e)(1) and 

(e)(2); 

 30 TAC § 39.420(c)(1)(A)-

(D)(i)(I) and (D)(i)(II), (D)(ii), 

(c)(2), and (d)-(e); 

 39.601 – 39.605; 

 55.152; 55.154; 55.156; 

 116.114; and 116.194. See 

EPA-R06-OAR-2010-0612. 

BACT and Qualified 

Facility Air Permit 

Program 

10/5/2010 9/15/2010 EPA will address the amendments 

to 30 TAC §§ 116.10, 116.111, 

116.116, (except as noted above 

in Table 1), 116.117 and new 

116.17 in a separate rulemaking. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

11 

Title of SIP submittal Date submitted to EPA Date of State 

adoption 

Regulations Not Affected by This 

Proposal 

Flexible Permit Program 10/21/2013 9/24/2013 TCEQ withdrew 30 TAC § 

116.711(3) (last sentence only) 

and (11), as amended 8/21/2002, 

and all earlier versions; 30 TAC § 

116.715(a), only with regard to 

the text “or Subchapter C of this 

chapter (relating to Hazardous Air 

Pollutants: Regulations 

Governing Constructed or 

Reconstructed Major Sources 

(FCAA 112(g), 40 CFR Part 63)), 

as amended 8/21/2002, and all 

earlier versions; 30 TAC § 

116.715(c)(6), as amended 

8/20//2003, and all earlier 

versions; 30 TAC § 116.716(a) 

and (d), as adopted 11/16/1994; 

30 TAC § 116.730, adopted 

11/16/1994, and repealed and 

readopted 6/17/1998; 30 TAC § 

116.740(b), adopted 6/17/1998 

and amended 9/2/1999; 30 TAC 

§§ 116.793-116.802 and 116.804-

116.807, adopted 5/22/2002, 

except 116.794(11), 116.795(f), 

and 116.799(a), which were 

returned to the Commission by 

letter from EPA dated 6/20/2011; 

and 30 TAC § 116.803, adopted 

8/21/2002. 

II. History of Texas Flexible Permit Program Submittals and EPA’s Actions 

A. EPA’s July 15, 2010, Disapproval of the Flexible Permit Program Rules 

 

 The EPA took final action to disapprove Flexible Permit amendments to the 

SIP on July 15, 2010, based on two main issues as outlined below. It did not meet the 

Minor NSR SIP requirements and it did not meet the NSR SIP requirements for a 

substitute Major NSR SIP amendment. 

 First, the program did not meet the following identified Minor NSR SIP 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

12 

requirements, based on 1) not having an express regulatory prohibition limiting its use 

to Minor NSR and no regulatory provision clearly prohibiting the use of this submitted 

program from circumventing the major NSR SIP requirements; 2) not having an 

enforceable NSR Permitting program because it lacks requirements for enforcement 

and assurance of compliance with no specific upfront methodologies in the Program to 

be able to determine compliance; 3) lacking specialized monitoring, recordkeeping, 

and reporting (MRR) requirements. Further it lacks the replicable procedures that are 

necessary to ensure that a) adequate monitoring is required that would accurately 

determine emissions under the flexible permit cap; b) the Program is based upon 

sound science and meets generally acceptable scientific procedures for data quality 

and manipulation; and c) the information generated by such system meets minimum 

legal requirements for admissibility in a judicial proceeding to enforce the Flexible 

Permit; 4) lacking replicable, specific implementation procedures for establishing an 

emission cap; 5) Failing to ensure that terms of Major NSR SIP permits are retained. 

Major stationary sources and major modifications could use the submitted Program to 

fundamentally change the way they comply with specific terms and conditions 

established in their Major NSR SIP permits; 6) Failing to meet statutory and 

regulatory requirements for a minor NSR SIP revision that is not consistent with EPA 

policy and guidance on Minor NSR SIP revisions; and 7) the too broad director 

discretion provision regarding whether or not to include MRR conditions in a Flexible 

Permit, and the lack of enforceability to determine that the requested revision to add 

the new permit option will not interfere with any applicable requirement concerning 

attainment and reasonable further progress (RFP), or any other requirement of the Act. 

 Second, the program did not meet seven NSR SIP requirements for a substitute 

Major NSR SIP amendment based on 1) not clearly limiting to Minor NSR thereby 

potentially exempting new major stationary source construction and modifications to 

occur without a Major NSR permit; 2) not prohibiting the use of this Program from 

circumventing the Major SNR SIP requirements; 3) not demonstrating the program 

was at least as stringent as the EPA Major NSR SIP program; 4) not requiring Major 

NSR applicability determinations based on actual emissions and on emissions 

increases and decreases (netting) that occur within a major stationary source; 5) failing 

to meet requirements for a NSR SIP amendment and is not consistent with EPA policy 

and guidance on Major NSR SIP amendments; 6) failing to include objective 

replicable methodology for calculating the emissions cap; and 7) providing for director 

discretion that is too broad regarding whether or not to include MRR. 

B. US Court of Appeals for the Fifth Circuit Court’s August 13, 2012, Decision 

 The US Court of Appeals for the Fifth Circuit Court granted the petition for 

review, vacated the EPA’s Approval of Texas’s Flexible Permit SIP plan, and 

remanded the Approval decision back to the EPA on August 13, 2012. The petition 

was granted based on 1) EPA not making findings demonstrating the Flexible Permit 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

13 

Program “would interfere with any applicable requirement concerning attainment of 

NAAQS or any other applicable requirement; 2) EPA’s rejection of the Texas program 

because it did not contain a prohibition regarding its use when Major NSR rules apply 

because the CAA does not require standards be drafted in negative terms; 3) EPA’s 

inability to explain why TCEQ’s use of Director Discretion does not meet CAA 

requirements ; 4) EPA’s insistence on a particular control measure is inconsistent with 

the principles of cooperative federalism that are an essential part of the CAA; and 5) 

EPA’s objection to emission cap use not being founded in the CAA or its 

implementing regulations. EPA provided no insight into how the emission caps 

interfere with NAAQS. 

C. TCEQ’s October 21, 2013, Flexible Permit Program SIP Submittal 

 On September 24, 2013, the Commissioners of the TCEQ considered the 

Submittal, Resubmittal, and Withdrawal of Sections to the SIP regarding the Flexible 

Permit Program. See Item 37 on the Agenda link: 

http://www.tceq.texas.gov/assets/public/comm_exec/agendas/comm/current/2013/130

924.pdf. The package was approved to be submitted to the EPA on October 21, 2013. 

III. Overview of the Texas Flexible Permit Program SIP Submittals 

 The SIP amendments that relate to Flexible Permits are evaluated to determine 

whether they comply with the applicable requirements of CAA §110 and with 40 CFR part 

51 – Requirements for Preparation, Adoption, and Submittal of Implementation Plans. In the 

Appendix, we include annotations of the regulations submitted for review and a line-by-line 

evaluation of each provision of the regulations relating to Flexible Permits. 

A. November 29, 1994 Submittal 

 On October 19, 1994, the TNRCC, predecessor to the TCEQ, adopted 

amendments to the Texas SIP to establish and implement the Flexible Permit Program 

in Texas. The TCEQ adopted the initial rules for Flexible Permits at the new 30 TAC 

Chapter 116, Subchapter G - Flexible Permits; adding new Flexible Permit Definitions 

at 30 TAC Chapter 116, Subchapter A, Section 116.13 – Flexible Permit Definitions; 

and revising the Permit Application provisions at 30 TAC Chapter 116, Subchapter B, 

Section 116.110(a) to authorize the use of a Flexible Permit for construction of any 

new minor facility and minor modification of any existing facility. Note that some 

portions of the November 29, 1994 submittal were later repealed and replaced in the 

July 22, 1998 submittal. 

B. March 13, 1996 Submittal 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

14 

 On February 14, 1996, the TNRCC adopted amendments to the Texas SIP to 

modify air permit application procedures and evaluation criteria to provide more 

operational flexibility to facilities. This submittal specifically included amendments to 

the definition of “modification of existing facility” in the General Definitions for Air 

Permitting at 30 TAC § 116.10(F) to address modifications under Flexible Permits. 

This submittal of 30 TAC § 116.10(F) for “modification of existing facility” was later 

repealed and replaced in the July 22, 1998 SIP submittal and is therefore not before 

EPA for review. 

C. July 22, 1998 Submittal 

 On June 17, 1998, the TNRCC adopted severable amendments that included 

the repeal and replacement of portions of the November 29, 1994 submittal and the 

entirety of the March 13, 1996. Specific to Flexible Permits, the July 22, 1998 

submittal included a new definition of ``modification of existing facility,'' at 30 TAC § 

116.10(9)(F); repeal of and new Flexible Permit Definitions at 30 TAC §§ 116.13 and 

§ 116.110; and amendments to the 30 TAC §§ 116.710, 116.711, 116.714, 116.715, 

116.721, 116.730, 116.740, and 116.750. The definitions in 30 TAC § 116.13 were 

non-substantive. An operations certification requirement for flexible permits was 

removed from 116.110. The amendments to the remaining sections added or clarified 

language regarding BACT, compliance with FCAA Section 112(g), or were nonsubstantive changes. 

D. October 25, 1999 Submittal 

 On September 2, 1999, the TNRCC adopted amendments to the Texas SIP to 

implement Texas House Bill 801 to establish new procedures for public participation 

in environmental permitting. The TNRCC submitted these amendments as 

amendments to the Texas SIP in a letter dated October 25, 1999. The October 25, 

1999, submittal included amendments to the Flexible Permits public participation 

provisions at 30 TAC § 116.740. 

E. September 11, 2000 Submittal 

 On August 9, 2000, the TNRCC adopted amendments to 30 TAC Chapters 

101, 106, and 116 to implement the remaining requirements of Senate Bill 766 from 

the 76th Legislature. This included amendments to Chapter 116, Subchapter G, 30 

TAC §§ 116.710, 116.715, 116.721, 116.722, and 116.750. The amendments to 30 

TAC Chapters 101 and 116 implement the remaining requirements of Senate Bill 766 

from the 76th Legislature. The amendments triple emission fees for grandfathered 

facilities with emissions in excess of 4,000 tons per year after September 1, 2001, 

update public participation requirements for the issuance of standard permits, and 

make nonsubstantive changes to other related provisions. 
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F. April 12, 2001 Submittal 

 On March 7, 2001, the TNRCC adopted amendments to Subchapter G, 30 

TAC §§ 116.711 and 116.715. The amendments supplement the cap and trade 

program for the Houston/Galveston (HGA) ozone nonattainment area by clarifying 

that any source of emissions of nitrogen oxides (NOx) in the HGA area that uses 

certain permits, including flexible permits must obtain allowances for those emissions 

if the facility, or group of facilities, has a collective design capacity to emit ten tons or 

more of NOx per year and is subject to an emission standard in 30 TAC Section 

Chapter 117 and by allowing the use of NOx allowances to meet the correlating 

portion of emissions offset requirements. 

G. September 4, 2002 Submittal 

 On August 21, 2002, the TNRCC adopted amendments redesignating the 

definition of “modification of existing facility” from 30 TAC Section 116.10(9)(F) to 

30 TAC Section § 116.10(11)(F). The amendments also clarified permit renewal 

application content requirements and implemented new compliance history evaluation 

requirements for permit renewals. 

H. October 4, 2002 Submittal 

 On September 25, 2002, the TCEQ adopted amendments to various fee rules in 

Chapters 101, 106, and 116 including 116.750, Flexible Permit Fee, and corresponding 

amendments to the SIP. The increases were established to provide sufficient funding 

to meet the current appropriation levels for air program activities and to meet 

operational funding requirements for the Title V programs of the commission.

I. September 25, 2003 Submittal 

 On August 20, 2003, the TCEQ adopted amendments to Subchapter G, 30 

TAC § 116.715. The Amendment requires emission reductions to be certified as 

emission reduction credits under 30 TAC Chapter 101, Subchapter H, except future 

internal offsets which will continue to be certified under Chapter 116. 

J. July 2, 2010 Submittal 

 On June 2, 2010, the TCEQ adopted amendments to the Texas rules 

concerning Public Notice at 30 TAC Chapter 39; Requests for Reconsideration and 

Contested Case Hearings; Public Notice at 30 TAC Chapter 55; and Control of Air 

Pollution by Permits for New Construction or Modification at 30 TAC Chapter 116. 

The TCEQ submitted these amendments as revisions to the Texas SIP in a letter dated 
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July 2, 2010. The July 2, 2010, submittal included 30 TAC Sections 39.402(a)(4) and 

(a)(5) establishing applicability of public notice provisions for new Flexible Permits 

and amendments to Flexible Permits under 30 TAC Chapter 116. 

 In January 6, 2014, final approval of the July 2, 2010 Public Participation SIP 

Amendment, EPA severed the Flexible Permit public participation provisions at 30 

TAC §§ 39.402(a)(4) and (a)(5). We also indicated it was our intent to address the 

amendments to Chapter 39 for Flexible Permits at the time we proposed action on the 

Flexible Permit program. EPA now finds it appropriate to address the July 2, 2010 

submittal of 30 TAC §§ 39.402(a)(4) and (a)(5) because we are addressing the entirety 

of the Flexible Permit program and the amendments of the associated Flexible Permits 

public participation provisions at 30 TAC Section 116.740.

K. October 5, 2010 Submittal 

 On September 15, 2010 the TCEQ adopted amendments to 30 TAC § 

116.10(9)(E) to change a portion of the definition for “modification of existing 

facility”. Only this specific regulatory definition is being acted on in this action 

because directly affects the flexible permit rule. The entire submittal package 

consisted of new and amended sections prepared in response to EPA’s disapproval of 

the TCEQ rules that implemented the state’s qualified facilities program. 

L. October 21, 2013 Submittal 

 On September 24, 2013, the TCEQ considered the resubmittal and withdrawal 

of previously submitted rules implementing the Commission’s Flexible Permit 

Program at 30 TAC § 116, Subchapter G. Specifically, the Commission took the 

following action with regard to the following sections in 30 TAC, Chapter 116.: 

1. Resubmittal for EPA consideration of: 

 § 116.13; 

 § 116.110(a)(3), adopted June 17, 1998; and 

 §§ 116.710-116.760, adopted or amended by the Commission on 

November 16, 1994; June 17, 1998; September 2, 1999; August 9, 

2000; March 7, 2001; August 21, 2002; September 25, 2002; and 

August 20, 2003, except as modified by the list of sections listed below 

to be either withdrawn, or as amended by the Commission on 

December 14, 2010. 

2. Withdrawal from EPA consideration of sections adopted by the Commission 

between 1994 and 2003 to the SIP: 
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 § 116.711(3) (last sentence only) and (11), as amended August 21, 

2002, and all earlier versions; 

 § 116.715(a), only with regard to the text “or Subchapter C of this 

chapter (relating to Hazardous Air Pollutants: Regulations Governing 

Constructed or Reconstructed Major Sources (FCAA 112(g), 40 CFR 

Part 63))”, as amended August 21, 2002, and all earlier versions; 

 § 116.715(c)(6) as amended August 20, 2003, and all earlier versions; 

 § 116.730, adopted November 16, 1994, and repealed and readopted 

June 17, 1998; 

 § 116.740(b), adopted June 17, 1998, and amended September 2, 1999; 

 §§ 116.792-116.802 and 116.804-116.807, adopted May 22, 2002, 

except 116.794(11), 116.795(f), and 116.799(a), which were returned to 

the Commission by letter from EPA dated June 29, 2011; and 

 § 116.803, adopted August 21, 2002. 

3. Adoption and submittal as a revision to the SIP 116.765(b) and (c), and the 

submittal of the following sections adopted by the Commission on December 

14, 2010, as revisions to the SIP: 

 § 116.13(3) and (5); 

 § 116.711(2)(M) [introductory text], and paragraphs (iv) and (vii); 

 § 116.715(c)(5)(A) and (B); 

 § 116.715(d), [introductory text] except the text “The permit shall 

specify which of the monitoring options under paragraph (2)(A)-(E) of 

this subsection shall be used to determine compliance for facilities 

subject to monitoring under this subsection”; 

 § 116.715(d)(1); 

 § 116.715(f); 

 § 116.716(a), (c), (d) and (e); and 

 The repeal of § 116.716(d). 

 

M. Summary of Pending SIP Submittals Addressed in this Action 

Table 3 below contains a summary of each regulation discussed above that is affected. 

Table 3 - Summary of Each Regulation That is Affected by This Action 

Section Title Date Submitted to 

EPA as SIP 

Amendment 

Date Adopted by 

State 

Comments 

Chapter 39: Public Notice 

Section 39.402 Applicability to Air 

Quality Permits and 

Permit Amendments 

July 2, 2010 June 2, 2010 30 TAC § 

39.402(a)(4) and 

39.402(a)(5) specific 
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Section Title Date Submitted to 

EPA as SIP 

Amendment 

Date Adopted by 

State 

Comments 

to flexible permits 

only 

Chapter 116: Control of Air Pollution by Permits for New Construction or Modification 

Subchapter A: Definitions 

Section 116.10 General Definitions 03/13/1996 2/14/1996 Definition of 

“modification of 

existing facility” at 

30 TAC § 116.10(F) 

07/22/1998 6/17/1998 Definition of 

“modification of 

existing facility” at 

30 TAC § 

116.10(9)(F) 

9/4/2002 8/21/2002 Redesignation of the 

Definition of 

“modification of 

existing facility” 

from 30 TAC § 

116.10(9)(F) to 

116.10(11)(F) 

10/5/2010 9/15/2010 Renumbered 

definition (9)(E) for 

“modification of 

existing facility”. 

Section 116.13 Flexible Permit 

Definitions 

11/29/1994 11/16/1994 Initial adoption. 

7/22/1998 6/17/1998 Resubmitted 116.13 

definitions for (1) 

emission capemission limit, (2) 

expected maximum 

capacity, and (3) 

individual emission 

limitation. 

10/21/2013 12/14/2010  Revised definition 

of “emission cap” 

at 30 TAC § 

116.13(1). 

 Revised definition 

of “individual 

emission 

limitation” at 30 

TAC § 116.13(3) 

and (5). Deleted 

reference to 

“insignificant 

factor” formally 

found in 30 TAC 

§ 116.13. 
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Section Title Date Submitted to 

EPA as SIP 

Amendment 

Date Adopted by 

State 

Comments 

Subchapter B: New Source Review Permits 

Division 1: Permit Application 

Section 116.110 Applicability 11/29/1994 11/16/1994 30 TAC § 

116.110(a) specific 

to flexible permits 

only 

7/22/1998 6/17/1998 Revised 30 TAC § 

116.110(a)(3) 

applicability criteria. 

Subchapter G: Flexible Permits 

Section 116.710 Applicability 11/29/1994 11/16/1994 Initial adoption. 

7/22/1998 6/17/1998 Revised 30 TAC § 

116.710 subsections 

(a), (b), (c), and (d) - 

Applicability 

criteria. 

9/11/2000 8/9/2000 Resubmittal 30 TAC 

§ 116.710. 

Section 116.711 Flexible Permit 

Application 

11/29/1994 11/16/1994 Initial adoption. 

7/22/1998 6/17/1998 Revised 30 TAC §§ 

116.711 ((1) – (13) - 

Flexible permit 

application 

requirements. 

4/12/2001 3/7/2001 Resubmittal 30 TAC 

§ 116.711. 

9/4/2002 8/21/2002 Revised 30 TAC §§ 

116.711 (8), (9), 

(10), and (11). 

10/21/2013 12/14/2010 Revised 30 TAC § 

116.711(2)(M) 

[introductory text], 

and paragraphs (iv) 

and (vii). It was 

submitted in the 

package as 30 TAC 

§ 116.711(13)(D) 

which requires 

permit applicants to 

provide a description 

of EPNs included in 

emission cap and 30 

TAC § 

116.711(13)(E)(vii) 

which ensures PSD 

terms and conditions 

are retained in the 
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Section Title Date Submitted to 

EPA as SIP 

Amendment 

Date Adopted by 

State 

Comments 

flexible permit. 

Section 116.714 Application Review 

Schedule 

11/29/1994 11/16/1994 Initial adoption. 

7/22/1998 6/17/1998 Revised 30 TAC § 

116.714. 

Section 116.715 General and Special 

Conditions 

11/29/1994 11/16/1994 Initial adoption. 

7/22/1998 6/17/1998 Revised 30 TAC § 

116.715 subsections 

(a) and (c) (1) – (10) 

- General conditions 

applying to all 

flexible permit 

holders. 

9/11/2000 8/9/2000 Revised 30 TAC § 

116.715 subsections 

(a) – (d). 

4/12/2001 3/7/2001 Revised 30 TAC §§ 

116.715 (a) and 

(c)(3)(A), (c)(3)(B), 

and (c)(3)C). 

9/4/2002 8/21/2002 Revised 30 TAC § 

116.715 subsections 

(c)(1) and (c)(4). 

9/25/2003 8/20/2003 Revised 30 TAC § 

116.715 subsection 

(c)(3)(C)(9). 

10/21/2013 12/14/2010  Revised 30 TAC 

§§ 116.715 

((c)(5)(A) & (B) – 

monitoring 

requirements must 

be specified in 

permits for 

compliance with 

emission caps. 

 Revised 30 TAC § 

116.715(c)(6)(A)(i

) & (ii) – 

recordkeeping for 

demonstrating 

emission cap and 

individual 

emission 

limitation 

calculations. 

 Revised 30 TAC § 

116.715(d)(1) – 

monitoring must 
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Section Title Date Submitted to 

EPA as SIP 

Amendment 

Date Adopted by 

State 

Comments 

demonstrate 

compliance based 

on sound science. 

Section 116.716 Emission Caps and 

Individual Emission 

Limitations 

11/29/1994 11/16/1994 Initial adoption. 

10/21/2013 12/14/2010 Revised 30 TAC §§ 

116.716 (a) 

116.716(c), 

116.716(d), and 

116.716(e) on 

establishing an 

emission cap and 

individual emission 

limits. 

Section 116.717 Implementation 

Schedule for 

Additional Controls 

11/29/1994 11/16/1994 Initial adoption. 

Section 116.718 Significant 

Emission Increase 

11/29/1994 11/16/1994 Initial adoption. 

Section 116.720 Limitation on 

Physical and 

Operational 

Changes 

11/29/1994 11/16/1994 Initial adoption. 

Section 116.721 Amendments and 

Alterations 

11/29/1994 10/19/1994 Initial adoption. 

7/22/1998 6/17/1998 Revised 30 TAC §§ 

116.721 (a), (b)(2), 

(d)(1), and (d)(2) - 

Amendments and 

alterations for 

flexible permits. 

9/11/2000 8/9/2000 Resubmittal 30 TAC 

§ 116.721. 

Section 116.722 Distance 

Limitations 

11/29/1994 10/19/1994 Initial adoption. 

9/11/2000 8/9/2000 Revised reference 

citation in Section. 

Section 116.730 Compliance History 11/29/1994 10/19/1994 Initial adoption

10/21/2013 12/14/2010 30 TAC Section 

116.730 withdrawn. 

Section 116.740 Public Notice and 

Comment 

11/29/1994 10/19/1994 Initial adoption 

7/22/1998 6/17/1998 Revised Section. 

10/25/1999 9/2/1999 Revised 30 TAC § 

116.740 (a). 

10/21/2013 12/14/2010  Revised 

resubmittal. 

 30 TAC § 

116.740(b) 
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Section Title Date Submitted to 

EPA as SIP 

Amendment 

Date Adopted by 

State 

Comments 

withdrawn. 

Section 116.750 Flexible Permit Fee 

11/29/1994 10/19/1994 Initial adoption 

7/22/1998 6/17/1998 Revised 30 TAC §§ 

116.750 (b)-(d). 

9/11/2000 8/9/2000 Revised 30 TAC § 

116.750(d). 

10/4/2002 9/25/2002 Revised 30 TAC § 

116.750(b)-(c). 

 10/21/2013 12/14/2010 Revised resubmittal. 

Section 116.760 Flexible Permit 

Renewal 

11/29/1994 10/19/1994 Initial adoption. 

Section 116.765 Compliance 

Schedule 

10/21/2013 12/14/2010 Submittal 30 TAC § 

116.765(b) and (c) 

IV. Technical Evaluation of the Texas Flexible Permit SIP Submittals. 

 The SIP submittals providing the Texas Flexible Permit provisions for air quality 

permits are evaluated for compliance with the relevant requirements of the Act and Title 40 

of the Code of Federal Regulations (40 CFR) part 51 – Requirements for Preparation, 

Adoption, and Submittal of Implementation Plans. These requirements include, but are not 

limited, to the following: 

1. §110(a)(2)(C) of the Act which provides:

(C) include a program to provide for the regulation of the modification and 

construction of any stationary source within the areas covered by the plan as necessary 

to assure that NAAQS are achieved, including a permit program as required in parts C 

and D;

2. §110(l) of the Act which provides:

(l) Plan Revisions. – Each revision to an implementation plan submitted by a State 

under this chapter 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 the 

chapter.

3. 40 CFR Subpart 51.160 – Legally enforceable procedures. The regulatory text of 40 

CFR Subpart 51.160 is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e14c7616ca&rgn=div8&view=text&node

=40:2.0.1.1.2.6.8.1&idno=40

4. 40 CFR Subpart 51.161 – Public availability of information. The regulatory text of 40 

CFR Subpart 51.161 is available on line at Electronic Code of Federal Regulations: 
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http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e14c7616ca&rgn=div8&view=text&node

=40:2.0.1.1.2.6.8.2&idno=40

5. 40 CFR Subpart 51.165 – Permit requirements. The regulatory text of 40 CFR Subpart 

51.165 is available on line at Electronic Code of Federal Regulations: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=feed49ec24fac67402c2bf6fa403850d&rgn=div8&view=text&node=

40:2.0.1.1.2.6.8.6&idno=40.

6. Other applicable requirements of the Act, 40 CFR part 51, and applicable policy and 

guidance will be identified in the evaluation where appropriate. 

7. 40 CFR 51.230(d). Requirements for all plans. The regulatory text of 40 CFR 

51.230(d) is available on line at Electronic Code of Federal Regulations:

http://www.ecfr.gov/cgibin/retrieveECFR?gp=&SID=dadd1aa10a18d5135f902665a5a22d80&n=40y2.0.1.1.

2&r=PART&ty=HTML#40:2.0.1.1.2.9.8.1. 

 Specifically, the October 21, 2013, submittal is first reviewed for completeness as a 

SIP submittal under Part 51, Appendix V, and is then compared with the general requirements 

for SIP preparation, adoption and submittal at 40 CFR Part 51. This will be followed by a 

detailed analysis of the minor NSR provisions to ensure all federal requirements at 40 CFR 

Part 51 for air permitting are satisfied. Then we review the Texas flexible permit requirements 

with respect to the current SIP-approved minor NSR provisions. Finally, the October 21, 

2013, submittal is reviewed with respect to section 110(l) of the CAA to determine whether 

the proposed revisions interfere with any applicable CAA provisions. These analyses produce 

a written technical evaluation which supports our determination in the FR to conditionally 

approve October 21, 2013, Texas Flexible Permit SIP submittal. 

IV.A. Part 51, Appendix V Evaluation of the SIP Submittal 

 The criteria for completeness determination are found in Appendix V to Part 51 - 

Criteria for determining the completeness of plan submissions and are outlined below: 

1.0 Purpose: This appendix V sets forth the minimum criteria for determining whether a 

State implementation plan submitted for consideration by EPA is an official 

submission for purposes of review under § 51.103. 

1.1 The EPA shall return to the submitting official any plan or revision thereof which fails 

to meet the criteria set forth in this appendix V, and request corrective action, 

identifying the component(s) absent or insufficient to perform a review of the 

submitted plan. 

1.2 The EPA shall inform the submitting official whether or not a plan submission meets 
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the requirements of this appendix V within 60 days of EPA's receipt of the submittal, 

but no later than 6 months after the date which the State was required to submit the 

plan or revision. If a completeness determination is not made by 6 months from receipt 

of a submittal, the submittal shall be deemed complete by operation of law on the date 

6 months from receipt. A determination of completeness under this paragraph means 

that the submission is an official submission for purposes of §51.103. 

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

Appendix V that will be used for reviewing the October 21, 2013 SIP Submittal which 

includes eleven earlier Submittals as discussed in Section III. 

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 Bryan W. Shaw, PhD, Chairman of 

the TCEQ, dated October 21, 2013. The SIP submittal was received by EPA Region 6 

Air Planning Section on October 23, 2013. 

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 resubmittal and withdrawal of previously submitted rules as well as specific 

portions of rule amendments for the Flexible Permit program as adopted by the 

Commission on December 14, 2010, were adopted by the TCEQ on September 24, 

2013, and became effective September 26, 2013. Specifically, the package consists of 

numerous rule amendments that were submitted as revisions to the Texas SIP on the 

following dates: November 29, 1994; March 13, 1996; July 22, 1998; October 25, 

1999; September 11, 2000; April 12, 2001; July 31, 2002, September 4, 2002; October 

4, 2002; September 25, 2003; July 2, 2010; October 5, 2010; and October 21, 2013. 

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 is found in 

the Texas Clean Air Act, Chapter 382 of the Texas Health and Safety Code. 
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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 October 21, 2013, cover letter accompanying the submittal requests the EPA take 

action on 1) the resubmittal of the original action (identified in Section II of this 

document); 2) the withdrawal from the EPA the consideration of the identified sections 

adopted by the Commission between 1994 and 2003 to the SIP; and 3) the adoption 

and submittal as a revision to the SIP 30 TAC §§ 116.765(b) and (c), and the submittal 

of those identified sections adopted by the Commission on December 14, 2010, as 

revisions to the SIP. 

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. 

The SIP submittal package included a certification demonstrating the SIP submittal 

was developed pursuant to 40 CFR Subpart 51.104. 

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 hearings were published in the following newspapers on the date 

listed: 

 Austin American Statesman: June 18, 2010 

 Fort Worth Star-Telegram: June 18, 2010 

 Houston Chronicle: June 18, 2010 

TCEQ conducted a public hearing in Austin, Texas, on July 29, 2010. 

TCEQ also provided publication in the Texas Register of the proposed rulemaking (35 

TexReg 306) and public hearing notice (35 TexReg 398) on July 2, 2010. 
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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. 

An order adopting revisions to the SIP was included. This order states that the public 

hearing was conducted pursuant to Texas Health and Safety Code § 382.017, Texas 

Government Code Chapter 2001, and 40 CFR Subpart 51.102. 

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

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

response to comments. TCEQ received written testimony from eight parties during the 

comment period, including EPA Region 6. TCEQ received no oral testimony from the 

public during the July 29, 2010, 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. 

The SIP submittal addresses revisions to the Flexible Permit Program, a minor NSR 

air permitting program in Texas - therefore the SIP revision has the potential to 

address all regulated pollutants. 

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. 

The provisions contained in TAC § 116 Subchapter G can be applied statewide to 

those sources seeking a flexible permit. 

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.) 

The provisions for the Texas construction permitting program do not need to include 
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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

27 

quantification of the changes in SIP allowable emissions from the affected sources. 

The mechanics of the construction permitting process ensure appropriate amounts of 

permitted emissions are approved. 

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 revision meets the Section 110(l) requirements. The rules contain a provision 

30 TAC § 116.711(8) and (9) which requires permittees to follow minimum Federal 

requirements where if increased emissions from new construction, or a physical 

change or change in the method of operation result in a quantity of emissions where 

either Federal PSD or NNSR thresholds are exceeded, than those permitting 

requirements (including conducting BACT reviews and modeling) must be followed. 

This regulatory provision ensures that emissions do not exceed thresholds established 

for major NSR permitting and therefore the permitting activities will not interfere with 

attainment or reasonable further progress of the Act. The flexible permit program is a 

minor NSR permitting program. 

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 proposed revision. 

Modeling is not specifically required by the minor source rules. However minor 

source programs must be protective of the NAAQS and the increments. Should 

construction activities result in increased emissions triggering major thresholds under 

PSD or NNSR, then the permittee is required to following major permitting 

requirements including submittal of appropriate modeling under the SIP approved 

Subchapter B permitting requirements. 

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

continuous emission reduction technology (e.g., add-on controls, industrial/process 
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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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equipment designs, reformulated materials, etc.). 

The proposed rules require facilities at an account to utilize BACT in accordance with 

TAC § 116.711(3). In addition, emission caps are developed based on BACT defined 

in TAC § 116.10 at expected maximum capacity. Should the permit be used to 

authorize any new major stationary source or major modification, emissions will be 

based on control technology determined in accordance with SIP approved Subchapter 

B. 

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

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

levels. 

Each individual issued NSR construction permit will include separate emission 

limitations, work practice standards, and recordkeeping/reporting requirements 

sufficient to ensure permitted particulate matter emission levels. The provisions 

contained in 30 TAC Subchapter G specifically address general and special conditions 

in 30 TAC § 116.715, such as establishing a pollutant specific emission cap and/or 

individual emission limits, as well as monitoring, recordkeeping, and reporting, that 

must be included in permits issued under this Part. 

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

practice (including at what frequency). 

Compliance/enforcement of the NSR permitting program will be determined on a 

permit-by-permit basis in accordance with the monitoring, recordkeeping, and 

reporting requirements set out in this Part. 

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 identified in the cover letter dated October 21, 2013, (Rule Project 

No. EPA-R06-OAR-2013-0542) meets the completeness criteria by operation of law as 

established in 40 CFR part 51, Appendix V. 

V. Do the State’s Submittals Meet the Applicable Federal Requirements?
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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 We are proposing to conditionally approve the Texas Flexible Permits State Program, 

as submitted by Texas in 30 TAC Chapter 116 – Control of Air Pollution by Permits for New 

Construction or Modification, because it does not meet certain provisions of the Act and 

EPA’s NSR regulations. The submittal includes the following regulations under Chapter 

116: 30 TAC 116.110(a)(3), 30 TAC Subchapter G – Flexible Permits, the definitions in 

30 TAC 116.13, Flexible Permits, and the definition in 30 TAC 116.10(11)(F) of 

“modification of existing facility.” It is EPA’s position that none of these identified elements 

is severable from each other. This program meets the Minor NSR SIP requirements provided 

TCEQ subsequently submits amended rules that are properly structured within and according 

to the rulemaking requirements of the Texas Administrative Procedure Act. The condition is 

expected to have a compliance deadline one year from EPA’s proposed action. The October 

submittal may have mislabeled, improperly sequenced, or have incorrectly referenced 

regulatory citations. The TCEQ has committed to providing a SIP submittal that will 

reformat, reorganize and renumber the Flexible Permits Program into a cohesive unit. This 

commitment letter is available in the docket for this rulemaking. 

A. Evaluation of the Public Participation Process for Applications for New or 

Amended Flexible Permits 

Federal public participation requirements for Minor NSR permit applications are at 40 

CFR Parts 51.160 and 161. EPA has determined that the Flexible Permit program is a minor 

NSR program; therefore the Flexible Permit program public participation provisions at 30 

TAC §§ 39.402(a)(4), 39.402(a)(5) and 116.740 will be analyzed with respect to EPA’s 

requirements for minor NSR public notice. The public participation requirements for Flexible 

Permits are found at 30 TAC § 116.740, which requires any applicant for a new Flexible 

Permit or amendment to a Flexible Permit to comply with the requirements established in 

Chapter 39 related to Public Notice. Chapter 39 separately applies the public participation 

process to applications for new Flexible Permits at 30 TAC § 39.402(a)(4) and applications 

for amendments to a Flexible Permit at 30 TAC 39.402(a)(5). The applicability of the Texas 

public participation requirements for applications for new or amended Flexible Permits is 

summarized below: 

 New flexible permits – 30 TAC § 39.402(a)(4). Applications for new flexible permits 

under Chapter 116, Subchapter G (relating to Flexible Permits) 

 Amendments to flexible permits – 30 TAC § 39.402(a)(5). Amendments to flexible 

permits go through public notice when the flexible permit amendment involves: 

a) a change occurs in the character of emissions or release of an air contaminant 

not previously authorized under the permit (i.e., change in control method or 

an increase in emission rate) – 30 TAC § 39.402(a)(5)(A); 
TECHNICAL SUPPORT DOCUMENT 

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Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

30 

b) the total emissions increase from all facilities to be authorized under the 

amended permit at a facility not affected by THSC, section 382.0201

, exceeds 

the State’s established “public notice de minimis” levels – 30 TAC § 

39.402(a)(5)(B); 

c) the total emissions increase from all facilities to be authorized under the 

amended permit at a facility affected by THSC, section 382.020, exceeds the 

State’s established “public notice significant” levels– 30 TAC § 

39.402(a)(5)(C); or 

d) other minor amendments where the Executive Director determines reasonable 

likelihood for interest or impact – 30 TAC § 39.402(a)(5)(D)(i)-(iv). 

 The notice requirements for each type of flexible permit application listed above is 

generally the same – meaning that an application for a flexible permit amendment above the 

“de minimis” or “insignificant” thresholds – will have the same public notice requirements as 

an application for a new flexible permit. The following analysis is confined solely to the 

approvability of the public participation requirements used for flexible permit applications. 

EPA provides a separate analysis of the approvability of the Flexible Permit program at 30 

TAC Chapter 116, Subchapter G later in this TSD. 

1. Public Participation Process 

 The following steps provide a general overview of the Texas public notice process for 

an application for a new or amended Flexible Permit. Note that the Flexible Permit Program 

states that a flexible permit application will be reviewed in accordance with 30 TAC § 

116.114 (relating to Application Review Schedule). 

1. Applicant submits application for a new or amended Flexible Permit to TCEQ. 

See 30 TAC § 116.711. 

2. TCEQ reviews the application and determines whether the application is 

administratively complete. During this process, the TCEQ has 90 days to 

determine the application is complete or request additional information. See 30 

TAC 116.714, which cross-references the requirements at 30 TAC § 

116.114(a)(1). 

3. Once the application is administratively complete, the applicant publishes the 

first notice, the Notice of Receipt of Application and Intent to Obtain Permit 

(NORI). See 30 TAC § 39.418(e). The NORI is a unique feature of the Texas 

Public Notice Process. The NORI provides information to the public about the 

receipt of an application and provides basic information about the proposed 

new source or modification such as a description of the location and the nature 

of the proposed activity, a description of the public comment process, and the 

location where materials will be made available for review. The NORI does 

                                                           

1

 THSC, § 382.020 establishes emission control requirements for selected agricultural facilities such as cotton 

gins, corn mills, grain elevators, peanut processing and rice drying facilities. THSC § 382.020 applies statewide. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

31 

not provide any technical information, but rather serves as an indicator of 

future public notices and actions that may be of interest, enabling the public to 

anticipate draft permits. The NORI is required for all new applications for 

Flexible Permits at 30 TAC § 39.402(a)(4) and most applications for 

amendments to Flexible Permits at 30 TAC § 39.402(a)(5). Note that certain 

applications for Flexible Permit amendments at 30 TAC § 39.402(a)(5) are 

exempted from the Chapter 39 public notice provisions as discussed in Section 

V.A.3 of this TSD. 

4. TCEQ completes the technical review and makes a preliminary decision. The 

TCEQ has 180 days from the date a new Flexible Permit application is 

administratively complete, or 150 days from the date a Flexible Permit 

amendment application is administratively complete, to conduct the technical 

review and make a preliminary decision. See 30 TAC § 116.714, which crossreferences the requirements at 30 TAC § 116.114(a)(2). 

5. The applicant is required to publish the second notice, the Notice of 

Application and Preliminary Decision (NAPD) when notified by TCEQ of the 

preliminary decision. See 30 TAC § 39.419. The NAPD notice provides the 

information and notice to the public consistent with federal requirements. The 

NAPD provides details about the preliminary decision and draft permit and the 

location where applicable air quality analyses and other technical materials will 

be made available for public review. NAPD is required for all air quality 

permit applications for new Flexible Permits and most Flexible Permit 

applications subject to the Chapter 39 public notice provisions. Note that 

certain applications for Flexible Permit amendments are exempted from the 

Chapter 39 public notice provisions at 30 TAC § 39.402(a)(5) as discussed in 

Section V.A.3 of this TSD. 

6. The TCEQ files the ED’s draft permit and preliminary decision, the 

preliminary determination summary and air quality analysis with the chief 

clerk and the clerk posts on the TCEQ’s website. See 30 TAC § 39.419(e). 

7. The comment period runs for 30 days after the last publication of the NAPD 

discussed in Step 5. See 30 TAC § 55.152(a)(1). 

8. A public meeting is held if the ED determines there is a substantial or 

significant degree of public interest; if the meeting is requested by a member of 

the legislature representing the general area of the proposed 

facility/modification; if a public meeting is otherwise required by law. See 30 

TAC § 55.154(c). 

9. The ED prepares a response to all comments received. See 30 TAC § 

55.156(b)(1). 

10. The ED files the response to comments with the chief clerk as soon as 

practicable, but not later than 60 days after the end of the comment period. See 

30 TAC § 55.156(b)(3). 
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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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11. The chief clerk will mail or transmit the ED decision and the RTC to the 

applicant, any person who submitted comments and any person on the mailing 

list for the permit action. See 30 TAC § 55.156(c). 

12. The ED will take final action on the permit application within 150 days of 

receipt of a Flexible Permit amendment application or 180 days for a new 

Flexible Permit application. The TCEQ’s one-year clock is based on the 

completion of the technical review and the publication of the NAPD as 

provided in Step 5. See 30 TAC § 116.714, which cross-references the 

requirements at 30 TAC § 116.114(c)(3). 

2. Analysis of Requirements in 40 CFR 51 Specific to Public Participation for 

Flexible Permits 

 Tables V.A-1 and A-2 provides a line-item comparison of the Minor NSR 

requirements of §§ 51.160 and 51.161 and the comparable Texas Public Participation 

provisions for Flexible Permits. 

Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

(a) Each plan must set forth legally 

enforceable procedures that enable 

the State or local agency to 

determine whether the construction 

or modification of a facility, 

building, structure or installation, or 

combination of these will result in – 

(1) A violation of applicable 

portions of the control 

strategy; or 

(2) Interference with 

attainment or maintenance 

of a national standard in 

the State in which the 

proposed source (or 

modification) is located or 

in a neighboring State. 

§ 116.711. Flexible Permit 

Application. 

As adopted by TCEQ on December 

14, 2010. 

Submitted for SIP review on 

October 21, 2013. 

In order to be granted a flexible 

permit or flexible permit 

amendment, the owner or operator 

of the proposed facility shall submit 

a permit application which must 

include: 

2. Information which 

demonstrates that emissions 

from the facility, including any 

associated dockside vessel 

emissions, meet all of the 

following: 

A. Protection of public health 

and welfare. 

i. The emissions from the 

Section 116.711 (2)(A) requires 

that the application for a flexible 

permit or flexible permit 

amendment must demonstrate 

protection of public health and 

welfare. Section 116.711 (2)(A)(i) 

requires that emissions from the 

proposed facility will comply with 

all rules and regulations of the 

TCEQ and the TCAA. Therefore, 

Section 116.711 provides the 

necessary legally enforceable 

procedures to protect the NAAQS. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

proposed facility, group 

of facilities, or account 

as determined under 30 

TAC § 116.716 of this 

title (relating to Emission 

Caps and Individual 

Emission Limitations), 

will comply with all 

applicable rules of the 

commission and with the 

intent of the TCAA, 

including protection of 

the health and physical 

property of the people. 

(b) Such procedures must include 

means by which the State or local 

agency responsible for final 

decision making on an application 

for approval to construct or modify 

will prevent such construction or 

modification if – 

(1) It will result in a violation 

of applicable portions of 

the control strategy; or 

(2) It will interfere with 

attainment or maintenance 

of a national standard 

§ 116.711. Flexible Permit 

Application. 

As adopted by TCEQ on December 

14, 2010. 

Submitted for SIP review on 

October 21, 2013. 

In order to be granted a flexible 

permit or flexible permit 

amendment, the owner or operator 

of the proposed facility shall submit 

a permit application which must 

include: 

3. Information which 

demonstrates that emissions 

from the facility, including any 

associated dockside vessel 

emissions, meet all of the 

following: 

A. Protection of public health 

and welfare. 

i. The emissions from the 

proposed facility, group 

of facilities, or account 

as determined under 30 

TAC § 116.716 of this 

title (relating to Emission 

Caps and Individual 

Emission Limitations), 

will comply with all 

applicable rules of the 

As the Minor NSR permitting 

authority in Texas, the TCEQ has 

established the criteria by which 

Minor NSR flexible permits and 

flexible permit amendments will 

be issued. These criteria 

(submitted for SIP approval at 30 

TAC § 116.711(a) include the 

requirement that the applicant 

demonstrate that emissions from 

the facility comply with all rules 

and regulations necessary to 

protect human health and the 

environment. The TCEQ has the 

authority to receive application 

materials and review these 

materials for technical merit. If the 

technical justifications for the 

permit application are not valid, 

then the TCEQ has the authority to 

not issue the permit. EPA 

approved these Minor NSR 

permitting provisions as 

appropriate to protect the NAAQS, 

consistent with 40 CFR Subpart 

51.160(b) and the CAA when we 

SIP-approved the Minor NSR 

program. The Texas Flexible 

Permit program has been 

submitted for SIP approval as 

component of the Minor NSR 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

commission and with the 

intent of the TCAA, 

including protection of 

the health and physical 

property of the people. 

program. EPA proposes to find 

that the application process and 

requirements provided at 30 TAC 

§ 116.711 is consistent with 40 

CFR Subpart 51.160(b). 

(c) The procedures must provide 

for the submission, by the owner or 

operator of the building, facility, 

structure, or installation to be 

constructed or modified, of such 

information on – 

(1) The nature and amounts of 

emissions to be emitted by 

it or emitted by associated 

mobile sources; 

(2) The location, design, 

construction, and 

operation of such facility, 

building, structure, or 

installation as may be 

necessary to permit the 

State or local agency to 

make the determination 

referred to in paragraph (a) 

of this section. 

39.411. Text of Public Notice. 

As adopted by the TCEQ June 2, 

2010. Approved by EPA on 

November 25, 2013 and published 

in the Federal Register on 

January 6, 2014. 

(e) When NORI by publication or 

mail is required by Subchapter H 

and K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

in this subsection. 

(1) the name and address of the 

agency and the telephone number of 

an agency contact from whom 

interested persons may obtain 

further information; 

(2) the name, address, and 

telephone number of the applicant 

and a description of the manner in 

which a person may contact the 

applicant for further information; 

(3) a brief description of the 

location and nature of the proposed 

activity; 

(4) a brief description of public 

comment procedures 

... 

(f) When NAPD by publication or 

mail is required by Subchapters H 

and K of this chapter for air quality 

permit applications, the text of the 

notice must include the information 

On January 6, 2014, EPA 

approved the provisions at 30 TAC 

§ 39.411 for the text of the public 

notice as adopted by the TCEQ on 

June 2, 2010. See 79 FR 551. 

Note 30 TAC § 39.411 was not 

revised or resubmitted with the 

Flexible Permits program. 

However, in this TSD we are 

evaluating applicability statements 

in Chapter 39 that will apply the 

provisions at 30 TAC § 39.411 to 

applications for new and amended 

Flexible Permits. 

Minor NSR permit applications, 

including applications for flexible 

permits and flexible permit 

amendments, are subject to both 

first (NORI) and second (NAPD) 

notice. The text of the NORI will 

provide the general information 

about the proposed source or 

modification. The text of the 

NAPD, along with the preliminary 

decision and draft permit, will 

provide the more detailed 

information used by the TCEQ in 

making the permit decision. The 

excerpts from 30 TAC § 39.411(e) 

and (f) demonstrate the factual 

information that must be part of a 

notice. 

Additionally, as the Minor NSR 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

in this subsection: 

(1) the information required by 

subsection (e) of this section 

[information in the NORI notice]; 

(2) a summary of the ED’s 

preliminary decision and whether 

the ED has prepared a draft permit; 

... 

(8) in addition to the requirements 

in paragraphs (1) – (7) of this 

subsection, for air quality permit 

applications filed on or after the 

effective date of this section for 

permits under Chapter 116, 

Subchapter B, Divisions 5 and 6: 

(A) as applicable, the degree of 

increment consumption 

(B) a statement that the state’s air 

quality analysis is available for 

comment 

... 

permitting authority in Texas, the 

TCEQ has the authority to request 

the information necessary to 

properly review a permit 

application and make a decision on 

said application. The TCEQ must 

make a finding of administrative 

completeness within 90 days of 

receiving the application; the final 

decision on any amendment 

application must be made within 

150 days of a complete 

application, other permit 

applications are within 180 days. 

Therefore, 30 TAC § 39.411(e) 

and (f) satisfy the requirements of 

40 CFR Subpart 51.160(c). 

(d)The procedures must provide 

that approval of any construction or 

modification must not affect the 

responsibility to the owner or 

operator to comply with applicable 

portions of the control strategy. 

§116.715. General and Special 

Conditions. 

As adopted by TCEQ December 14, 

2010. 

Submitted for SIP-approval on 

October 23, 2013. 

(a) Flexible permits may contain 

general and special conditions. The 

holders of flexible permits shall 

comply with any and all such 

conditions. 

... 

(c) The following general 

conditions shall be applicable to 

every flexible permit. 

(11) Compliance with rules. 

Acceptance of a flexible permit by a 

permit applicant constitutes an 

acknowledgment and agreement 

Section 116.715 demonstrates that 

the Texas Flexible Permits 

program has the necessary legally 

enforceable procedures providing 

that approval of any construction 

or modification does not affect the 

owner/operator’s responsibility to 

comply with the applicable 

portions of the control strategy. 

EPA proposes that 30 TAC § 

116.715 satisfies 40 CFR Subpart 

51.160(d). 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

that the permit holder will comply 

with all applicable Rules and Orders 

of the commission issued in 

conformity with the Texas Clean 

Air Act and the conditions 

precedent to the granting of the 

permit. If more than one state or 

federal rule or regulation or flexible 

permit condition are applicable, 

then the most stringent limit or 

condition shall govern and be the 

standard by which compliance shall 

be demonstrated. Acceptance of the 

permit 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 flexible permit. 

(e) The procedures must identify 

types and sizes of facilities, 

buildings, structures, or 

installations which will be subject 

to review under this section. The 

plan must discuss the basis for 

determining which facilities will be 

subject to review. 

See above for the requirements in 

§ 116.711.§ 116.740. Public Notice 

and Comment. 

As adopted by TCEQ on December 

14, 2010. 

Submitted for SIP approval on 

October 21, 2013. 

(a) Any person who applies for a 

flexible permit or an amendment to 

a flexible permit shall comply with 

the requirements in Chapter 39 of 

this title (relating to Public Notice). 

As the Minor NSR permitting 

authority in Texas, the TCEQ has 

established the criteria by which 

Minor NSR permits will be issued. 

These criteria at 30 TAC § 

116.711 include the requirement 

that the applicant demonstrate that 

emissions from facility comply 

with all rules and regulations 

necessary to protect human health 

and the environment. Note that 

under the Texas SIP, all increases 

in emissions will be permitted – 

either as major or minor NSR 

permit or meet the criteria for 

authorization as a permit by rule or 

standard permit. 

Additionally, the Public Notice 

and Comment provisions at 30 

TAC § 116.740(a) provide that 

applications for flexible permits 

and flexible permit amendments 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

must comply with the Chapter 39 

Public Notice requirements. As 

will be detailed later, the Public 

Notice provisions at Chapter 39 

require the applicant to identify the 

facility that will be subject to 

review and provide opportunity for 

comment. Minor NSR applications 

for flexible permits and flexible 

permit amendments are subject to 

NORI and NAPD permitting so the 

SIP-approved public notice 

requirements at 30 TAC §§ 39.418 

and 39.419 apply to Flexible 

Permits. 

The TCEQ has the authority to 

receive application materials and 

review these materials for 

technical merit. If the technical 

justifications for the permit 

application are not valid, then the 

TCEQ has the authority to not 

issue the permit. EPA proposes to 

find that 30 TAC §§ 116.711 and 

116.740 satisfy the requirements of 

40 CFR Subpart 51.160(e). 

(f)The procedures must discuss the 

air quality data and the dispersion 

or other air quality modeling used 

to meet the requirements of this 

subpart. 

(1) All applications of air quality 

modeling involved in this subpart 

shall be based on the applicable 

models, data bases, and other 

requirements specified in appendix 

W of this part (Guideline on Air 

Quality Models). 

(2) Where an air quality model 

specified in appendix W of this part 

is inappropriate, the model may be 

modified or another model 

§ 116.711. Flexible Permit 

Application. 

As adopted by TCEQ on December 

14, 2010. 

Submitted for SIP review on 

October 21, 2013. 

In order to be granted a flexible 

permit or flexible permit 

amendment, the owner or operator 

of the proposed facility shall submit 

a permit application which must 

include: 

2. Information which 

demonstrates that emissions 

from the facility, including any 

associated dockside vessel 

Section 30 TAC § 116.711(2)(J) 

requires applicant to submit 

necessary air dispersion modeling 

or ambient monitoring with the 

application for the flexible permit 

or flexible permit amendment. 

Section 30 TAC § 116.711(2)(J) 

satisfies 40 CFR Subpart 

51.160(f). 

Minor NSR permit applications, 

including applications for flexible 

permits and permit amendments, 

are subject to both NORI and 

NAPD notice – therefore any 

technical information such as 

dispersion modeling or source 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

substituted. Such a modification or 

substitution of a model may be 

made on a case-by-case basis or, 

where appropriate, on a generic 

basis for a specific State program. 

Written approval of the 

Administrator must be obtained for 

any modification or substitution. In 

addition, use of a modified or 

substituted model must be subject 

to notice and opportunity for public 

comment under procedures set forth 

in § 51.102. 

emissions, meet all of the 

following: 

... 

J. Air dispersion modeling or 

ambient monitoring. Any 

permit application for a 

new flexible permit, or 

permit amendment to 

increase a flexible permit 

emission cap or individual 

emission limitation, shall 

include an air quality 

analysis to demonstrate 

that the proposed action 

will not interfere with 

attainment and 

maintenance of the 

National Ambient Air 

Qualtiy Standards. 

Computerized air 

dispersion modeling and/or 

ambient monitoring may be 

required by the 

commision’s Air Permits 

Division to determine the 

air quality impacts from the 

facility, group of facilities, 

or account. In conducting a 

review of a permit 

application for a 

shipbuilding or ship repair 

operation, the commission 

will not require and may 

not consider air dispersion 

modeling results predicting 

ambient concentrations of 

non-criteria air 

contaminants over coastal 

waters of the state. The 

commission shall 

determine compliance with 

non-criteria ambient air 

contaminant standards and 

guidelines at land-based 

off-property locations. 

impact analysis will be available 

for public review and comment. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

39 

Table V.A-1: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.160 

40 CFR 51.160 Texas Minor NSR Flexible 

Permits Provisions 

Analysis 

 Table V.A-1 above demonstrates that the public participation requirements specific to 

new flexible permits or amendments to existing flexible permits satisfy the federal 

requirements found at 40 CFR 51.160. 

Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

(a) The legally enforceable 

procedures in §51.160 must also 

require the State or local agency to 

provide opportunity for public 

comment on information submitted 

by owners and operators. The 

public information must include the 

agency's analysis of the effect of 

construction or modification on 

ambient air quality, including the 

agency's proposed approval or 

disapproval. 

39.405. General Notice Provisions.

As adopted by the TCEQ on June 

2, 2010. 

Approved by EPA on November 

25, 2013, and published in the 

Federal Register on January 6, 

2014. 

(g) Copy of application. The 

applicant shall make a copy of the 

application available for review and 

copying at a public place in the 

county in which the facility is 

located or proposed to be located. 

... 

The copy of the application must 

comply with the following. 

(1) A copy of the 

administratively complete 

application must be 

available for review and 

copying beginning on the 

first day of newspaper 

publication of NORI and 

remain available for the 

publications’ designated 

comment period. 

(2) A copy of the complete 

application (including any 

subsequent revisions to the 

application) and ED’s 

preliminary decision must 

be available for review and 

copying beginning on the 

first day of newspaper 

publication required by 

EPA approved the provisions at 30 

TAC §§ 39.405 and 55.152 on 

January 6, 2014. See 79 FR 551. 

Section 39.405 requires that the 

application, subsequent revisions 

to the application, the ED’s 

preliminary analysis, and the air 

quality analysis be made available 

for public review and comment. 

Section 39.405 satisfies the 

requirements at § 51.161(a) for 

which materials are made available 

for public comment for Minor 

NSR permit applications. 

Section 55.152 provides at least a 

30-day comment period after the 

last publication of the NAPD. 

Because Minor NSR permit 

applications, including 

applications for new and amended 

Flexible Permits, are subject to 

NORI and NAPD notice 

requirements, the public is 

afforded the opportunity to 

comment on the application and 

related materials twice in the 

permitting process, which is more 

stringent than the federal 

requirements for Minor NSR. 

Section 55.152 ensures that the 

public is provided the opportunity 

to comment consistent with § 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

40 

Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

this section and remain 

available until the 

commission has taken 

action on the application or 

the commission refers 

issues to SOAH. 

(3) Where applicable, for air 

quality permit applications 

filed on or after the 

effective date of this 

section( June 24, 2010) the 

applicant shall also make 

available the ED’s draft 

permit, preliminary 

determination summary 

and air quality analysis for 

review and copying 

beginning on the first day 

of newspaper publication 

required by 39.419 for 

NAPD and remain 

available until the 

commission has taken 

action on the application or 

referred to SOAH 

§ 55.152. Public Comment Period 

As adopted by the TCEQ on 

June 2, 2010. 

Approved by EPA on November 

25, 2013, and published in the 

Federal Register on January 6, 

2014. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, 

or 30 days after the NAPD 

if a second notice is 

required, for an air quality 

permit application not 

51.161(a). 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

41 

Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

otherwise specified in this 

section. 

 (2) 15 days after the last 

publication of Notice of 

Receipt of Application and 

Intent to Obtain Permit 

under §39.418 of this title, 

or 30 days after Notice of 

Application and 

Preliminary Decision if a 

second notice is required 

under §39.419 of this title, 

for a permit renewal under 

Chapter 116 of this title 

(relating to Control of Air 

Pollution by Permits for 

New Construction or 

Modification) or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted by 

the commission under 

Chapter 116, Subchapter F 

of this title (relating to 

Standard Permits), unless 

the plant is to be 

temporarily located in or 

contiguous to the right-ofway of a public works 

project; 

(b) For purposes of paragraph (a) of 

this section, opportunity for public 

comment shall include, as a 

minimum— 

(1) Availability for public 

inspection in at least one 

location in the area 

affected of the information 

submitted by the owner or 

operator and of the State 

or local agency's analysis 

of the effect on air quality; 

 39.405(g) generally requires the 

applicant to make information 

available for review and copying 

in county of location or 

proposed location. 

 39.405(g)(1) requires the 

applicant to make available for 

review the administratively 

complete application. 

 39.405(g)(2) requires the 

applicant to make available for 

review the complete application, 

any subsequently submitted 

materials, and the ED’s 

preliminary decision. 

 39.405(g)(3) requires the 

On January 6, 2014, EPA 

approved the provisions at 30 TAC 

§ 39.405 as adopted by the TCEQ 

on June 2, 2010. See 79 FR 551. 

Section 39.405 satisfies the 

requirements at § 51.161(b)(1) for 

public inspection in at least one 

location in the affected area of the 

information submitted by the 

owner/operator and the air quality 

analysis for the Minor NSR permit 

application, including applications 

for a new or amended Flexible 

Permit 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

applicant to make available for 

review the air quality analysis 

for applications submitted after 

the effective date of the rule, 

June 24, 2010. 

(2) A 30-day period for 

submittal of public 

comment; and 

39.409. Deadline for Public 

Comment, and for Requests for 

Reconsideration, Contested Case 

Hearing, or Notice and Comment 

Hearing. 

As adopted by the TCEQ on June 

2, 2010. 

Approved by EPA on November 

25, 2013, and published in the 

Federal Register on January 6, 

2014. See EPA-R06-OAR-2010-

0612. 

Notice given under this chapter will 

specify any applicable deadline to 

file public comment specified under 

§ 551.152 of this title and, if 

applicable, any deadlines to file 

requests for reconsideration, 

contested case hearing, or notice 

and comment hearing. After the 

deadline, final action on an 

application may be taken under 

Chapter 50. 

55.152. Public Comment Period. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, 

or 30 days after the NAPD 

if a second notice is 

required, for an air quality 

permit application not 

otherwise specified in this 

section. 

(2) 15 days after the last 

On January 6, 2014, EPA 

approved the provisions at 30 TAC 

§ 39.409 as adopted by the TCEQ 

on June 2, 2010. See 79 FR 551. 

Minor NSR permit applications, 

including applications for new and 

amended Flexible Permits, are 

subject to both NORI “first” notice 

and NAPD “second” notice. The 

NORI gives a 30 day notice on the 

application. After the TCEQ 

completes the technical analysis, 

the draft decision along with the 

air quality analysis and other 

technical documents are available 

for another 30 day notice period. 

Section 55.152 generally provides 

that comment period is 30 days 

after the last publication of the 

NAPD. Because Minor NSR 

permit applications, including 

applications for new and amended 

Flexible Permits, are subject to 

NORI and NAPD notice 

requirements, the public is 

afforded the opportunity to 

comment on the application and 

related materials twice in the 

permitting process, which is more 

stringent than the federal 

requirements for Minor NSR. 30 

TAC § 55.152 ensures that the 

public is provided the opportunity 

to comment consistent with 40 

CFR Subpart 51.161(a). 

30 TAC § 55.152 satisfies the 

requirements of 40 CFR Subpart 

51.161(b)(2). 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

43 

Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

publication of Notice of 

Receipt of Application and 

Intent to Obtain Permit 

under §39.418 of this title, 

or 30 days after Notice of 

Application and 

Preliminary Decision if a 

second notice is required 

under §39.419 of this title, 

for a permit renewal under 

Chapter 116 of this title 

(relating to Control of Air 

Pollution by Permits for 

New Construction or 

Modification) or a concrete 

batch plant without 

enhanced controls 

authorized by a air quality 

standard permit adopted by 

the commission under 

Chapter 116, Subchapter F 

of this title (relating to 

Standard Permits), unless 

the plant is to be 

temporarily located in or 

contiguous to the right-ofway of a public works 

project; 

(3) A notice by prominent 

advertisement in the area 

affected of the location of 

the source information and 

analysis specified in 

paragraph (b)(1) of this 

section. 

30 TAC 39.419. Notice of 

Application and Preliminary 

Determination. 

As adopted by the TCEQ on June 

2, 2013. 

Approved by EPA on November 

25, 2013, and published in the 

Federal Register on January 6, 

2014. See EPA-R06-OAR-2010-

0612. 

(e)(1) NAPD follows requirements 

of Chapter 39, Subchapter K. 

Subchapter K 

39.603. Newspaper Notice. 

On January 6, 2014, EPA SIP 

approved the provisions at 30 TAC 

§§ 39.419 and 39.603 as adopted 

by the TCEQ on June 2, 2010. See 

79 FR 551. 

Minor NSR permit applications, 

including applications for new and 

amended Flexible Permits, are 

subject to both NORI and NAPD. 

Therefore, we use the requirements 

at 30 TAC §§ 39.418, 39.419 and 

39.603(b). 

Subchapter K provides 

requirements for Mailed Notice, 

Newspaper publication, and sign 

posting. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

As adopted by the TCEQ on June 

2, 2010. 

Approved by EPA on on 

November 25, 2013, and 

published in the Federal Register 

on January 6, 2014. See EPAR06-OAR-2010-0612. 

(a) NORI under §39.419 is required 

to be published no later than 30 

days after the executive director 

declares an application 

administratively complete. This 

notice must contain the text as 

required by §39.411(e).

(b) NAPD under §39.419 is 

required to be published within 33 

days after the chief clerk has mailed 

the preliminary decision 

concurrently with the NAPD to the 

applicant. This notice must contain 

the text required at § 39.411(f). 

(c) General newspaper notice 

requires notice to be published in a 

newspaper of general circulation in 

the municipality in which the 

facility is located or is proposed to 

be located or in the municipality 

nearest to the location or proposed 

location of the facility, unless 

otherwise specified. Section 

39.603(c) further requires that 

within the newspaper, the applicant 

must provide 2 separate 

notifications with the required 

material. 

39.604. Sign Posting. 

As adopted by the TCEQ on June 

2, 2010. 

Approved by EPA on November 

25, 2013, and published in the 

Federal Register on January 6, 

2014. See EPA-R06-OAR-2010-

0612. 

(a) At the applicant’s expense, a 

sign or signs must be placed at the 

site of the existing or proposed 

Newspaper notice is the traditional 

vehicle used by EPA to 

prominently advertise a proposed 

source. 30 TAC § 39.603(c) 

requires publication in a 

newspaper of general circulation in 

the municipality in which the 

facility is located or proposed to be 

located, or in the municipality 

nearest the location or proposed 

location. 30 TAC § 39.603(c) 

further requires that within the 

newspaper, the applicant must 

provide 2 separate notifications 

with the required material. 30 TAC 

§ 39.603 satisfies the prominent 

advertisement requirements of 40 

CFR Subpart 51.161. 

Historically, EPA has not 

considered or used sign posting as 

prominent advertisement. 

Therefore any Texas provisions 

requiring sign postage are more 

stringent than federal requirements 

for prominent advertisement. EPA 

approved the sign posting 

requirements at 30 TAC § 39.604 

on January 6, 2014. See 79 FR 

551. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

facility declaring the filing of an 

application for a permit and stating 

the manner in which the 

commission may be contacted for 

further information. 

(c) Where the 30-day comment 

period required in paragraph (b) of 

this section would conflict with 

existing requirements for acting on 

requests for permission to construct 

or modify, the State may submit for 

approval a comment period which 

is consistent with such existing 

requirements. 

55.152. Public Comment Period. 

As adopted by the TCEQ on June 

2, 2010. 

Approved by EPA on November 

25, 2013, and published in the 

Federal Register on January 6, 

2014. See EPA-R06-OAR-2010-

0612. 

(a) Public Comments must be filed 

with the chief clerk within the time 

period specified in the notice. The 

public comment period shall end 30 

days after the last publication of the 

NAPD, except that the time period 

shall end: 

(1) 30 days after the last 

publication of the NORI, 

or 30 days after the NAPD 

if a second notice is 

required, for an air quality 

permit application not 

otherwise specified in this 

section. 

30 TAC § 39.419 establishes that 

the NAPD applies to Minor NSR 

applications, including 

applications for new and amended 

Flexible Permits. 30 TAC § 

55.152(a) provides generally a 30-

day comment period following the 

publication of the NAPD. 

(d) A copy of the notice required by 

paragraph (b) of this section must 

also be sent to the Administrator 

through the appropriate Regional 

Office, and to all other State and 

local air pollution control agencies 

having jurisdiction in the region in 

which such new or modified 

installation will be located. The 

notice also must be sent to any 

other agency in the region having 

responsibility for implementing the 

procedures required under this 

subpart. For lead, a copy of the 

notice is required for all point 

sources. The definition of point for 

lead is given in §51.100(k)(2). 

39.605. Notice to Affected 

Agencies. 

As adopted by the TCEQ on June 

2, 2010. 

Approved by EPA on November 

25, 2013, and published in the 

Federal Register on January 6, 

2014. See EPA-R06-OAR-2010-

0612. 

In addition to the requirements in § 

39.405(f)(3) of this title: 

(1) When newspaper notices are 

published under this section, 

the applicant shall furnish a 

copy of the notices and 

affidavit to: 

For applications for air quality 

permits, including applications for 

new and amended Flexible 

Permits, Section 39.605 requires 

that copies of newspaper notices 

and sign posting verification be 

sent to the R6 RA, state and 

location air pollution control 

agencies, and Federal or State 

Land Managers or Indian 

Governing Body. 

30 TAC § 39.605 satisfies 40 CFR 

Subpart 51.161(d). 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Table V.A-2: Analysis of the Texas Public Participation Requirements for Applications for New and 

Amended Flexible Permits with the Requirements of 40 CFR 51.161 

40 CFR 51.161 Texas Public Participation 

Provisions 

Analysis 

 (A). The EPA regional 

administrator in Dallas; 

(B). All local air pollution 

control agencies with 

jurisdiction in the county 

in which the construction 

is to occur; 

(C). The air pollution control 

agency of any nearby state 

in which air quality may 

be adversely affected by 

the emissions from the 

new or modified facility; 

and 

(D).If notice is for an 

application filed on or 

after the effective date of 

this section for a PSD or 

NNSR permit, the chief 

executives of the city and 

county where the source 

would be located, and any 

State or Federal Land 

Manager, or Indian 

Governing Body whose 

lands may be affected by 

emissions from the source 

or modification. 

(2) When sign posting is required 

under this section, the 

applicant shall furnish a copy 

of sign posting verification, 

within 10 business days after 

the end of the comment period 

associated with the notice 

under 30 TAC § 39.418 to: 

(A). The chief clerk; 

(B). The ED, and; 

(C). Those listed in paragraphs 

(1)(A)-(C). 

 Table V.A-2 above demonstrates that the public participation requirements specific to 

applications for new or amended Flexible Permits satisfy the federal requirements found at 40 

CFR 51.161. 

 Note that the applicant is legally responsible for the publication of the NORI and 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

47 

NAPD, using the specific notice text provided through regulations by the TCEQ. The 

applicant is also legally responsible for providing copies of the public notice documents to the 

EPA Regional Office, local air pollution control agencies with jurisdiction in the county, and 

air pollution control agencies of nearby states that may be impacted by the proposed new 

source or modification. The SIP-approved Texas public participation rules establish that the 

applicant, rather than the State permitting authority, is the legally responsible party for 

satisfying the public notice requirements for Minor NSR applications. The applicant is 

required to follow the Texas public notice regulations, which specify the text for the notice 

documents and specify the additional agencies that will receive notice. Texas’s regulations 

identifying the applicant as the legally responsible party is equivalent to the scheme in the 

already SIP-approved Public Participation Program (see 77 FR 74129, at 74134).The sectionby-section analysis provided in Tables V.A-1 and A-2 of the federal Minor NSR public 

participation requirements with the corresponding Texas requirements for public participation 

of Minor NSR permit applications, including applications for new and amended Flexible 

Permits has shown that the Texas program satisfies all federal requirements for public notice 

for applications for new and amended Flexible Permits. It is recommended that EPA publish a 

proposed approval of the Texas public participation program for applications for new and 

amended Flexible Permits under the Texas Minor NSR Flexible Permits Program. 

3. Minor NSR Public Notice Requirements Specific to Two Types of Minor NSR 

Flexible Permit Amendment Applications

The submitted Texas public participation provisions for applications for new and 

amended Flexible Permits create a tiered program, wherein two certain types of Minor NSR 

Flexible Permit amendment applications that have been defined by TCEQ as “de minimis” or 

“insignificant” will not automatically require public notice. The following outlines the 

specific thresholds that qualify as “de minimis” or “insignificant” under the revised rules, and 

the basis for TCEQ’s determination. Note that EPA has already approved this tiered approach 

as it applies to Minor NSR permit amendments. January 6, 2014, at 79 FR 551. The rationale 

for EPA’s approval is included in this TSD for informational purposes. 

a. Identification of the Minor NSR Flexible Permits Emission Thresholds and 

Affected Source Populations 

 Thresholds are only used for Flexible Permit amendment applications. Applications 

for new Minor NSR Flexible Permits are required by these submitted rules to go 

through the public procedures of the NORI and NAPD. The applications for 

amendments to Flexible Permits are further divided based on the amount of emission 

increases at issue and whether the facility is affected by THSC section 382.020. 

 THSC section 382.020 applies to an agricultural facility such as corn mill, cotton 

gin, feed mill, grain elevator, peanut processing facility or rice drying facility. 

o Section 39.402(a)(5)(B) provides that if the application for the amendment of a 

Flexible Permit is not for an affected agricultural facility then the public notice 

provided through the NORI and NAPD apply, unless the total emissions 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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increase from all facilities authorized in the Flexible Permit amendment does 

not exceed any of the following levels established by the State as “de minimis” 

levels: 

 50 TPY CO 

 10 TPY SO2

 0.6 TPY lead 

 5 TPY of NOX, VOC, PM, or any other contaminant except carbon 

dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen. 

o Section 39.402(a)(5)(C) provides that if the amendment for a Flexible Permit is 

for an affected agricultural facility, then the public notice requirements of the 

NORI and NAPD apply, unless the total emissions increase from all authorized 

facilities in the Flexible Permit amendment does not exceed any of the 

following thresholds established by the State as “insignificant” thresholds: 

 250 TPY CO or NOX

 25 TPY of VOC, SO2, PM or any other air contaminant except 

CO2, H2O, N2, CH4, C2H6, H2 and O2. 

 A new major stationary source or major modification threshold 

as defined in section 116.12 of this title 

 A new major stationary source or major modification threshold, 

as defined in 40 CFR 52.21 under the PSD requirements 

 If the Flexible Permit amendment application includes proposed emissions 

increases of any air contaminant above the identified threshold then the 

amendment application is required to go through notice pursuant to Chapter 39 

requirements. That means the Flexible Permit amendment application will go 

through the NORI and NAPD publication process. 

b. Discussion of the “De minimis” and “Insignificant” Thresholds for Minor NSR 

Flexible Permit Amendments 

The thresholds established by the State as “de minimis” thresholds at 30 TAC 

39.402(a)(5)(B) apply to all minor NSR Flexible Permit amendment applications, except 

those for affected agricultural facilities. The thresholds selected by the State at 30 TAC 

39.402(a)(5)(C), and called “insignificant” thresholds, apply only to minor NSR Flexible 

Permit amendment applications for affected agricultural facilities. 

Within the scope of the Texas Minor NSR program, the “de minimis” and 

“insignificant” thresholds distinguish those minor Flexible Permit amendment applications 

that require full review from those that may not. But, the thresholds do not affect any part of 

the technical review of these minor NSR Flexible Permit amendment applications or the 

requirement to comply with other requirements such as application of required control 

technology, reporting when required to the emissions inventory, and analysis of monitoring 

data. Additionally, being below the “de minimis” or “insignificant” threshold does not 

override any notice or technical requirements for PSD, NNSR or new Minor NSR Flexible 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

49 

Permit applications. 

 In our final rule dated January 6, 2014, approving Texas public participation, we found 

that TCEQ provided an adequate demonstration to show that their selected “de minimis” and 

“insignificant” thresholds for Minor NSR permitting are adequate to meet federal 

requirements for Minor NSR. See 79 FR 551 and EPA-R06-OAR-2010-0612. The State’s 

demonstration is also applicable to the thresholds as they apply to minor amendments to 

existing Flexible Permits. TCEQ also provided supplemental information concerning the 

Flexible Permit holders’ use of these thresholds since they were adopted by the State.2, 3 The 

supplemental data is also included in the docket for this rulemaking. Our analysis of this 

supplemental information demonstrates that before Texas Fiscal Year 2002, flexible permit 

amendments issued to non-agricultural facilities did not go through public notice. Fiscal Year 

2002 represents the time period where TCEQ adopted and implemented the “de minimis” and 

“insignificant” thresholds. Since the time of adoption and implementation of the “de minimis” 

and “insignificant” thresholds, the TCEQ records indicate that 326 amendments to flexible 

permits have been issued. Of the 326 applications for amendments to Flexible Permits, 135 

applications have been required to go through notice due to the application of the thresholds. 

The supplemental information also demonstrates that are no flexible permits for agricultural 

sources subject to THSC 382.020; therefore the “insignificant” thresholds are not available for 

use for any current flexible permit holders. Our analysis of this supplemental information 

leads us to conclude that the application of the “de minimis” and “insignificant” thresholds 

specific to applications for Flexible Permit amendments increases the opportunity for public 

notice and participation in Texas. 

How do the Texas Public Notice Provisions for Applications for New and Amended 

Flexible Permits Address the Concerns Identified in EPA’s November 26, 2008 Proposed 

Limited Approval/Limited Disapproval for Texas Public Participation?

 On November 26, 2008, EPA identified two deficiencies in the Texas public 

participation rules specific to applications for new Flexible Permits and amendments to 

Flexible Permits. See 73 FR 72001, at 72008. Below we reiterate the deficiencies and discuss 

how the revised Texas public participation process for applications for new Flexible Permits 

and amendments to Flexible Permits addresses our concerns. 

 For initial issuance of a flexible permit to establish a minor NSR applicability cap 

or an increase in a flexible permit cap, the rules do not require 30-day notice and 

comment on information submitted by the owner or operator and the agency’s 

                                                           

2

 Email from Janis Hudson, TCEQ to Adina Wiley, EPA titled “Flexible Permit Amendment Applications” dated 

September 11, 2013. 

3

 Email from Janis Hudson, TCEQ to Adina Wiley, EPA, titled “Flexible Permit Amendment Applications – 

Clarification” dated October 23, 2013. 
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Amendments to the New Source Review State Implementation Plan; Flexible Permits 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

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analysis of the effect of the permit on ambient air quality, including the agency’s 

proposed approval or disapproval as required by 40 CFR 51.161. 

The public participation requirements specific to applications for new Flexible 

Permits and amendments to Flexible Permits at 30 TAC 39.402(a)(4) and (a)(5) 

address the deficiency identified on November 26, 2008. All applications for new 

Flexible Permits are required at 30 TAC 39.402(a)(4) to go through public notice 

as specified in Chapter 39; which means that all applications for new Flexible 

Permits must publish the NORI pursuant to 30 TAC 39.418 and the NAPD 

pursuant to 30 TAC 39.419. An application for a new Flexible Permit will 

therefore go through two 30-day comment periods: 1) the application is published 

first using the NORI and the public has 30 days to review and comment, then 2) 

the NAPD is published, providing a second 30-day comment period wherein the 

public can review TCEQ’s analysis and preliminary determination. All 

applications for amendments to Flexible Permits are required at 30 TAC 

39.402(a)(5) to go through public notice as specified in Chapter 39 using the NORI 

and NAPD process if the amendment will exceed the “de minimis” or 

“insignificant” thresholds. 

 Where PSD and NNSR terms and conditions are modified or eliminated when the 

permit is incorporated into a flexible permit, the rules do not require public 

participation consistent with 40 CFR Subparts 51.161 and 51.166(q). 

The TCEQ adopted amendments to 30 TAC Section § 116.711(2)(M)(vii) to 

specify that the flexible permit application must identify any terms, conditions, and 

representations in any Subchapter B permit which will be superseded by or 

incorporated under a flexible permit and provide an analysis of how the conditions 

and control requirements of a Subchapter B permit will be carried forward in the 

proposed flexible permit. This amendment to the Flexible Permit Program was 

submitted as a SIP revision by the TCEQ on October 21, 2013, and will ensure that 

the Flexible Permit Program is for minor NSR actions only and will not 

circumvent the major source requirements. 

 Section 30 TAC § 39.402(a)(4) provides that an application for a new flexible 

permit must go through Chapter 39 public notice. Therefore, where a new flexible 

permit application will supersede or incorporate any term, condition, and/or 

representation of a Subchapter B permit, this information will be available for 

review and comment during the required NORI and NAPD publication for an 

application for a new flexible permit. Similarly, 30 TAC § 39.402(a)(5)(A) – (C) 

requires that an application for an amendment to a flexible permit application must 
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Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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go through Chapter 39 public notice if the amendment is for an air contaminant not 

previously authorized or the amendment exceeds the identified “de minimis” or 

“insignificant” thresholds. The TCEQ Executive Director also has the discretion 

under 30 TAC § 39.402(a)(5)(D) to require notice for an application for a Flexible 

Permit amendment that would not otherwise be required to provide notice. 

4. EPA’s Analysis Specific to the Texas Public Participation Provisions for the 

Flexible Permit Program 

Our analysis supports the finding that TCEQ’s public participation program 

requirements specific to applications for new Flexible Permits and applications for 

amendments to Flexible Permits at 30 TAC § 39.402(a)(4) and (a) satisfies the provisions of 

40 CFR Subparts 51.160(e) and 51.161. Moreover, our analysis also supports the finding that 

the TCEQ revised rules for discretionary public notice for new Flexible Permits and 

applications for amendments to Flexible Permits are approvable, because the provisions 

adequately confine Executive Director discretion by authorizing the use of discretion under 

specified criteria that are consistent with the goals and purposes of the Act to provide an 

adequate opportunity for informed public participation. EPA is proposing to find that the 

submitted Texas public participation regulations identifying the applicant as the legally 

responsible party also meet the requirements to provide opportunity for public comment and 

for information availability at 40 CFR Subpart 51.161, because the NORI and NAPD both 

identify locations where materials, including the draft permit and all technical materials 

supporting the decision will be made available for public review and the required information 

is submitted to EPA. 

Finally, as explained above, this analysis supports the finding in our proposed Federal 

Register that the submitted provisions address all deficiencies specific to public notice for 

Flexible Permits that we previously cited in our November 26, 2008, proposed limited 

approval/limited disapproval of Texas public notice requirements. Accordingly, we propose 

full approval of the Texas public notice provisions at 30 TAC 39.402(a)(4) and (a)(5) for 

applications for new Flexible Permits and applications for amendments to Flexible Permits as 

submitted on July 2, 2010. Additionally, we propose full approval of the public participation 

requirement in the Flexible Permit Program at 30 TAC § 116.740 as initially submitted on 

November 29, 1994; and further revised on July 22, 1998; October 25, 1999; and August 15, 

2013. 

VI. EPA’s Evaluation of the Flexible Permit Program - General Description of the 

Annotation and Evaluation of the Regulations. 

 This Section includes additional information of each rule, including a crosswalk for each rule, with an underlined and strikethrough annotation documenting how 
TECHNICAL SUPPORT DOCUMENT 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

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the rule has changed with each submitted amendment. The evaluation of each 

regulation is organized as follows: 

1. Background. This section includes a chronology of the current SIP and each 

amendment that was submitted to EPA for SIP approval, as well as defines the 

proposed action. 

2. Evaluation Matrix. This section includes a table which sets forth the text of 

each submitted SIP amendment, and an annotation of the changes of each SIP 

amendment. The revised text is annotated as follows: 

 New text is underlined and 

 Deleted text is struck out. 

 Ellipsis (...) indicates an omission of text in the rule that was not 

submitted to the EPA for consideration in the SIP package. 

The right hand column includes any discussion and evaluation. Any extended 

comments are included in either: 

 Section III, following the evaluation matrix, as “additional comments” 

which follows the matrix; or 

 As discussed in the body or the TSD as identified in the right-hand 

column of the Table. 

3. Additional Comments. When necessary, this section includes additional 

comments related to EPA’s evaluation of the provision, including any extended 

comments related to information in the right hand column of the evaluation 

matrix. 

 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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1. Background of 30 TAC 39.402. Applicability of Air Quality Permits and Permit 

Amendments. 

Current SIP-Approved Portions of 30 TAC 39.402:

 Published final rule on January 6, 2014. 

 Approved SIP is as adopted by the TCEQ on June 2, 2010, effective June 24, 

2010. Submitted as a SIP revision on July 2, 2010. 

 Approved SIP includes 30 TAC §§ 39.402(a)(1) – (3) and (a)(6). The approved 

SIP does not include paragraphs 30 TAC § 39.402(a)(4) or (a)(5). 

Revisions considered in this action: 

 A SIP amendment submitted on July 2, 2010; adopted by the TCEQ on June 2, 

2010; effective June 24, 2010. This amendment expands the scope of the 

Chapter 39 Public Notice provisions to include applicability to all new and 

amended Flexible Permit applications under 30 TAC Chapter 116, Subchapter 

G. 

Proposed Action: 

 Approval of 30 TAC §§ 39.402(a)(4) and (a)(5). 

2. Evaluation Matrix. 

30 TAC 39.402. Applicability to Air Quality 

Permits and Permit Amendments. 

As adopted by the TCEQ on June 2, 2010; effective 

June 24, 2010. Submitted as a revision to the Texas 

SIP on July 2, 2010. 

Comments 

4. new air quality flexible permits under Chapter 

116, Subchapter G of this title (relating to Flexible 

Permits);

30 TAC § 39.402(a)(4) is approvable. This section 

establishes applicability of the Chapter 39 public 

participation requirements for applications for new 

Flexible Permits issued under Chapter 116, Subchapter 

G. 

5. air quality permit amendments to flexible permits 

under Chapter 116, Subchapter G of this title 

when the amendment involves:

(A). change in character of emissions or release of 

an air contaminant not previously authorized 

under the permit;

(B). a facility not affected by THSC, §382.020, 

where the total emissions increase from all 

facilities to be authorized under the amended 

permit exceeds public notice de minimis 

levels by being greater than any of the 

30 TAC § 39.402(a)(5) is approvable. This section 

establishes applicability of the Chapter 39 public 

participation requirements for applications for 

amended Flexible Permits issued under Chapter 116, 

Subchapter G. This section provides clear and 

replicable criteria for which applications for 

amendments to Flexible Permits will receive public 

notice. Additionally, the Executive Director has the 

authority to require public notice for any application 

for amendments to Flexible Permits that would not 
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30 TAC Chapter 39 and 30 TAC Chapter 116 

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following levels:

(i). 50 tpy of carbon monoxide (CO);

(ii). ten tpy of sulfur dioxide (SO,);

(iii). 0.6 tons per year (tpy) of lead; or

(iv). five tpy of nitrogen oxides (N0x), 

volatile organic compounds 

(VOC), particulate matter (PM), or 

any other air contaminant except 

carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and 

oxygen;

(C). a facility affected by THSC, §382.020, 

where the total emissions increase from all 

facilities to be authorized under the 

amended permit exceeds significant levels 

for public notice by being greater than any 

of the following levels:

(i). 250 tpy of CO or NOx;

(ii). 25 tpy of VOC, SO, PM, or any 

other air contaminant except 

carbon dioxide, water, nitrogen, 

methane, ethane, hydrogen, and 

oxygen;

(iii). a new major stationary source or 

major modification threshold as 

defined in §116.12 of this title; or 

(iv). a new major stationary source or 

major modification threshold, as 

defined in 40 Code of Federal 

Regulations (CFR), §52.21, under 

the new source review 

requirements of the Federal Clean 

Air Act (FCAA), Part C 

(Prevention of Significant 

Deterioration); or

(D). other amendments when the executive 

director determines that:

(i). there is a reasonable likelihood for 

emissions to impact a nearby 

sensitive receptor;

(ii). there is a reasonable likelihood of 

high nuisance potential from the 

operation of the facilities;

(iii). the application involves a facility 

in the lowest classification under 

Texas Water Code, §5.753 and 

§5.754 and the commission's rules 

in Chapter 60 of this title; or there 

is a reasonable likelihood of 

significant public interest in a 

proposed activity;

automatically go through public notice. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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1. Background of 30 TAC § 116.10. General Definitions.

 Current SIP-Approved Portions of 30 TAC § 116.10:

• Approved August 28, 2007 (72 FR 49198); effective October 29, 2007. 

• Approved SIP is as adopted by TCEQ August 21, 2002, effective September 

4, 2002. 

• Approved SIP does not include paragraphs (1)-(3), (6), (7)(F), (8), (10)-(12), 

and (16). 

Revisions considered in this action:

• A SIP amendment was submitted March 13, 1996; adopted by TNRCC 

February 14, 1996; effective March 7, 1996.1 This submittal includes the 

initial adoption of subsection (F) under the definition of “modification of 

existing facility.” 

• A SIP amendment was submitted July 22, 1998; adopted by TNRCC June 17, 

1998; effective July 8, 1998. This submittal repealed and resubmitted the 

definition as 30 TAC § 116.10(9)(F). 

• A SIP amendment was submitted September 4, 2002; adopted by TNRCC 

August 21, 2002, effective September 4, 2002. This submittal re-designated 30 

TAC § 116.10(9)(F) to 30 TAC § 116.10(11)(F). 

A SIP amendment was submitted on October 5, 2010; adopted by TCEQ 

September 15, 2010. This submittal re-designated 30 TAC § 116.10(11)(F) to 

30 TAC § 116.10(9)(E). 

Proposed Action:

• Approval of the 30 TAC § 116.10. 

2. Evaluation Matrix. 

30 TAC § 116.10 – General Definitions Comments

Existing SIP. Approved August 28, 2007 (72 FR 49198); effective October 29, 2007

Unless specifically defined in the TCAA or in the rules of the commission, the terms used by 

the commission have the meanings y ascribed to them in the field of air pollution control. In 

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

Definitions), the following words and terms, when used in this chapter, shall have the 

following meanings, unless the context clearly indicates otherwise. 

No change to SIPapproved text. 
TECHNICAL SUPPORT DOCUMENT 

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Submitted 7/22/1998

(9) Modification of existing 

facility – Any physical change 

in, or change in the method of

operation of, a facility in a 

manner that increases the amount 

of air contaminants emitted by 

the facility into the atmosphere or

which results in the emission of 

any air contaminant not 

previously emitted. The term

does not include:

Submitted 9/4/2002 

(11) (9) Modification of 

existing facility – Any 

physical change in, or change in 

the method of operation of, a 

facility in a manner that increases

the amount of air contaminants 

emitted by the facility into the 

atmosphere or which results in 

the emission of any air 

contaminant not previously 

emitted. The term does not 

include: 

Submitted 10/5/2010 

(9) (11) Modification of 

existing facility – Any 

physical change in, or 

change in the method of 

operation of, a facility in a 

manner that increases the 

amount of air contaminants 

emitted by the facility into 

the atmosphere or which 

results in the emission of 

any air contaminant not 

previously emitted. The 

term does not include: 

Approval

Introductory 

paragraph to 

definition of 

Modification of 

existing facility was 

approved as § 

116.10(11) on 

11/17/11 (76 FR 

71260). The 2010 

submittal was a 

recodification. 

Submitted 7/22/1998

(F) physical change in, or 

change in the method of 

operation of, a facility where the

change is within the scope of a 

flexible permit; or

Submitted 9/11/2000

(F) physical change in, or 

change in the method of 

operation of, a facility where 

the change is within the scope 

of a flexible permit or multiple 

plant permit; or 

 

Submitted 10/5/2010 

(E) (F) physical change 

in, or change in the 

method of operation of, a 

facility where the change 

is within the scope of a 

flexible permit or 

multiple plant permit; or 

Approval

The rule citation is 

integral to the 

implementation of 

the minor NSR 

flexible permit 

program and does not

circumvent the 

requirements of 

Section 110 of the 

CAA which requires 

regulation of any 

stationary source 

necessary to assure 

NAAQS are 

achieved. EPA is 

excluding or 

“multiple plant 

permit” from this 

approval. See 

discussion which 

follows this table. 

3. Additional Comments 

30 TAC § 116.10(11)(E) – definition of “modification of existing facility” relating to 

a physical change in, or change in the method of operation of, a facility where the 

change is within the scope of a flexible permit or multiple plant permit.

• Subparagraph (E) under this definition excludes as modification a 

change that is within the scope of a Flexible Permit or Multiple Plant 

Permit. 

• This provision is not severable from the provisions relating to Flexible 

Permits which EPA is proposing to propose to approve. 
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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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• Subparagraph (E) under this definition also excluded changes at a 

Multiple Plant Permit. Texas has not submitted its regulations for Multiple 

Plant Permits to EPA for review as a SIP amendment. EPA is not taking 

action on the words “or multiple plant permits” and they are not a part of this 

conditional approval package. 

1 This section was initially submitted March 13, 1996; and was repealed and resubmitted July 22, 1998. 

This annotation only includes the version submitted July 22, 1998. 
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30 TAC Chapter 39 and 30 TAC Chapter 116 

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1. Background on 30 TAC § 116.13. Flexible Permit Definitions.

Current SIP-Approved 30 TAC § 116.13:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted 

October 21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, 

effective July 8, 1998. This was resubmitted October 21, 2013, for definitions 

(1), (2) and (3). 

• A SIP amendment was submitted on October 21, 2013, adopted on 

September 24, 2013, effective on September 26, 2013. The rule amendments 

were adopted by TCEQ on December 14, 2010, effective January 6, 2011, for 

definitions (3) and (5). 

Proposed Action: 

• Approval of the 30 TAC § 116.13 

2. Evaluation Matrix.

30 TAC § 116.13 – Flexible Permit Definitions Comments

Submitted 11/29/94 

§116.13. Flexible Permit 

Definitions.

The following words and 

terms, when used in this 

chapter, shall have the 

following meanings, unless 

the context clearly indicates 

otherwise

 (2) Expected maximum 

capacity – The maximum 

capacity of a facility 

according to its physical and 

operational design and 

planned operation.

Submitted 7/22/1998 

§116.13. Flexible Permit 

Definitions. The following 

words and terms, when used 

in this chapter, shall have the 

following meanings, unless 

the context clearly indicates 

otherwise

 (2) Expected maximum 

capacity – The maximum 

capacity of a facility according 

to its physical and operational 

design and planned operation.

Resubmitted 10/21/2013 

§116.13. Flexible Permit 

Definitions.

The following words and 

terms, when used in this 

chapter, shall have the 

following meanings, unless 

the context clearly indicates 

otherwise 

(2) Expected maximum 

capacity – The maximum 

capacity of a facility according 

to its physical and operational 

design and planned operation. 

 

Approval

The flexible permit 

rule definitions are 

integral to the 

implementation of the 

minor NSR flexible 

permit program and 

do not circumvent the 

requirements of § 

110 of the CAA 

which requires 

regulation of any 

stationary source 

necessary to assure 

NAAQS are achieved.
TECHNICAL SUPPORT DOCUMENT 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Submitted 11/29/94 

§116.13. Flexible Permit 

Definitions.

 (1) Emission cap – 

Emission limit for a specific 

air contaminant adjusted by 

an Insignificant Emission 

Factor from all sources that 

are included in a flexible 

permit.

 (3) Individual emission 

limitation – Emission limit for 

a specific air contaminant not 

covered by an emission cap for

an individual facility adjusted 

by an Insignificant Emissions 

Factor.

Submitted 7/22/1998 

§116.13. Flexible Permit 

Definitions.

 (1) Emission cap – Emission 

limit for a specific air 

contaminant based on not 

“upon” total emissions of

that pollutant adjusted by an 

insignificant emissions factor 

for from all facilities that are 

all sources included in a 

flexible permit.

 (3) Individual emission 

limitation – Emission limit for 

a specific air contaminant not 

covered by an emission cap for 

an individual facility adjusted 

by an insignificant emissions 

factor.

Adopted 12/14/10 and 

Submitted 10/21/2013 

§116.13. Flexible Permit 

Definitions.

 (3) Emission cap – 

Emission limit for a specific 

air contaminant based upon 

total emissions of that 

pollutant adjusted by an

insignificant emissions factor

for from all facilities that are 

all sources included in a 

flexible permit.

 (5) Individual emission 

limitation – Emission limit 

for a specific air contaminant 

not covered by an emission cap 

for an individual facility 

adjusted by an insignificant

emissions factor.

 

Approval

The flexible permit 

rule definitions are 

integral to the 

implementation of the 

minor NSR flexible 

permit program and 

do not circumvent the 

requirements of § 

110(a) of the CAA 

which requires 

regulation of any 

stationary source 

necessary to assure 

NAAQS are achieved.

3. Additional Comments 

 30 TAC § 116.13 – Flexible Permit definitions.

The definitions in 30 TAC § 116.13 implement, the requirements relating to 

Flexible Permits which EPA is proposing to approve. TCEQ removed 

references to insignificant emission factor in the definitions in the October 

21, 2013, submittal which is consistent with Federal rules. Accordingly, EPA 

proposes to approve 30 TAC § 116.13. 

 
TECHNICAL SUPPORT DOCUMENT 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

60 

1. Background on 30 TAC § 116.110(a)(3). Applicability.

Current SIP-Approved 30 § TAC 116.110:

• Approved November 14, 2003 (68 FR 64548); effective December 15, 2003. 

• Approved SIP is as adopted by TNRCC August 8, 2000, effective September 

10, 2000. 

• The approved SIP does not include paragraphs (a)(3) and (a)(5), 

and subsection (c). Paragraph (a)(3) relates to Flexible Permits and is 

addressed in this action. 

Revisions considered in this action:

• A SIP was submitted on November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, 

effective July 8, 1998. This was resubmitted October 21, 2013. 

Proposed Action:

• Approval of the 30 TAC § 116.110(a)(3).

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.110 – Applicability

Subsection (a) and paragraph (a)(3)

Comments

Existing SIP – Approved 11/14/2003

(a) Permit to construct. Before any actual work is begun on the facility, any 

person who plans to construct any new facility or to engage in the 

modification of any existing facility which may emit air contaminants into the 

air of this state shall either: 

No change to introductory paragraph 

(a) regarding Applicability. 

Submitted 7/22/1998; resubmitted 10/21/2013

(3) satisfy the conditions of a flexible permit under the requirements of 

Subchapter G of this

Chapter (relating to Flexible Permits);

Approval

Applicability provisions must also 

apply to the minor NSR flexible permit 

program and is integral to the 

implementation of the program. This 

citation does not circumvent the 

requirements of § 110 of the CAA 

which requires regulation of any 

stationary source necessary to assure 

NAAQS are achieved. 
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Docket No. EPA-R06-OAR-2013-0542 

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3. Additional Comments 

 30 TAC § 116.110(a)(3) cross-references to and is not severable from the 

provisions of Chapter 116, Subchapter G – Flexible Permits. EPA proposes to 

approve subparagraph (a)(3).
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1. Background on 30 TAC § 116.710. Applicability

Current SIP-Approved 30 TAC § 116.710:

This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted October 

21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, effective 

July 8, 1998. This was resubmitted October 21, 2013. The submittal included the 

following amendments to 30 TAC § 116.710: 

 Amendment to subsection (a); 

 Removal of subsection (b) & redesignation of subsections (c)-(e) to 

subsections (b)-(d); and 

 Amendment to subsections (b)-(d). 

• A SIP amendment was submitted September 11, 2000, SIP Submittal. 

Amendment adopted August 9, 2000, effective September 4, 2000. This 

submittal included an amendments to 30 TAC § 116.710(b). This was 

resubmitted October 21, 2013. 

Proposed Action:

• Approval of the 30 TAC § 116.710. 

2. Evaluation Matrix 

Annotation and Evaluation of 30 TAC § 116.710 – Applicability Comments

Submitted 11/29/1994; resubmitted 10/21/2013

(a) Flexible Permit. A person may obtain a

flexible permit which allows for physical 

or operational changes as provided by this

subchapter as an alternative to obtaining a new

source review permit under §116.110 of this

title (relating to Applicability), or in lieu of 

amending an existing permit under §116.116 of 

this title (relating to Amendments and

Alterations). A person may obtain a flexible

permit pursuant to §116.711 of this title

(relating to Flexible Permit Application) for a

facility, group of facilities, or account before

any actual work is begun, provided however:

Amendment submitted 7/22/1998; resubmitted 

10/21/2013

(a) Flexible Permit. A person may obtain a 

flexible permit which allows for physical or 

operational changes as provided by this 

subchapter as an alternative to obtaining a new 

source review permit under §116.110 of this title 

(relating to Applicability), or in lieu of amending 

an existing permit under §116.116 of this title 

(relating to Amendments and Alterations). A 

person may obtain a flexible permit under

pursuant to §116.711 of this title (relating to 

Flexible Permit Application) for a facility, group 

of facilities, or account before any actual work is 

begun, provided however:

Approval.

Meets 40 CFR 

Subpart 51.160(b) 

for establishing 

applicability criteria 

for a minor NSR 

review permit 

program.
TECHNICAL SUPPORT DOCUMENT 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Submitted 11/29/1994; resubmitted 10/21/2013

(1) only one flexible permit may be issued for an account site;

(2) modifications to existing facilities covered by the flexible permit may be handled through the

amendments of an existing flexible permit;

 (3) permitting of a new facility may be handled through the amendment of a flexible permit; and

 (4) a flexible permit may not cover sources at more than one account site.

Approval

Meets 40 CFR 

Subpart 

51.160(b) for 

establishing 

applicability 

criteria for a 

minor NSR 

review permit 

program. 

Submitted 11/29/1994; resubmitted 

10/21/2013

(b) Operations certification. Any person 

who obtains a flexible permit under this 

chapter shall comply with §116.110(c) of 

this title.

Amendment submitted

7/22/1998; resubmitted 10/21/2013

(b) [Removed]

Subparagraph (b) was 

repealed from 30 

TAC § 116.710.

Submitted 11/29/1994; 

resubmitted 10/21/2013

(c) Change in ownership.

The new owner of a facility,

group of facilities, or account

shall comply with §116.110(c)

of this title, provided however,

that all facilities covered by a

flexible permit must change

ownership at the same time and 

to the same persons, or both the 

new owner and existing permit 

holder must obtain a permit 

alteration allocating the 

emission caps or individual 

emission limitation prior to 

transfer of the permit by the 

Texas Natural Resource

Conservation Commission

(TNRCC). After the sale of the 

facility, or facilities, but prior to 

the transfer of a permit requiring 

a permit alteration, the original 

permit holder remains 

responsible for ensuring 

compliance with the existing 

flexible permit and all rules and 

regulations of the TNRCC.

Submitted 7/22/1998; 

resubmitted 10/21/2013

(b) (c) Change in 

ownership. The new owner 

of a facility, group of 

facilities, or account shall 

comply with §116.110(c) 

of this title, provided 

however, that all facilities 

covered by a flexible 

permit must change 

ownership at the same 

time and to the same 

persons, or both the new 

owner and existing permit 

holder must obtain a 

permit alteration allocating 

the emission caps or 

individual emission 

limitation prior to transfer 

of the permit by the 

commission Texas Natural

Resource Conservation

Commission (TNRCC). 

After the sale of the 

facility, or facilities, but 

prior to the transfer of a 

permit requiring a permit 

alteration, the original 

permit holder remains 

responsible for ensuring 

compliance with the 

existing flexible permit 

and all rules and 

regulations of the 

commission TNRCC.

Submitted 9/11/2000; resubmitted 

10/21/2013

(b) Change in ownership. The new 

owner of a facility, group of 

facilities, or account shall comply 

with §116.110(d) § 116.110(c) of 

this title, provided however, that all 

facilities covered by a flexible 

permit must change ownership at 

the same time and to the same 

persons, or both the new owner and 

existing permit holder must obtain 

a permit alteration allocating the 

emission caps or individual 

emission limitation prior to transfer 

of the permit by the commission. 

After the sale of the facility, or 

facilities, but prior to the transfer of 

a permit requiring a permit 

alteration, the original permit 

holder remains responsible for 

ensuring compliance with the 

existing flexible permit and all 

rules and regulations of the 

commission.

Approval

Meets 40 CFR 

Subpart 51.160(b) 

for establishing 

applicability 

criteria for a 

minor NSR 

review permit 

program. 

Submitted 11/29/1994; resubmitted 10/21/2013

(e) Responsibility for flexible permit application. The owner 

of the facility, group of facilities, or account who is authorized 

to act for the owner is responsible complying with this section, 

except as provided in subsection (c) of this section.

Submitted 7/22/1998; resubmitted 

10/21/2013

(d) (e) Responsibility for flexible 

permit application. The owner of 

the facility, group of facilities, or

Approval.

Recodification of 

original submittal. 

Meets 40 CFR 

Subpart 51.160(a) 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

64 

account who is authorized to act for 

the owner is responsible complying 

with this section, except as 

provided in subsection (b) of this 

section.

for establishing 

applicability criteria 

for a minor NSR 

review permit 

program.

Submitted 11/29/1994; resubmitted 10/21/2013

(d) Submittal under seal of registered professional engineer. 

All applications for a flexible permit of flexible permit 

amendment shall comply with §116.110(d) of this title.

Submitted 7/22/1998; resubmitted 

10/21/2013

(c) (d) Submittal under seal of 

Texas licensed registered

professional engineer. All 

applications for a flexible permit of 

flexible permit amendment shall 

comply with §116.110(e)

§116.110(d) of this title.

Approval.

Meets 40 CFR 

Subpart 51.160 for 

establishing 

applicability 

criteria for a minor 

NSR review 

permit program. 

3. Additional Comments 

 30 TAC § 116.710(c)-(e). Comparable to 30 TAC § 116.110(d)-(f) in the 

approved SIP. These provisions in 30 TAC § 116.710(c)-(e) are not severable 

from other elements in the Texas Flexible Permits Program which EPA is 

proposing to approve. EPA accordingly proposes Approval. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

65 

1. Background on 30 TAC § 116.711. Flexible Permit Application.

Current SIP-Approved 30 TAC § 116.711:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted 

October 21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, 

effective July 8, 1998. This was resubmitted October 21, 2013. This 

submittal included the following amendments to 30 TAC § 116.711: 

 Amendment to introductory paragraph and sections (1)-(5); 

 Addition of new sections (6) & (11); 

 Re-designation of existing sections (6)-(9) to sections (7)-(10); and 

existing sections (10)-(11) to sections (12)-(13); and 

 Amendment to the re-designated sections (8)-(10). 

• A SIP amendment was submitted April 12, 2001, adopted by TNRCC March 

7, 2001, effective March 29, 2001. This submittal included the following 

amendments to 30 TAC § 116.711: 

 Added new paragraph (12); and 

 Re-designated existing paragraphs (12)-13) to paragraphs (13)-14). 

• A SIP amendment was submitted September 4, 2002; as adopted by TNRCC 

August 21, 2002, effective September 12, 2002. This was resubmitted 

October 21, 2013. This submittal includes amendments to 30 TAC § 

116.711(8)-(11). 

• A SIP amendment was submitted October 21, 2013, as adopted by TCEQ on 

December 14, 2010, effective January 6, 2011. This amendment revised §

116.711(2)(M) [introductory text], and paragraphs (iv) and (vii). It was 

submitted in the package as § 116.711(13)(D) and § 116.711(13)(E)(vii). This 

amendment withdrew § 116.711(3) (last sentence only) and (11), as amended 

August 21, 2002, and all earlier versions. 

Proposed Action:

• Approval of the addition of 30 TAC § 116.711. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

66 

2. Evaluation Matrix 

Annotation and Evaluation of 30 TAC § 116.711 – Flexible Permit Application Comments

Submitted 11/29/1994; 

resubmitted 10/21/2013

Any application for a new flexible 

permit or flexible permit 

amendment must include a

completed Form PI-1 General 

Application. The Form PI-1 must 

be signed by an authorized

representative of the applicant. 

The Form PI-1 specifies 

additional support information 

which must be provided before 

the application is deemed 

complete. In order to be granted a

flexible permit or flexible permit 

amendment, the owner or operator 

of the proposed facility shall 

submit to the Texas Natural 

Resource Conservation 

Commission which demonstrates

that the following are met.

Submitted 7/22/1998; resubmitted 10/21/2013

Any application for a new flexible permit or flexible 

permit amendment must include a completed Form PI-1 

General Application. The Form PI-1 must be signed by 

an authorized representative of the applicant. The Form 

PI-1 specifies additional support information which must 

be provided before the application is deemed complete. 

In order to be granted a flexible permit or flexible permit 

amendment, the owner or operator of the proposed 

facility shall submit to the commission Texas Natural

Resource Conservation Commission which demonstrates 

that the following are met.

Approval.

Meets 40 CFR Subpart 

51.160(c) for establishing 

permit application 

requirements for a minor 

NSR review permit 

program. 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(1) Protection of public health 

and welfare. The emissions from 

the proposed facility, group of 

facilities, or account as 

determined pursuant to §116.716 

of this title (relating to Emission

Caps and Individual Emission 

Limitations) will comply with all 

rules and regulations of the

TNRCC and with the intent of the 

Texas Clean Air Act (TCAA), 

including protection of health and 

physical property of the people. 

In considering the issuance of a 

flexible permit for the 

construction or modification of 

any facility, group of facilities, or 

account within 3,000 feet or less 

of an elementary, junior 

high/middle, or senior high school 

the TNRCC shall consider any 

possible adverse short-term or 

long-term side effects that an air 

contaminant or nuisance odor 

from the facility, group of 

facilities, or account may have on 

the individuals attending these 

school facilities.

Submitted 7/22/1998; resubmitted 10/21/2013

(1) Protection of public health and welfare. The 

emissions from the proposed facility, group of facilities, 

or account as determined under pursuant to §116.716 of 

this title (relating to Emission Caps and Individual 

Emission Limitations) will comply with all rules and 

regulations of the commission TNRCC and with the 

intent of the TCAA Texas Clean Air Act (TCAA), 

including protection of health and physical property of 

the people. In considering the issuance of a flexible 

permit for the construction or modification of any 

facility, group of facilities, or account within 3,000 feet 

or less of an elementary, junior high/middle, or senior 

high school the commission TNRCC shall consider any 

possible adverse short-term or long-term side effects that 

an air contaminant or nuisance odor from the facility, 

group of facilities, or account may have on the 

individuals attending these school facilities.

Approval.

Meets 40 CFR Subpart 

51.160(c)(1) for 

establishing permit 

application requirements 

to submit emission 

information for a minor 

NSR review permit 

program. 

Submitted 11/29/1994; 

resubmitted 10/21/2013

Submitted 7/22/1998; resubmitted 10/21/2013 (2) 

Measurement of emissions. The proposed facility, group 

Approval.

Meets 40 CFR Subpart 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

67 

(2)_Measurement of emissions. 

The proposed facility, group of 

facilities, or account will have 

provisions for measuring the 

emissions as determined by the 

executive director. This may 

include installation of sampling 

ports on exhaust stacks and

construction of sampling 

platforms in accordance with 

guidelines in the “Compliance

Sampling.”

of facilities, or account will have provisions for 

measuring the emissions as determined by the executive 

director. This may include installation of sampling ports 

on exhaust stacks and construction of sampling platforms 

in accordance with guidelines in the “Texas Natural

Resource Conservation Commission Sampling

Procedures Manual.” “Compliance Sampling.”

51.160(c) for establishing 

permit application 

requirements to submit 

emission information for a 

minor NSR review permit 

program. 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(3) Best available control 

technology (BACT). The 

proposed facility, group of

facilities, or account will utilize 

BACT, with consideration given 

to the technical practicability 

and economic reasonableness of

reducing or eliminating the 

emissions from the propose 

facility, group of facilities, or 

account basis. Control technology 

beyond BACT may be used on 

certain facilities to provide the

emission reductions necessary to 

comply with this requirement on a 

facility, group of facilities, or 

account basis provided however,

that the existing level of control 

may not be lessened for any 

facility. For new facilities the use 

of BACT shall be demonstrated 

for the individual facility 

source.

Submitted 7/22/1998; 

resubmitted 10/21/2013

(3) Best available control 

technology (BACT). The 

proposed facility, group of 

facilities, or account will 

utilize BACT, with 

consideration given to the 

technical practicability 

and economic 

reasonableness of reducing 

or eliminating the 

emissions from the propose 

facility, group of facilities, 

or account basis. Control 

technology beyond BACT 

may be used on certain 

facilities to provide the 

emission reductions 

necessary to comply with 

this requirement on a 

facility, group of facilities, 

or account basis provided 

however, that the existing 

level of control may 

not be lessened for any 

facility. For new facilities 

and proposed affected

sources

(as defined in §116.15(1) 

of this title (relating to 

Section 112(g) 

Definitions)) subject to 

Subchapter C of this 

chapter (relating to

Hazardous Air Pollutants: 

Regulations Governing 

Constructed or 

Reconstructed 

Major Sources (FCAA), 

§112(g), 40 CFR Part 63)),

the use of BACT shall be 

demonstrated for the 

individual facility or 

affected source. 

Withdrawal submitted 

10/21/2013 

(3) For new facilities and

proposed affected sources

(as defined in §116.15(1)

of this title (relating to

§112(g) Definitions))

subject to Subchapter C of

this chapter (relating to 

Hazardous Air Pollutants: 

Regulations Governing

Constructed or

Reconstructed Major 

Sources (FCAA), §112(g),

40 CFR Part 63)), the use

of BACT shall be

demonstrated for the 

individual facility or 

affected source.

Approval.

Meets 40 CFR Subpart 

51.160(d) for establishing 

permit application 

requirements to submit 

emission information for 

a minor NSR review 

permit program. Does 

not include last sentence, 

“For new facilities and 

proposed affected sources 

(as defined in §116.15(1) 

of this title (relating to 

§112(g) Definitions)) 

subject to Subchapter C of 

this chapter (relating to

Hazardous Air Pollutants: 

Regulations Governing 

Constructed or 

Reconstructed Major

Sources (FCAA), 

§112(g), 40 CFR Part 

63)), the use of BACT 

shall be demonstrated for 

the individual facility or 

affected source.”, which 

was withdrawn. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

68 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(4) Federal New Source 

Performance Standards (NSPS). 

The emissions from each affected 

facility as defined in 40 Code of 

Federal Regulations (CFR), Part 

60 will meet at least the 

requirements of any applicable 

NSPS as listed under Title 40 

CFR Part 60, promulgated by the 

United States Environmental 

Protection Agency (EPA) under

authority granted under the 

FCAA, §111, as amended.

Submitted 7/22/1998; resubmitted 10/21/2013

(4) Federal New Source Performance 

Standards (NSPS). The emissions from each 

affected facility as defined in 40 Code of Federal 

Regulations (CFR), Part 60 will meet at least the 

requirements of any applicable NSPS as listed under 

Title 40 CFR Part 60, promulgated by the EPA United

States Environmental Protection Agency (EPA) under 

authority granted under the FCAA, §111, as amended.

Approval.

Meets the requirements of 

FCAA § 111, as amended.

Submitted 11/29/1994; 

resubmitted 10/21/2013

(5) National Emission Standards 

for hazardous Air Pollutants 

(NESHAPS) and Maximum 

Achievable Control Technology

(MACT). The emissions from 

each facility as defined in 40 CFR 

Part 61 will meet at least the

requirements of any applicable 

NESHAPS, as listed under 40 

CFR Part 61, or any MACT

standard promulgated by EPA 

pursuant to authority granted 

under the FCAA, §112, as

amended.

Submitted 7/22/1998; resubmitted 10/21/2013

(5) National Emission Standards for hazardous Air 

Pollutants (NESHAPS) and Maximum Achievable

Control Technology (MACT). The emissions from each 

facility as defined in 40 CFR Part 61 will meet at least 

the requirements of any applicable NESHAPS, as listed 

under 40 CFR Part 61, or any MACT standard

promulgated by EPA under pursuant to authority granted 

under the FCAA, §112, as amended.

Approval.

Meets the requirements of 

FCAA § 112, as amended.

Submitted 7/22/1998; resubmitted 10/21/2013

(6) NESHAPS for source categories. The emissions from each affected facility shall meet at

least the requirements of any applicable MACT standard, as listed under 40 CFR Part 63,

promulgated by EPA under FCAA, §112, or as listed under Chapter 113.

Approval.

Meets the requirements of 

FCAA §§ 112 or 113.

Submitted 11/29/1994; resubmitted 

10/21/2013

(6) Performance demonstration. The 

proposed facility, group of facilities, or 

account will achieve the performance 

specified in the flexible permit

application. The applicant may be 

required to submit additional engineering

data after a flexible permit has been 

issued in order to demonstrate further that

the proposed facility, group of facilities, 

or account will achieve the performance 

specified in the flexible permit. In 

addition, initial compliance testing with 

ongoing compliance determined through 

engineering calculations based on 

measured process variables or predictive 

monitoring, stack monitoring, or stack 

testing may be required.

Submitted

7/22/1998; resubmitted 10/21/2013

(7) (6) Performance demonstration. The 

proposed facility, group of facilities, or account 

will achieve the performance specified in the 

flexible permit application. The applicant may be 

required to submit additional engineering data 

after a flexible permit has been issued in order to 

demonstrate further that the proposed facility, 

group of facilities, or account will achieve the 

performance specified in the flexible permit. In 

addition, initial compliance testing with ongoing 

compliance determined through engineering 

calculations based on measured process variables 

or predictive monitoring, stack monitoring, or 

stack testing may be required.

Approval.

Meets 40 CFR Subparts 

51.160(a) and (b) for 

determination of NAAQS 

violations for a minor NSR 

review permit program.

Submitted 11/29/1994; resubmitted 

10/21/2013

(7) Nonattainment review. If the 

proposed facility, group of facilities, or 

account is located in a nonattainment area 

each facility shall comply with all 

Submitted 7/22/1998; resubmitted 10/21/2013

(8) (7) Nonattainment review. If the proposed 

facility, group of facilities, or account is located in 

a nonattainment area each facility shall comply 

with all applicable requirements under the 

undesignated head concerning nonattainment 

Approval.

Meets 40 CFR Subparts 

51.160(a) and (b) for 

determination of NAAQS 

violations for a minor NSR 

review permit program.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

69 

applicable requirements under the 

undesignated head concerning 

nonattainment review in Subchapter B of 

this chapter.

review in Subchapter B of this chapter (relating to 

New Source Review Permits).

Submitted 11/29/1994; resubmitted 

10/21/2013

(8) Prevention of Significant 

Deterioration (PSD) review. If the 

proposed facility, group of facilities, or 

account is located in an attainment area 

each facility shall comply with all 

applicable requirements under the 

undesignated head concerning PSD 

review in Subchapter B of this chapter.

Submitted

7/22/1998; resubmitted 10/21/2013

(9) (8)

Approval.

Meets 40 CFR Subparts 

51.160(a) and (b) for 

determination of NAAQS 

violations for a minor NSR 

review permit program.

Submitted 11/29/1994; 

resubmitted 10/21/2013

(9) Air dispersion modeling or 

ambient monitoring.

Computerized air dispersion 

modeling and/or ambient

monitoring may be required by 

the TNRCC Permits program 

to determine the air quality 

impacts from the facility, 

group of facilities, or account.

Submitted 7/22/1998; 

resubmitted 10/21/2013

(10) (9) Air dispersion 

modeling or ambient 

monitoring. Computerized 

air dispersion modeling 

and/or ambient monitoring 

may be required by the 

commission’s New Source 

Review Permits Division

TNRCC Permits program 

to determine the air quality 

impacts from the facility, 

group of facilities, or 

account.

Submitted 9/4/2002; 

resubmitted 10/21/2013

(10) Air dispersion 

modeling or ambient 

monitoring. Computerized 

air dispersion modeling 

and/or ambient monitoring 

may be required by the 

commission’s New Source 

Review Permits Division to 

determine the air quality 

impacts from the facility, 

group of facilities, or 

account. In conducting a 

review of a permit 

application for a 

shipbuilding or ship

repair operation, the 

commission will not require

and may not consider air 

dispersion modeling results 

predicting ambient 

concentrations of noncriteria air contaminants 

over coastal waters of the 

state. The commission shall 

determine compliance with 

non-criteria air contaminant

standards and guidelines at 

land-based off- property 

locations.

Approval.

Meets 40 CFR Subparts 

51.160(f) for determination 

of NAAQS violations.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

70 

Rev submitted 7/22/1998; resubmitted 

10/21/2013

(11) Federal standards of review for

constructed and reconstructed major 

sources of hazardous air pollutants. If a 

proposed source is an affected source (as 

defined in §116.15(1) of this title 

(relating to Section 112(g)

Definitions)), it shall comply with all 

applicable requirements under 

Subchapter C of this chapter (relating to 

Hazardous Air Pollutants: Regulations 

Governing Constructed or Reconstructed 

Major Sources (FCAA, §112(g),

40 CFR Part 63)).

Submitted 9/4/2002; 

(11) Federal standards of review for 

constructed and reconstructed major sources 

of hazardous air pollutants. If a proposed 

source is an affected source (as defined in 

§116.15(1) of this title (relating to Section

112(g) Definitions)), it shall comply with all 

applicable requirements under Subchapter C 

of this chapter (relating to Hazardous Air

Pollutants: Regulations Governing

Constructed or Reconstructed Major Sources

(FCAA, §112(g), 40 CFR Part 63)). 

Withdrawn 

10/21/2013 

(11) Federal standards of

review for

constructed and reconstructed

major sources of hazardous air

pollutants. If a proposed

source is an affected source

(as defined in §116.15(1) of 

this title it shall comply with

all applicable requirements 

under Subchapter C of this

chapter.

Rev submitted 4/12/2001; resubmitted 10/21/2013 

(12) Mass cap and trade allocations. If subject to Chapter 101, Subchapter H, 

Division 3 of this title (relating to Mass Cap and Trade Program) the proposed 

facility, facilities, or account must obtain allocations to operate.

Approval.

Meets 40 CFR Subpart 

51.160(c) for establishing 

permit application 

requirements for a minor 

NSR review permit 

program.

Submitted 11/29/1994; resubmitted 

10/21/2013

(10) Application Content. In addition 

to any other requirements of this 

chapter, the applicant shall:

Submitted

7/22/1998; 

resubmitted 

10/21/2013

(12) (10) 

Application 

Content. In 

addition to any 

other requirements 

of this chapter, the 

applicant shall:

Submitted

4/12/2001; resubmitted 

10/21/2013

(13) (12) Application 

Content. In addition to 

any other requirements 

of this chapter, the 

applicant shall:

Approval.

Meets 40 CFR Subpart 

51.160(c) for establishing 

permit application 

requirements for a minor 

NSR review permit 

program.

Submitted 11/29/1994; resubmitted 10/21/2013

(A) identify each air contaminant for which the emission cap is desired;

(B) identify each facility to be included in the flexible permit;(C) identify each source 

of emissions to be included in the flexible permit and for each source of emissions 

identify the Emission Point Number (EPN) and the air contaminants emitted;

(D) for each emission cap, identify associated EPNs and provide emission rate 

calculations based upon expected maximum capacity and the proposed control 

technology;

(E) for each individual emission limitation, identify the EPN and provide emission rate

calculations based on the expected maximum production capacity.

Approval.

Meets 40 CFR Subpart 

51.160(c) for establishing 

permit application 

requirements for a minor 

NSR review permit 

program.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

71 

Submitted 10/21/2013 

(2)(M) Application content. In addition to other requirements of this chapter, the applicant 

shall: 

(iv) for each emission cap, identify all associated EPNs and facilities (including description, 

common name, and facility identification number) and provide emission rate calculations based 

on the expected maximum capacity and the proposed control technology; 

(vii) if the flexible permit application includes facilities currently authorized by a permit issued 

under Subchapter B of this chapter (relating to New Source Review Permits), the applicant 

shall identify any terms, conditions, and representations in the Subchapter B permit or permits 

which will be superceded by or incorporated into the flexible permit. The applicant shall 

include an analysis of how the conditions and control requirements of Subchapter B permits 

will be carried forward in the proposed flexible permit. 

Approval.

Meets 40 CFR Subpart 

51.160(c)(2) for 

establishing permit 

application 

requirements to submit 

emission information 

for a minor NSR 

permit.

Submitted 11/29/1994; 

resubmitted 10/21/2013

(11) Proposed control 

technology and compliance 

demonstration. The 

applicant shall specify the 

control technology proposed 

for each unit to meet the 

emission cap and 

demonstrate compliance with 

all emission caps at expected 

maximum production 

capacity.

Submitted

7/22/1998; resubmitted 

10/21/2013

(13) (11) Proposed control 

technology and compliance 

demonstration. The 

applicant shall specify the 

control technology 

proposed for each unit to 

meet the emission cap and 

demonstrate compliance 

with all emission caps at 

expected maximum 

production capacity.

Submitted

4/12/2001; resubmitted 

10/21/2013

(14) (13) Proposed control 

technology and compliance 

demonstration. The applicant 

shall specify the control

technology proposed for each 

unit to meet the emission cap 

and demonstrate compliance 

with all emission caps at 

expected maximum 

production capacity.

Approval.

Meets 40 CFR 

Subpart 51.160(c) for 

establishing permit 

application 

requirements for a 

minor NSR review 

permit program.

3. Additional Comments 

 30 TAC § 116.711(1)-(11). These provisions are similar to 30 TAC §

116.111(a)(2)(A)-(L) in the approved SIP. These provisions are 

inseverable from other Approval provisions related to the Flexible Permits 

program. 

 30 TAC § 116.711(2)(M). [introductory text], and paragraphs (iv) and (vii) 

was submitted in the package as § 116.711(13)(D) which requires permit 

applicants to provide a description of EPNs included in emission cap and new 

§ 116.711(13)(E)(vii) which ensures PSD terms and conditions are retained 

in the flexible permit. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

72 

1. Background on 30 TAC § 116.714. Application Review Schedule.

Current SIP-Approved 30 TAC § 116.714:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by 

TNRCC November 16, 1994, effective December 8, 1994. This was 

resubmitted October 21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, 

effective July 8, 1998. This was resubmitted October 21, 2013. 

• A SIP amendment was submitted April 12, 2001, adopted by TNRCC March 

7, 2001, effective March 29, 2001. This was resubmitted October 21, 2013. 

• A SIP amendment was submitted September 4, 2002, SIP, adopted by 

TNRCC August 21, 2002, effective September 12, 2002. This was 

resubmitted October 21, 2013. This submittal includes amendments to 30 

TAC § 116.711(8)-(11). 

Proposed Action:

• Approval of the 30 TAC § 116.714.

2. Evaluation Matrix

Annotation and Evaluation of 30 TAC § 116.714 – Application Review Schedule Comments

Submitted 11/29/1994; resubmitted 10/21/2013

The flexible permit application will be reviewed 

by the Texas Natural Resource Conservation 

Commission in accordance with §116.114 of this 

title (relating to Application Review Schedule).

Submitted 7/22/1998

The flexible permit application will be 

reviewed by the commission Texas Natural 

Resource Conservation Commission in 

accordance with §116.114 of this title (relating 

to Application Review Schedule). 

Approval.

Meets 40 CFR 

Subpart 51.160(c) 

for establishing 

permit application 

requirements for a 

minor NSR review 

permit program. 

3. Additional Comments 

 30 TAC § 116.714. This provision is comparable to 30 TAC § 116.114 of 

the current SIP. 
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1. Background on 30 TAC § 116.715. General and Special Conditions.

Current SIP-Approved 30 TAC § 116.715:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by 

TNRCC November 16, 1994, effective December 8, 1994. This was 

resubmitted October 21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, 

effective July 8, 1998. This was resubmitted October 21, 2013. 

 Amendment to subsection (a); and 

 Amendments to paragraphs (c)(3)-(6) and (c)(9). 

• A SIP amendment submitted September 11, 2000, adopted August 9, 

2000, effective September 4, 2000. This was resubmitted October 21, 2013. 

This submittal includes an amendment subsection (a). 

• A SIP amendment submitted April 12, 2001, adopted March 7, 2001, 

effective March 29, 2001. This was resubmitted October 21, 2013. This 

submittal includes a amendment to paragraph (c)(3). 

• A SIP amendment submitted September 4, 2002, adopted August 21, 

2002, effective September 12, 2002. This was resubmitted October 21, 2013. 

This submittal includes an amendment to paragraph (c)(9). 

• A SIP amendment submitted September 25, 2003, SIP Submittal. 

Submittal of amendments adopted August 20, 2003, effective September 14, 

2003. This was resubmitted October 21, 2013. This submittal includes 

amendments to paragraphs (c)(1) & (c)(9). 
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• A SIP amendment was submitted October 21, 2013, as adopted by TCEQ on 

December 14, 2010, effective January 6, 2011. This submittal subsections 

(c)(5)(A) & (B) – monitoring requirements must be specified in permits for 

compliance with emission caps. It revised § 116.715(c)(6)(A)(i) & (ii) – 

recordkeeping for demonstrating emission cap and individual emission 

limitation calculations. It revised § 116.715(d)(1) – monitoring must 

demonstrate compliance based on sound science. It withdrew § 116.715(a), 

only with regard to the text “or Subchapter C of this chapter (relating to 

Hazardous Air Pollutants: Regulations Governing Constructed or 

Reconstructed Major Sources (FCAA Section 112(g), 40 CFR Part 63))”, as 

amended August 21, 2002, and all earlier versions. It withdrew § 116.715(c)(6) 

as amended August 20, 2003, and all earlier versions. 

Proposed Action:

• Approval of the 30 TAC § 116.715. 

2. Evaluation Matrix. 

Annotation and Evaluation of 30 TAC § 116.715 – General and Special Conditions Comments 

Submitted 11/29/1994; resubmitted 10/21/2013

(a)Flexible permits may 

contain general and specific conditions. The holders of 

flexible permits shall comply with any and all such conditions. 

Upon a specific finding by the Executive Director that an 

increase of a particular air contaminant could result in a

significant impact on the air environment, or could cause the 

facility, group of facilities, of account to become subject to 

review under the undesignated headings of Subchapter B of 

this chapter (relating to Nonattainment Review and 

Prevention of Significant Deterioration Review), the permit 

may include a special condition which requires the permittee 

to obtain written approval from the Executive Director before 

constructing a facility under a standard exemption or standard

permit.

Submitted 7/22/1998; resubmitted 

10/21/2013

Flexible permits may contain general 

and specific conditions. The holders of 

flexible permits shall comply with any 

and all such conditions. Upon a specific 

finding by the executive director

Executive Director that an increase of a 

particular air contaminant could result 

in a significant impact on the air 

environment, or could cause the facility, 

group of facilities, of account to become 

subject to review under §116.150 and 

§116.151 and §§116.160-116.163 of 

this title the undesignated headings of

Subchapter B of this chapter (relating to 

Nonattainment Review or and

Prevention of Significant Deterioration 

Review) or Subchapter C of this 

Chapter (relating to Hazardous Air 

Pollutants: Regulations Governing 

Constructed or Reconstructed Major 

Sources (FCAA, §112(g) 40 CFR Part 

63)), the permit may include a special 

condition which requires the permittee 

to obtain written approval from the 

Withdrawal 

Submitted 

10/21/2013 

Approval. 

Meets Section 

110(2)(A) and 

(C) of CAA. 

Meets 40 CFR 

51.160(a) and 

51.230(b), 

Except for the 

words, “or

Subchapter C of 

this Chapter 

(relating to 

Hazardous Air 

Pollutants: 

Regulations 

Governing 

Constructed or 

Reconstructed 

Major Sources 

(FCAA, §112(g) 

40 CFR Part 

63)),” which 
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executive director Executive Director

before constructing a facility under a 

standard permit of an exemption under 

Chapter 106 of this title (relating to

Exemptions from Permitting) exemption

or standard permit.

were 

withdrawn.

Submitted 11/29/1994; resubmitted 10/21/2013

(b) A pollutant specific emission cap or multiple emissions caps and/or individual emission limits shall 

be for each air contaminant for all facilities authorized by the flexible permit.

Approval.

The rule 

definition is 

integral to the 

implementation 

of the minor 

NSR flexible 

permit program 

and does not 

circumvent the 

requirements of 

Section 110 of 

the CAA which 

requires 

regulation of any 

stationary source 

necessary to 

assure NAAQS 

are achieved.

Submitted 11/29/1994; resubmitted 10/21/2013

(c) The following general and conditions shall be applicable to every flexible permit:

Approval.

Meets Section 

110(a)(2)(A) 

and (C) of CAA. 

Meets 40 CFR 

Subparts 

51.160(a) and 

51.230(b). 

Submitted 

11/29/1994; 

resubmitted 

10/21/2013

(1) Voiding of 

permit. A flexible 

permit or flexible

permit amendment 

under this subchapter 

is automatically

void if the holder fails 

to complete 

construction as

specified in the 

flexible permit. Upon 

request, the Executive 

Director may grant a 

one time 12-month 

extension of the date 

to complete 

Submitted 9/11/2000; resubmitted 10/21/2013

(1) Voiding of permit. A flexible permit or 

flexible permit amendment under this subchapter is 

automatically void if the holder fails to complete 

construction as specified in the flexible permit. 

Upon request, the executive director Executive

Director may grant a one time 12-month extension 

of the date to complete construction. This 

section does not apply to physical or operational 

changes allowed without an amendment under 

§116.721 of this title (relating to Amendments and 

Alterations).

Submitted 9/25/2003; 

resubmitted 10/21/2013

(1) Voiding of permit. A

flexible permit or flexible

permit amendment under

this subchapter is

automatically void if the

holder fails to complete 

construction as specified

in the flexible permit. 

Upon request, the

executive director may

grant a one time 12-month

extension of the date to

complete construction. 

This section does not 

apply to physical or 

operational changes 

allowed without an 

amendment under 

Approval. 

Meets Section 

110(a)2)(A) and 

(C) of CAA. 

Meets 40 CFR 

Subparts 

51.160(a) and 

51.230(b). 
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construction. This 

section does not apply 

to physical or

operational changes 

allowed without an 

amendment under

§116.721 of this 

title (relating to 

Amendments and

Alterations).

§116.721 of this title 

(relating to Amendments 

and Alterations).

Submitted 11/29/1994; resubmitted 10/21/2013

(2) Construction progress. The start of construction, 

construction interruptions exceeding 45 days, and completion 

of construction shall be reported to the appropriate regional 

office of the Texas Natural Resource Conservation 

Commission (TNRCC) no later than 15 working days after 

occurrence of the event.

Amendment submitted 7/22/1998; 

resubmitted 10/21/2013

(2) Construction progress. The start of 

construction, construction interruptions 

exceeding 45 days, and completion of 

construction shall be reported to the 

appropriate regional office of the 

commission Texas Natural Resource

Conservation Commission (TNRCC) 

no later than 15 working days after 

occurrence of the event.

Approval.

Meets Section 

110(a)(2)(A) 

and (C) of 

CAA. Meets 

40 CFR 

Subparts 

51.160(a) and 

51.230(b). 

Submitted 

11/29/1994; 

resubmitted 

10/21/2013

(3) Start-up 

notification. . . 

. 

Submitted 7/22/1998; resubmitted 10/21/2013

(3) Start-up notification.

Submitted 9/25/2003; 

resubmitted 10/21/2013

(3) Start-up notification.

Approval.

Meets Section 

110(a)(2)(A) and 

(C) of CAA. 

Meets 40 CFR 

Subparts 

51.160(a) and 

51.230(b). 

Submitted 

11/29/1994; 

resubmitted 

10/21/2013

. . . The appropriate 

Air Program Regional 

Office of the TNRCC 

and any local program 

having jurisdiction

shall be notified prior 

to commencement of 

operations of the 

facilities authorized 

by permit in such a 

manner that a

representative of the 

TNRCC may be 

present. . . .

Submitted 7/22/1998; resubmitted 10/21/2013

The appropriate regional

office of the commission Air Program Regional

Office of the TNRCC and any local program 

having jurisdiction shall be notified prior to 

commencement of operations of the facilities 

authorized by permit in such a manner that a 

representative of the commission TNRCC may 

be present. . . .

Submitted 9/25/2003; 

resubmitted 10/21/2013

(A) The appropriate 

regional office of the 

commission and any local 

program having 

jurisdiction shall be 

notified prior to 

commencement of 

operations of the facilities 

authorized by permit in 

such a manner that a 

representative of the 

commission may be 

present.

Approval.

Meets Section 

110(a)(2)(A) and 

(C) of CAA. 

Meets 40 CFR 

Subparts 

51.160(a) and 

51.230(b). 

Submitted 

11/29/1994; 

resubmitted 

10/21/2013

. . . Phase 

Submitted 7/22/1998; resubmitted 10/21/2013. . . 

Phase construction, which may involve a series of 

facilities commencing operations at different 

times, shall provide separate notification for the 

commencement of operations for each facility

Submitted 9/25/2003; 

resubmitted 10/21/2013

(B) Phase construction, 

which may involve a series 

of facilities commencing 

Approval.

Meets Section 

110(a)(2)(A) and 

(C) of CAA. 

Meets 40 CFR 
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construction,

which may involve 

a series of facilities 

commencing

operations at different 

times, shall provide 

separate notification 

for the 

commencement of 

operations for each 

facility.

operations at different 

times, shall provide 

separate notification for the 

commencement of 

operations for each facility.

Subparts 

51.160(a) and 

51.230(b). 

Submitted 9/25/2003; resubmitted 

10/21/2013

(C) Prior to beginning operations 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.

Meets Section 

110(a)(2)(A) and 

(C) of CAA. 

Meets 40 CFR 

Subparts 

51.160(a) and 

51.230(b). 

Submitted 11/29/1994; resubmitted 10/21/2013

(4) Sampling requirements. If sampling of

stacks or process vents is required, the flexible permit holder 

shall contact the Source and Mobile Monitoring Section of the 

TNRCC Office of Air Quality prior to sampling to obtain

proper data forms and procedures. All sampling and testing 

procedures must be approved by the Executive Director and 

coordinated with the appropriate Air Program Regional Office 

of the TNRCC. The flexible permit holder is also responsible 

for providing sampling facilities and conducting the sampling 

operations or contracting with an independent sampling

consultant.

Submitted 7/22/1998; resubmitted 

10/21/2013

(4) Sampling requirements. If 

sampling of stacks or process vents is 

required, the flexible permit holder shall 

contact the commission’s Engineering 

Services Section, Office of Compliance 

and Enforcement Source and Mobile

Monitoring Section of the TNRCC

Office of Air Quality prior to sampling 

to obtain proper data forms and 

procedures. All sampling and testing 

procedures must be approved by the 

executive director Executive Director

and coordinated with the appropriate 

regional office of the commission Air

Program Regional Office of the

TNRCC. The flexible permit holder is 

also responsible for providing 

sampling facilities and conducting the 

sampling operations or contracting with 

an independent sampling consultant.

Approval.

Meets Section 

110(a)(2)(A) 

and (C) of CAA. 

Meets 40 CFR 

Subpart 

51.160(c). 

Submitted 

11/29/1994; 

resubmitted 

10/21/2013

(5) Equivalency of 

methods. It shall be 

the responsibility of 

the flexible permit 

holder to demonstrate 

or justify the 

equivalency of

emission control 

Submitted 7/22/1998; resubmitted 10/21/2013

(5) Equivalency of methods. It shall be the 

responsibility of the flexible permit holder to 

demonstrate or justify the equivalency of emission 

control methods, sampling or other emission testing 

methods, and monitoring methods as alternatives to 

methods indicated in the conditions flexible permit. 

Alternative methods shall be applied for in writing and 

must be reviewed and approved by the executive 

director Executive Director prior to their use in 

fulfilling any requirements of the permit.

Adopted 12/14/10 

and Submitted 

10/21/2013 

(5) Monitoring, 

Calculations, and

Equivalency of 

methods. 

(A) Each flexible 

permit shall specify 

requirements for 

monitoring or 

demonstrating 

Approval.

Meets Section 

110(a)(2)(A) 

and (C) of 

CAA. Meets 40 

CFR Subpart 

51.160(c). 
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methods, sampling or 

other emission testing 

methods, and 

monitoring methods 

as alternatives to 

methods indicated in

the conditions flexible 

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.

compliance with 

emission caps and 

individual emission 

limits in the flexible 

permit.

(B) Each flexible 

permit shall specify 

methods for 

calculating annual 

and short term 

emissions for each 

pollutant for a given 

type of facility. 

Submitted 

11/29/1994; 

resubmitted 

10/21/2013

(6) Recordkeeping. 

A copy of the flexible 

permit along with 

information and data

sufficient to 

demonstrate 

continuous 

compliance with the 

emission caps and 

individual emission 

limitations contained 

in the flexible permit 

shall be maintained in 

a file a the plant site 

and made available at 

the request of 

personnel from the 

TNRCC or any air 

pollution control 

program having 

jurisdiction. For 

facilities that 

normally operate 

unattended, this 

information shall be 

maintained at the

nearest staffed 

location within Texas 

specified by the 

permit holder in the 

Submitted 7/22/1998; 

resubmitted 

10/21/2013

(6) Recordkeeping. A

copy of the flexible 

permit along with

information and data 

sufficient to

demonstrate

continuous compliance

with the emission caps

and individual

emission limitations

contained in the 

flexible permit shall be 

maintained in a file a 

the plant site and made 

available at the request 

of personnel from the

commission TNRCC 

or any air pollution

control program

having jurisdiction. 

For facilities that

normally operate

unattended, this 

information shall be 

maintained at the

nearest staffed location

within Texas specified 

by the permit holder in

the permit application. 

This nformation may 

include, but is not

Submitted 9/25/2003

(6) Recordkeeping. A copy 

of the flexible permit along 

with information and data 

sufficient to demonstrate 

continuous compliance with 

the emission caps and 

individual emission 

limitations contained in the 

flexible permit shall be 

maintained in a file at the 

plant site and made 

available at the request of 

personnel from the 

commission or any air 

pollution control program 

having jurisdiction. Far 

facilities that normally 

operate unattended, this 

information shall be 

maintained at the nearest 

staffed location within 

Texas specified by the 

permit holder in the permit 

application. This 

information may include, 

but is not limited to, 

emission cap and individual 

emission limitation 

calculations based on a 12-

month rolling basis and 

production records and 

operating hours. Additional 

recordkeeping requirements 

Submitted 

10/21/2013

(6) Recordkeeping. 

The permit holder 

shall: (A) maintain a 

copy of the flexible 

permit along with 

information and data

sufficient to 

demonstrate 

continuous 

compliance with the 

emission caps and 

individual emission 

limitations contained 

in the flexible permit. 

This information and 

data shall include, but 

is not limited to:

(i) emission cap and 

individual emission

limitation 

calculations based 

upon a 12-month 

rolling basis; (ii) 

emission cap and 

individual emission 

limitation 

calculations 

corresponding to any 

short term emission 

limitation; 

Withdrawn. 

30 TAC §

116.715(c)(6) as 

amended August 

20, 2003, and all 

earlier versions. 

Approval. 

10/21/2013 

Submittal 

meets Section 

110(a)(2)(A) 

and (C) of 

CAA. Meets 

40 CFR 

Subpart 

51.160(c). 
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permit application.

This information may 

include, but is not 

limited to, emission 

cap and individual 

emission limitation 

calculations based 

upon a 12-month 

rolling basis and 

production records 

and operating hours. 

Additional 

recordkeeping 

requirements may be 

specified in special

conditions attaché to 

the flexible permit.

Information in the file 

shall be retained for at 

least two years 

following the date 

that the information 

or data is obtained.

limited to, emission cap

and individual emission

limitation calculations 

based upon a 12-month

rolling basis and

production records and

operating hours. 

Additional

recordkeeping

requirements may be 

specified in special 

conditions attaché to

the flexible permit. 

Information in the file 

shall be retained for at 

least two years

following the date that

the information or data

is obtained.

may be specified in special 

conditions attached to the 

flexible permit. Information 

in the file shall be retained 

for at least two years 

following the date that the 

information or data is 

obtained.

Submitted 11/29/1994; resubmitted 10/21/2013

(7) Maximum allowable emission rates. A flexible permit covers only those sources of

emissions and those air contaminants listed in the table entitled “Emission Sources, Emission Caps and 

Individual Emission Limitations” attached to the flexible permit.

Approval.

Meets Section 

110(a)(2)(A) 

and (C) of CAA. 

Meets 40 CFR 

Subparts 

51.160(a) and 

51.230(b).

Submitted 11/29/1994; resubmitted 10/21/2013

(8) Emission cap readjustment. If a schedule to install additional controls is included in the flexible 

permit and the facility subject to such a schedule is taken out of service, the emission cap contained in the 

flexible permit will be readjusted for the period the unit is out of service to a level as if no schedule had 

been established. Unless a special provision specifies the method of readjustment of the cap, a permit 

alteration shall be obtained.

Approval.

The rule 

definition is 

integral to the 

implementation 

of the minor 

NSR flexible 

permit program 

and does not 

circumvent the 

requirements of 

Section 110 of 

the CAA which 

requires 

regulation of any 

stationary source 

necessary to 

assure NAAQS 

are achieved. 

Recodification.
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Submitted 11/29/1994; 

resubmitted 10/21/2013 

(9) Maintenance of

emission control. The 

facilities covered by the 

flexible permit 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.

Notification for upsets 

and maintenance shall be 

made in accordance with

§101.6 and §101.7 of this 

title (relating to Notification

Requirements for Major 

Upset and Notification

Requirements for

Maintenance).

Submitted

7/22/1998; 

resubmitted 

10/21/2013

(9) Maintenance of 

emission control. The 

facilities covered by 

the flexible permit 

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. 

Notification for upsets 

and maintenance shall 

be made in accordance 

with §101.6 and 

§101.7 of this title 

(relating to Upset

Reporting and

Recordkeeping

Requirements;

Maintenance, Startup

and Shutdown

Reporting,

Recordkeeping and

Operational

Requirements

Notification

Requirements for

Major Upset and

Notification

Requirements for

Maintenance).

Submitted

9/4/2002; resubmitted 

10/21/2013

(9) Maintenance of 

emission control. The 

facilities covered by 

the flexible permit 

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. 

Notification of

emission events and

scheduled 

maintenance shall be

made in accordance

with §101.201 and

§101.211 if this title 

(relating to Emissions

Event and Reporting

Requirements; and

Scheduled

Maintenance, Startup,

and Shutdown

Reporting and

Recordkeeping). 

Notification for upsets

and maintenance 

shall be made in

accordance with

§101.6 and §101.7 of

this title (relating to

Upset Reporting and

Recordkeeping

Requirements; 

Maintenance, Startup

and Shutdown

Reporting,

Recordkeeping and

Operational

Requirements.

Submitted

9/25/2003; resubmitted 

10/21/2013

(9) 

Maintenance of 

emission control. The 

facilities covered by the 

flexible permit 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. Notification 

of emission events and 

scheduled maintenance 

shall be made in 

accordance with 

§101.201 and §101.211 

if this title (relating to 

Emissions Event and 

Reporting requirements; 

and Scheduled 

Maintenance, Startup, 

and Shutdown 

Reporting and 

Recordkeeping 

Requirements). 

Approval.

Meets Section 

110(a)(2)(A) of 

the CAA.

Submitted 11/29/1994; 

resubmitted 10/21/2013

(10) Compliance with 

rules. Acceptance of a 

flexible permit by a permit 

applicant constitutes an 

acknowledgement and 

agreement that the holder 

Submitted 7/22/1998; resubmitted 10/21/2013

(10) Compliance with rules. Acceptance of a flexible permit by a permit 

applicant constitutes an acknowledgement and agreement that the holder 

will comply with all Rules, Regulations, and Orders of the commission

Commission issued in conformity with the TCAA Texas Clean Air Act and 

the conditions precedent to the granting of the permit. If more than one 

state or federal rule or regulation or flexible permit conditions are 

applicable, then the most stringent limit or conditions shall govern and be 

Approval.

Meets 40 CFR 

Subpart 

51.160(a)(1)..
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will comply with all Rules,

Regulations, and Orders of 

the Commission issued in 

conformity with the Texas 

Clean Air Act and the 

conditions precedent to the 

granting of the permit. If 

more than one state or 

federal rule or regulation 

or flexible permit 

conditions are applicable, 

then the most stringent 

limit or conditions shall 

govern and be the standard 

by which compliance shall 

be demonstrated.

Acceptance includes 

consent to the entrance of

Commission employees 

and agents into the

permitted premises at 

reasonable times to

investigate conditions 

relating to the emissions or 

concentration of air 

contaminants, including

compliance with the 

flexible permit.

the standard by which compliance shall be demonstrated. Acceptance 

includes consent to the entrance of commission Commission employees and 

agents into the permitted premises at reasonable times to investigate 

conditions relating to the emissions or concentration of air contaminants, 

including compliance with the flexible permit. 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(d) There may be 

additional special 

conditions attached to a 

flexible permit upon 

issuance or amendment of 

the permit. Such 

conditions in a flexible 

permit may be more 

restrictive than the

requirements of this title.

Submitted 10/21/2013 

(d), Each permit with emission caps must include special conditions that 

satisfy the following requirements for facilities subject to those caps. . . . 

These requirements do not apply to facilities that are not subject to an 

emission cap. 

Approval.

Meets 40 CFR 

Subpart 

51.160(a)(1). 

Submitted 10/21/2013 

(d)(1) The monitoring system must accurately determine all emissions of the pollutants in terms of mass 

per unit of time. Any monitoring system authorized for use in the permit must be based on sound science 

and meet generally acceptable scientific procedures for data quality and manipulation. 

Approval.

Meets 40 CFR 

Subpart 

51.160(a)(1). 

Submitted 10/21/2013 

(f) The executive director may require as a special condition that the permit holder obtain written 

approval before constructing a source under a standard permit under Subchapter F of this chapter (relating 

to Standard Permits) or a permit by rule under Chapter 106 of this title. Such written approval may be 

required if the executive director specifically finds than an increase of a particular pollutant could either: 

(1) result in a significant impact on the air environment, or (2) cause the facility, group of facilities, or 

account to become subject to review . . . (B) the provisions in Subchapter B, Divisions 5 and 6 of this 

chapter (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review, 

respectively).

Approval, 

except (f)(2)(A). 

Meets 40 CFR 

Subpart 

51.160(a)(1). 

Excludes : (A) 

Subchapter E of 

this chapter 

(relating to 
TECHNICAL SUPPORT DOCUMENT 

Revisions to the New Source Review State Implementation Plan; Flexible Permit

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

82 

Hazardous Air 

Pollutants: 

Regulations, 

Governing 

Constructed or 

Reconstructed 

Major Sources 

(FCAA, 112(g), 

40 CFR Part 

63)); or 
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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

83 

1. Background on 30 TAC § 116.716. Emission Caps and Individual Emission 

Limitations.

Current SIP-Approved 30 TAC § 116.716:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by 

TNRCC November 16, 1994, effective December 8, 1994. This was 

resubmitted October 21, 2013. 

 A SIP amendment was submitted on October 21, 2013, adopted on 

September 24, 2013, effective on September 26, 2013. Amendments cover 

revised 30 TAC §§ 116.716(c), (c)(1)(A), and § 116.716(e) regarding 

establishing an emission cap and individual emission limits. It withdrew 30 

TAC §§ 116.716(a) & (d), as adopted November 16, 1994, effective 

December 8, 1994, and also submitted (a), (c), (d) and (e) as adopted 

December 14, 2010, effective January 6, 2011. 

Proposed Action:

• Approval of the 30 TAC § 116.716.

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.716 – Emission Caps and

Individual Emission

Comments

Submitted 11/29/1994; resubmitted 10/21/2013

(a) Emission caps. Each emission cap for 

a specific pollutant will be established as

follows: 

(1) emissions will be established for each 

facility based upon application of current best 

available control technology at expected 

maximum capacity; 

(2) the calculated emissions will be summed. 

Submitted 10/21/2013 

(a) Emission caps. To establish a cap for 

a pollutant, the executive director will 

develop an emission cap for: 

(1) all facilities at an account; or 

(2) a designated group of facilities at an 

account. 

The October 21, 2013, SIP 

submittal included the 

withdrawal of the 

provisions at 30 TAC § 

116.716(a) as adopted 

November 16, 1994. 

Accordingly, EPA will not 

review or take action on 

this provision because 

they are no longer before 

us for SIP consideration. 
TECHNICAL SUPPORT DOCUMENT 

Revisions to the New Source Review State Implementation Plan; Flexible Permit

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Submitted 11/29/1994; resubmitted 10/21/2013

(b) Individual emission limitations. An individual emission limitation will be 

established in the same permit for each pollutant not covered by an emission cap for 

facilities covered by the flexible permit. In addition, and individual emission limitation 

may be established for a pollutant covered by an emission cap when the expected 

capacity of a facility is less than the expected maximum capacity to prevent a facility 

from exceeding emission levels appropriate for the proposed controls.

Approval

Meets the requirements of 

40 CFR 51.230 for emission 

limitations 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(c) Readjustment of the cap. If 

a facility subject to an emission 

cap is shut down for a period 

longer than 12 months, the 

emission cap shall be 

readjusted by lowering the 

emission cap by an amount that 

the shut down facility 

contributed to the original 

calculation of the emission cap. 

If a new facility is brought into 

a flexible permit, an emission 

cap shall be adjusted by 

modifying the emission cap 

accordingly

.

Submitted 10/21/2013 

(c) Emissions will be calculated for each facility 

within an emission cap as follows:

(1) Determination of control technology:

(A) if the permit is used to authorize any facility, 

group of facilities or account, or any change to 

existing facilities, that constitutes a new major 

stationary source or major modification for the 

pollutant as defined by §116.12 of this title (relating 

to Nonattainment and Prevention of Significant 

Deterioration Review Definitions), Significant 

Deterioration Review Definitions), emissions shall 

be based on control technology determined in 

accordance with Subchapter B, Division 5 or 6 of 

this chapter (relating to Nonattainment Review 

Permits; and Prevention of Significant Deterioration 

Review, respectively) as applicable, at expected 

maximum capacity or 

(B) based on application of best available control 

technology as defined in §116.10 of this title 

(relating to General Definitions), at expected 

maximum capacity.

(2) pollutants emitted from facilities subject to lowest

achievable emission rate review in accordance with 

Subchapter B, Division 5 of this chapter must be 

included in a separate emissions cap or listed as 

individual emission limitations.

(3) the calculated emissions for all facilities within 

an emission cap will be summed.

(4) a lower emission cap than that determined by 

paragraph (3) of this subsection may be proposed by 

the permit applicant if technical information is 

provided to demonstrate that it is feasible to operate 

in compliance with the proposed emission cap.

Approval. 

The rule is integral to the 

implementation of the 

minor NSR flexible permit 

program and does not 

circumvent the 

requirements of § 110(a) of 

the CAA which requires 

regulation of any stationary 

source necessary to assure 

NAAQS are achieved. See 

40 CFR Subpart 51.160.

Submitted 11/29/1994; 

resubmitted 10/21/2013

(d) Insignificant emission factor. 

The emission caps and individual 

emissions limitation calculated 

pursuant to this section may 

include an Insignificant Emission 

Factor which does not exceed 

9.0% of the total emission cap or 

individual emission limitation.

Withdrawn 10/21/2013 The October 21, 2013, SIP 

submittal included the 

withdrawal of the 

withdrawn 30 TAC § 

116.716(d) as adopted 

November 16, 1994. 

Accordingly, EPA will not 

review or take action on 

this provision because 

they are no longer before 

us for SIP consideration. 
TECHNICAL SUPPORT DOCUMENT 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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 Submitted 10/21/2013 

(d) Individual emission limitations. An individual 

emission limitation will be established in the same 

permit for each pollutant not included in an emission 

cap for facilities authorized by the flexible permit. In 

addition, an individual emission limitation may be 

established for a pollutant included in an emission cap 

when the expected capacity of a facility is less than 

the expected maximum capacity to prevent a facility 

from exceeding emission levels appropriate for the 

proposed controls. 

Approval. 

The rule is integral to the 

implementation of the 

minor NSR flexible permit 

program and does not 

circumvent the 

requirements of Section 

110(a) of the CAA which 

requires regulation of any 

stationary source necessary 

to assure NAAQS are 

achieved.

Submitted 11/29/1994; 

resubmitted 10/21/2013

(e) An emission cap will be 

readjusted downward for any 

facility covered by a flexible 

permit if that facility becomes 

subject to any new state or federal 

regulation which would lower 

emissions or require an emission 

reduction. The adjustment will be 

made at the time the flexible 

permit is amended or altered. If 

an amendment to a flexible permit 

is not required to meet the 

new regulation, then within 60 

days of making the change, the 

permitted must submit a request to

alter the permit and include 

information describing how 

compliance with the new 

requirement will be demonstrated. 

 Submitted 10/21/2013 

(e) The permit shall clearly identify, by a table or 

other appropriate means, the facilities that are subject

to an emission cap, and the facilities that are subject 

to individual emission limitations. A facility may be 

subject to both an emission cap and an individual 

emission limitation.

Approval. 

The rule is integral to the 

implementation of the minor 

NSR flexible permit program 

and does not circumvent the 

requirements of Section 

110(a) of the CAA which 

requires regulation of any 

stationary source necessary 

to assure NAAQS are 

achieved. See 40 CFR 

Subpart 51.160. 

1. Background on 30 TAC § 116.717 – Implementation Schedule for Additional 

Controls.

Current SIP-Approved 30 TAC § 116.717:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by 

TNRCC November 16, 1994, effective December 8, 1994. This was 

resubmitted October 21, 2013. 

Proposed Action:

• Approval of the addition of 30 TAC § 116.717.
TECHNICAL SUPPORT DOCUMENT 

Revisions to the New Source Review State Implementation Plan; Flexible Permit

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

86 

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.717 – Implementation Schedule for

Additional

Comments

Submitted 11/29/1994; resubmitted 10/21/2013

If a facility requires the installation of additional controls to meet an emission cap for a 

pollutant, the flexible permit shall specify an implementation schedule for such 

additional controls. The permit may also specify how the emission cap will be adjusted 

if such a facility is 

taken out of service or fails to install the additional control equipment as 

provided by the implementation schedule. 

Approval. 

The rule is integral to the 

implementation of the 

minor NSR flexible permit 

program and does not 

circumvent the 

requirements of Section 

110(a) of the CAA which 

requires regulation of any 

stationary source necessary 

to assure NAAQS are 

achieved. See 40 CFR 

Subpart 51.160. 
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Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542

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1. Background on 30 TAC § 116.718. Significant Emission Increase.

Current SIP-Approved 30 TAC § 116.718: 

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted 

October 21, 2013. 

Proposed Action:

• Approval of the addition of 30 TAC § 116.718. 

2. Evaluation Matrix. 

Annotation and Evaluation of 30 TAC § 116.718 – Significant Emission Increase Comments

Submitted 11/29/1994; resubmitted 10/21/2013 

An increase in emissions from operational or physical changes at an existing facility 

covered by a flexible permit is insignificant, for purposes of state new source review 

under this subchapter, if the increase does not exceed either the emission cap or 

individual emission limitation. This section does not apply to an increase from a new 

facility nor to the emission of an air contaminant not previously emitted by an existing 

facility.

Approval.

The rule is integral to the 

implementation of the minor 

NSR flexible permit program 

and does not circumvent the 

requirements of Section 110(a) 

of the CAA which requires 

regulation of any stationary 

source necessary to assure 

NAAQS are achieved. It allows 

flexibility under the cap but 

ensures that the cap and 

individual emission limits are 

met. Thus its protective of the 

NAAQS. See 40 CFR Subpart 

51.160 

 
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Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542

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1. Background on 30 TAC § 116.720. Limitation of Physical and Operational 

Changes.

Current SIP-Approved 30 TAC § 116.720: 

 This Section is not SIP approved. 

Revisions considered in this action:

 A SIP revision was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted 

October 21, 2013. 

Proposed Action:

 Approval of the addition of 30 TAC § 116.720. 

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.720 – Limitation of Physical and

Operational

Comments

Submitted 11/29/1994; resubmitted 10/21/2013

Neither operational nor physical changes authorized under this subchapter may result in an

increase in actual emissions at facilities not covered by the flexible permit unless those 

facilities are authorized pursuant to §116.110 of this title (relating to Applicability).

Approval. 

Section 110(a) of the CAA 

requires regulation of any

stationary source necessary 

to assure NAAQS are 

achieved. 40 CFR Subpart 

51.160 helps to ensure 

non- interference with 

attainment or national 

standard 
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Docket No. EPA-R06-OAR-2013-0542 

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1. Background on 30 TAC § 116.721. Amendments and Alterations. 

Current SIP-Approved 30 TAC § 116.721:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by 

TNRCC November 16, 1994, effective December 8, 1994. This was 

resubmitted October 21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, 

effective July 8, 1998. This was resubmitted October 21, 2013. This 

submittal includes the following amendments to 30 TAC § 116.712: 

 Amendment to subsection (a); 

 Amendment to paragraph (b)(2); and 

 Amendments to paragraphs (d)(1)-(2). 

• A SIP amendment submitted September 11, 2000, adopted August 9, 

2000, effective September 4, 2000. This was resubmitted October 21, 2013. 

This submittal includes an amendment to 30 TAC § 116.721(a). 

Proposed Action:

• Approval of the addition of 30 TAC § 116.721. 

2. Evaluation Matrix. 

Annotation and Evaluation of 30 TAC § 116.721 – Amendments and Alterations Comments
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

90 

Submitted 11/29/1994; resubmitted 10/21/2013

(a) Flexible permit amendments. All

representations with regard to construction plans 

and operation in an application for a flexible 

permit, as well as any general and specific 

provisions attached become conditions upon 

which the subsequent flexible permit is issued. 

It shall be unlawful for any person to vary from 

such representation or flexible permit provision 

if the change will cause a change in the method 

of control of emissions, the

character of emissions, or will result in a

significant increase in emissions, unless

application is made to the Executive Director to

amend the flexible permit in that regard and

such amendment is approved by the Executive

Director or Commission. Applications to

amend a flexible permit shall be submitted with

a completed Form PI-1 and are subject to the

requirements of §116.711 of this title (relating

to Flexible Permit Application).

Submitted 7/22/1998; resubmitted 10/21/2013

(a) Flexible permit amendments. All 

representations with regard to construction 

plans and operation in an application for a 

flexible permit, as well as any general and 

specific provisions attached become conditions 

upon which the subsequent flexible permit is 

issued. It shall be unlawful for any person to 

vary from such representation or flexible 

permit provision if the change will cause a 

change in the method of control of emissions, 

the character of emissions, or will result in a 

significant increase in emissions, unless 

application is made to the executive director

Executive Director to amend the flexible 

permit in that regard and such amendment is 

approved by the executive director Executive

Director or commission Commission. 

Applications to amend a flexible permit shall 

be submitted with a completed Form PI-1 and 

are subject to the requirements of §116.711 of 

this title (relating to Flexible Permit 

Application). 

Approval.

Meets 40 CFR 

Subpart 51.160(a) 

part of the legally 

enforceable 

procedures the 

state must have to 

modify a facility. 

   
TECHNICAL SUPPORT DOCUMENT 

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30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Annotation and Evaluation of 30 TAC § 116.721 – Amendments and Alterations Comments

Submitted 11/29/1994; resubmitted 10/21/2013

(b) Flexible permit alterations:

Approval.

EPA has previously 

approved alterations 

for minor source 

programs. We would 

also note that Fifth 

Cir. Co. determined 

in its ruling 

overturning EPA 

disapproval that the 

State has substantial 

flexibility in creating 

minor source 

programs. Meets 

40 CFR Subpart 

51.160(a) part of the 

legally enforceable 

procedures the state 

must have to modify 

a facility. 

Submitted 11/29/1994; resubmitted 10/21/2013

(1) A flexible permit alteration is for any variation from a representation in a flexible permit

application or a general or special provision of a flexible permit that does not require a 

flexible permit amendment.

Submitted 11/29/1994; resubmitted 10/21/2013

(2) All flexible permit alterations which

may involve a change in a general or special

condition contained in a flexible permit, or

affect control equipment performance must

receive prior approval by the Executive

Director. The Executive Director shall be

notified in writing of all other flexible permit

alterations within 10 days of implementing the

change unless the permit provides for a

different method of notification. Any flexible

permit alteration request shall include

information sufficient to demonstrate that the

change does not interfere with the owner or

operator’s previous demonstrations of

compliance with the requirements of §116.711

of this title, including protection of public

health and property and welfare. The

appropriate Texas Natural Resource

Conservation Commission Regional Office and

any local air program having jurisdiction shall

be provided copies of the flexible permit

alteration documents.

Submitted 7/22/1998; resubmitted 

10/21/2013

(2) All flexible permit alterations 

which may involve a change in a 

general or special condition contained 

in a flexible permit, or affect control 

equipment performance must receive 

prior approval by the executive director

Executive Director. The executive 

director Executive Director shall be 

notified in writing of all other flexible 

permit alterations within ten 10 days of 

implementing the change unless the 

permit provides for a different method 

of notification. Any flexible permit 

alteration request shall include 

information sufficient to demonstrate 

that the change does not interfere with 

the owner or operator’s previous 

demonstrations of compliance with the 

requirements of §116.711 of this title, 

including protection of public health and 

property and welfare. The appropriate 

commission regional office Texas Natural

Resource Conservation Commission

Regional Office and any local air program 

having jurisdiction shall be provided 

copies of the flexible permit alteration 

documents. 

Submitted 11/29/1994; resubmitted 10/21/2013

(3) Flexible permit alterations shall not be subject to the requirements of beat available control 

technology identified in §116.711(3) of this title.

Submitted 11/29/1994; resubmitted 10/21/2013

(c) Changes not requiring an amendment or alteration. The following changes do not require

an amendment or alteration, except that an amendment is required if the change will 

cause a change in the method of control of emissions, the character of emissions, or will 

result in a significant increase in emissions.

(1) a change in throughput; or

(2) a change in the feedstock.

Approval. 

Meets 40 CFR 

Subpart 51.160(a) 

part of the legally 

enforceable 

procedures necessary 

to protect the 

NAAQS or violation 

   
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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Annotation and Evaluation of 30 TAC § 116.721 – Amendments and Alterations Comments

Submitted 11/29/1994; 

resubmitted 10/21/2013

(d) Standard exemption in

lieu of permit amendment or

alteration.

Submitted 7/22/1998; resubmitted 

10/21/2013

(d) Exemption under Chapter 

106 of this title (relating to 

Exemptions from Permitting) 

Standard exemption in lieu of 

permit amendment or alteration. 

Submitted

9/11/2000; resubmitted 

10/21/2013

(d) Permits by rule

Exemption under Chapter 

106 of this title (relating 

to Exemptions from 

Permitting) in lieu of 

permit amendment or 

alteration. 

Approval.

Meets 40 CFR 

Subpart 51.160(a) 

part of the legally 

enforceable 

procedures necessary 

to protect the 

NAAQS or violation 

a control strategy. 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(1) Notwithstanding

subsections (a) or (b) of this

section, no permit

amendment or alteration is

required if the changes to the

permitted facility qualify for

an exemption under

Subchapter C of this chapter

(relating to Permit

Exemptions) unless

prohibited by permit

provision as provided in

§116.715 of this title

(relating to General and

Special Conditions). All

such exempted changes to a

permitted facility shall be

incorporated into that

facility’s permit at such time

as the permit is amended or

renewed.

Submitted 7/22/1998; resubmitted 

10/21/2013

(1) Notwithstanding subsections 

(a) or (b) of this section, no permit 

amendment or alteration is required

if the changes to the permitted 

facility qualify for an exemption 

under Chapter 106 of this title

Subchapter C of this chapter

(relating to Permit Exemptions)

unless prohibited by permit 

provision as provided in 

§116.715 of this title (relating to 

General and Special Conditions). 

All such exempted changes to a 

permitted facility shall be 

incorporated into that facility’s 

permit at such time as the permit 

is amended or renewed. 

Submitted 9/11/2000; 

resubmitted 10/21/2013

(1) Notwithstanding 

subsections (a) or (b) of 

this section, no permit 

amendment or alteration is 

required if the changes to 

the permitted facility 

qualify for a permit by rule

an exemption under 

Chapter 106 of this title 

unless prohibited by permit 

provision as provided in 

§116.715 of this title 

(relating to General and 

Special Conditions). All 

such changes permitted by

rule exempted changes to a 

permitted facility shall be 

incorporated into that 

facility’s permit at such 

time as the permit is 

amended or renewed. 

Submitted 11/29/1994; resubmitted 10/21/2013

(2) Emission increases authorized by

standard exemption at an existing facility

covered by a flexible permit shall not cause an

exceedance of the emissions cap or individual

emission limit.

Submitted 7/22/1998; resubmitted 10/21/2013

(2) Emission increases authorized by 

Chapter 106 of this title standard exemption at 

an existing facility covered by a flexible 

permit shall not cause an exceedance of the 

emissions cap or individual emission limit. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

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1. Background on 30 TAC § 116.722. Distance Limitations.

Current SIP-Approved 30 TAC § 116.722:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted 

October 21, 2013. 

• A SIP amendment was submitted September 11, 2000, August 9, 2000, 

effective September 4, 2000. This was resubmitted October 21, 2013. 

Proposed Action:

• Approval of the addition of 30 TAC § 116.722. 

2. Evaluation Matrix. 

Annotation and Evaluation of 30 TAC § 116.722 – Distance Limitations Comments

Submitted 11/29/1994; resubmitted 10/21/2013

No flexible permit may be issued unless the

distance and location restrictions found in

§116.117 of this title (relating to Distance

Limitations) are met.

Submitted 9/11/2000; resubmitted 

10/21/2013

No flexible permit may be issued unless the 

distance and location restrictions found in 

§116.112 §116.117 of this title (relating to 

Distance Limitations) are met. 

Approval.

The minor source 

federal rules have no 

siting requirements. 

It is a more stringent 

provision and 

therefore protective 

of the NAAQS. 

 
TECHNICAL SUPPORT DOCUMENT 

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Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

94 

1. Background on 30 TAC § 116.730. Compliance History 

Current SIP-Approved 30 TAC § 116.730:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted October 

21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, effective 

July 8, 1998. 

Proposed Action:

• 30 TAC § 116.730 was withdrawn from consideration in October 21, 2013, 

submittal. 

2. Evaluation Matrix. 

Annotation and Evaluation of 30 TAC § 116.730 – Compliance History Comments

Submitted 11/29/1994; resubmitted 10/21/2013

As part of a flexible permit review, or

review of an amendment of a flexible permit, or 

renewal of a flexible permit, the provision in 

the undesignated head regarding Compliance

History in Subchapter B of this chapter shall be 

applicable to the facility, group of facilities, or

account being permitted, amended, or renewed.

Submitted 7/22/1998; resubmitted 

10/21/2013

As part of a flexible permit review, 

or review of an amendment of a 

flexible permit, or renewal of a 

flexible permit, the provision in 

§§116.120-116.126 of this title 

(relating to Compliance History) 

the undesignated head regarding

Compliance History in Subchapter

B of this chapter shall be applicable 

to the facility, group of facilities, or 

account being permitted, amended, 

or renewed. 

The October 21, 2013, 

SIP submittal included 

the withdrawal of the 

provisions at 30 TAC § 

116.730. Accordingly, 

EPA will not review or 

take action on these 

provisions because they 

are no longer before us 

for SIP consideration. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

95 

1. Background on 30 TAC § 116.740. Public Notice.

Current SIP-Approved 30 TAC § 116.740:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by 

TNRCC November 16, 1994, effective December 8, 1994. This was 

resubmitted October 21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted June 17, 1998, 

effective July 8, 1998. This was resubmitted October 21, 2013. This submittal 

included the following amendments to 30 TAC § 116.740: 

 Designation of existing text as subsection (a); and 

 Addition or new subsection (b). 

• A SIP amendment was submitted September 25, 1999, adopted by 

TNRCC September 2, 1999, effective September 24, 1999. This was 

resubmitted October 21, 2013. This submittal included amendments to 30 

TAC § 116.740(a) and (b). 

Proposed Action:

 Approval of the addition of 30 TAC § 116.740(a). 

 30 TAC § 116.740(b) was withdrawn from consideration in October 21, 2013, 

submittal. 

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.740 – Public Notice Comments
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

96 

Submitted 11/29/1994; 

resubmitted 10/21/2013

Any person who applies 

for a flexible permit or an 

amendment to a flexible 

permit shall comply with 

the provisions in the

undesignated head 

regarding Public 

Notification and Comment 

procedures in Subchapter 

B of this chapter.

Submitted 7/22/1998; 

resubmitted 10/21/2013

(a) Any person who applies 

for a flexible permit or an 

amendment to a flexible 

permit shall comply with the 

provisions in §§116.130-

116.134, 116.136, 116.137 of

this title (relating to Public 

Notification and Comment 

Procedures the undesignated

head regarding Public

Notification and Comment

procedures in Subchapter B

of this chapter. 

Submitted 10/25/1999; 

resubmitted 10/21/2013

(a) Any person who applies for 

a flexible permit or an 

amendment to a flexible permit 

shall comply with the 

provisions in Chapter 39 of this 

title relating to Public Notice)

§§116.130-116.134, 116.136,

116.137 of this title (relating to

Public Notification and

Comment Procedures. 

Approval 

The revisions to 30 TAC 

§ 116.740 as adopted in 

November 29, 1994 and 

revised July 22, 1998; 

and October 25, 1999 are 

approvable. This section 

cross references the 

Public Participation 

provisions for the Texas 

Air Permit programs at 

Chapter 39. See the 

separate analysis of the 

Chapter 39 applicability 

provisions and public 

notice requirements for 

how Chapter 39 satisfies 

the CAA and EPA 

requirements for minor 

NSR public notice. 

Submitted 7/22/1998; 

resubmitted 10/21/2013

(b) Any person who 

applies for an amendment 

to a flexible permit that 

concerns a maximum 

achievable control 

technology determination 

for constructed or 

reconstructed sources 

under Subchapter C of this 

chapter (relating to 

Hazardous Air Pollutants:

Regulations Governing 

Constructed or

Reconstructed Sources 

(FCAA, §112(g) 40

CFR Part 63)) shall 

comply with the provisions 

in §§116.130-116.134, 

116.136, 116.137 of this 

title.

Submitted 10/25/1999; 

resubmitted 10/21/2013

(b) Any person who applies 

for an amendment to a 

flexible permit regarding an

affected source (as defined 

in §116.15(1) of this title 

(relating to Section 112(g) 

Definitions)) subject to that

concerns a maximum 

achievable control

technology determination for

constructed or reconstructed

sources under Subchapter C 

of this title chapter (relating 

to Hazardous Air Pollutants: 

Regulations Governing 

Constructed or 

Reconstructed Sources 

(FCAA, §112(g) 40 CFR 

Part 63)) shall comply with 

the provisions in Chapter 39 

of this title (relating to 

Public Notice). §§116.130-

116.134, 116.136, 116.137

of this title.

Submittal Withdrawn 

10/21/2013 

(b) Any person who applies for

an amendment to a flexible

permit regarding an affected

source (as defined in

§116.15(1) of this title (relating

to Section 112(g) Definitions)) 

subject to Subchapter C of this

title (relating to Hazardous Air 

Pollutants: Regulations

Governing Constructed or

Reconstructed Sources (FCAA,

§112(g) 40 CFR Part 63)) shall

comply with the provisions in

Chapter 39 of this title (relating

to Public Notice). 

The October 21, 2013 SIP 

submittal included the 

withdrawal of the 

provisions at 30 TAC §

116.740(b). Accordingly, 

EPA will not review or 

take action on these 

provisions because they 

are no longer before us 

for SIP consideration.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

97 

1. Background on 30 TAC § 116.750. Flexible Permit Fee.

Current SIP-Approved 30 TAC § 116.750:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by 

TNRCC November 16, 1994, effective December 8, 1994. This was 

resubmitted October 21, 2013. 

• A SIP amendment was submitted July 22, 1998, adopted by TNRCC June 

17, 1998, effective July 8, 1998. This was resubmitted October 21, 2013. This 

submittal included amendments to subsections (b)-(d). 

• A SIP amendment was submitted September 11, 2000, adopted by 

TNRCC August 9, 2000, effective September 4, 2000. This was resubmitted 

October 21, 2013. This submittal included amendments to subsection (d). 

• A SIP amendment was submitted October 4, 2002, adopted by TCEQ 

September 25, 2002, effective October 20, 2002. This was resubmitted 

October 21, 2013. This submittal included amendments to subsections (b)-(c). 

Proposed Action:

• Approval of the addition of 30 TAC § 116.750. 

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.750 – Flexible Permit Fee Comments

Submitted 11/29/1994; resubmitted 10/21/2013

(a) Fees required. Any person who applies for a flexible permit or for an amendment to 

an

existing flexible permit shall remit, at the time of application for such permit, a fee 

as set forth in subsection (b) of this section. Fees will not be charged for flexible 

permit alterations.

Approval.

Not separable from other 

provisions relating to the 

Texas Flexible Permits 

Program. The minor 

source federal rules have 

no fees requirements, it is 

a more stringent provision 

and therefore protective of 

the NAAQS. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

98 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(b) Fee amounts. The fee to

be remitted with a flexible

permit application shall be

based on the total annual

allowable emissions from the

permitted facility, group of

facilities, or account for which

the flexible permit is being

sought. The fee shall be $25

per ton with the minimum fee

being $450 and the maximum

fee $75,000. For flexible

permit amendments, the fee

shall be calculated based on

$25 per ton for the incremental

emission increase with the

maximum fee being $75,000.

Submitted 7/22/1998; 

resubmitted 10/21/2013

(b) Fee amounts. The fee 

to be remitted with a flexible 

permit application shall be 

based on the total annual 

allowable emissions from the 

permitted facility, group of 

facilities, or account for which 

the flexible permit is being 

sought. The fee shall be $25 

per ton with the minimum fee 

being $450 and the maximum 

fee $75,000. For flexible 

permit amendments, the fee 

shall be calculated based on 

$25 per ton for the incremental 

emission increase with the 

minimum fee being $450 and

the maximum fee being 

Submitted 10/4/2002; 

resubmitted 10/21/2013

(b) Fee amounts. The fee 

to 

be remitted with a flexible 

permit application shall be 

based on the total annual 

allowable emissions from the 

permitted facility, group of 

facilities, or account for 

which the flexible permit is 

being sought. The fee shall 

be $32 $25 per ton with the 

minimum fee being $900

$450 and the maximum fee 

$75,000. For flexible permit 

amendments, the fee shall be 

calculated based on $32 $25

per ton for the incremental 

emission increase with the 

Approval.

Not separable 

from other 

provisions relating 

to the Texas 

Flexible Permits 

Program. The 

minor source 

federal rules have 

no fees 

requirements, it is 

a more stringent 

provision and 

therefore 

protective of the 

NAAQS. 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(c) Payment of fees. All

permit fees for a flexible

permit shall be remitted in the

form of a check or money

order made payable to the

Texas Natural Resource

Conservation Commission

(TNRCC) and delivered with

the application for a flexible

permit or flexible permit

amendment to the TNRCC’s

Office Air Quality New Source

Review Program. Required

fees must be received before

the agency will begin

examination of the application.

Submitted 7/22/1998; 

resubmitted 10/21/2013

(c) Payment of fees. All 

permit fees for a flexible 

permit shall be remitted in the 

form of a check or money 

order made payable to the 

Texas Natural Resource 

Conservation Commission 

(TNRCC) and delivered with 

the application for a flexible 

permit or flexible permit 

amendment to the 

commission’s New Source

Review Permitting Division

TNRCC’s Office Air Quality

New Source Review Program. 

Required fees must be 

received before the agency 

will begin examination of the 

application. 

Submitted 10/4/2002; 

resubmitted 10/21/2013

(c) Payment of fees. 

All permit fees for a 

flexible permit shall be 

remitted in the form of a 

check, certified check, 

electronic funds 

transfer, or money order 

made payable to the 

Texas Commission on 

Environmental Quality

Texas Natural Resource

Conservation

Commission and 

delivered with the 

application for a flexible 

permit or flexible permit 

amendment to the 

commission’s New Source 

Review Permitting 

Division. Required fees 

must be received before the 

agency will begin 

examination of the 

application. 

Approval.

Not separable from 

other provisions 

relating to the Texas

Flexible Permits 

Program. The minor

source federal rules 

have no fees 

requirements, it is a 

more stringent 

provision and 

therefore protective 

of the NAAQS. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits 

Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

99 

Submitted 11/29/1994; 

resubmitted 10/21/2013

(d) Return of fees. Fees

must be paid at the time an

application for a flexible

permit or flexible permit

amendment is submitted. If the

applicant withdraws the

application prior to issuance of

the flexible permit or flexible

permit amendment, one-half of

the fee will be refunded, except

that the entire fee will be

refunded for any such

application for which a

standard exemption is allowed.

No fees will be refunded after a

deficient application has been

voided, denied, or after a

flexible permit or flexible

permit amendment has been

issued by the agency.

Submitted 7/22/1998; 

resubmitted 10/21/2013(d) 

Return of fees. Fees 

must be paid at the time an 

application for a flexible 

permit or flexible permit 

amendment is submitted. If 

the applicant withdraws the 

application prior to issuance of 

the flexible permit or flexible 

permit amendment, one-half of 

the fee will be refunded, 

except that the entire fee will 

be refunded for any such 

application for which an

exemption under Chapter 106

of this chapter (relating to

Exemptions from Permitting) a

standard exemption is allowed. 

No fees will be refunded after 

a deficient application has 

been voided, denied, or after a 

flexible permit or flexible 

permit amendment has been 

issued by the agency. 

Submitted 9/11/2000; 

resubmitted 10/21/2013

(d) Return of fees. Fees 

must be paid at the time an 

application for a flexible 

permit or flexible permit 

amendment is submitted. If 

the applicant withdraws the 

application prior to issuance 

of the flexible permit or 

flexible permit amendment, 

one-half of the fee will be 

refunded, except that the 

entire fee will be refunded 

for any such application 

for which a permit by rule

an exemption under 

Chapter 106 of this chapter 

(relating to Permits by

Rule Exemptions from

Permitting) is allowed. No 

fees will be refunded after 

a deficient application has 

been voided, denied, or 

after a flexible permit 

or flexible permit 

amendment has been 

issued by the agency. 

Approval.

Not separable 

from other 

provisions relating 

to the Texas 

Flexible Permits 

Program. The 

minor source 

federal rules have 

no fees 

requirements, it is a 

more stringent 

provision and 

therefore protective 

of the NAAQS. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

100 

1. Background on 30 TAC § 116.760. Flexible Permit Renewal.

Current SIP-Approved 30 TAC § 116.760:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP amendment was submitted November 29, 1994; adopted by TNRCC 

November 16, 1994, effective December 8, 1994. This was resubmitted October 

21, 2013. 

Proposed Action:

• Approval of the addition of 30 TAC § 116.760. 

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.760 – Flexible Permit Renewal Comments

Submitted 11/29/1994; resubmitted 10/21/2013

Flexible permits will be renewed in accordance with Subchapter D of this chapter (relating 

to Permit Renewals).

Approval.

Not separable from other 

provisions relating to the 

Texas Flexible Permits 

Program. Meets 40 CFR 

Subpart 51.160(a) part of 

the legally enforceable 

procedures necessary to 

protect the NAAQS or 

violation a control 

strategy 

 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

101 

1. Background on 30 TAC § 116.765. Compliance Schedule.

Current SIP-Approved 30 TAC § 116.765:

• This section is not SIP-approved. 

Revisions considered in this action:

• A SIP revision was submitted October 21, 2013; adopted by TCEQ 

September 24, 2013, effective September 26, 2013. The rule was adopted 

December 14, 2010, effective January 6, 2011. 

Proposed Action:

• Approval of the addition of 30 TAC § 116.765(b) and (c). 

2. Evaluation Matrix.

Annotation and Evaluation of 30 TAC § 116.765 – Compliance Schedule Comments

Submitted 10/21/2013

(b) The compliance date is 60 days after publication in the Federal Register of the final approval 

by the United States Environmental Protection Agency of these sections as revisions to the Texas 

State Implementation Plan. 

 

Approval.

Not separable from

other provisions 

relating to the 

Texas Flexible 

Permits Program. 

Submitted 10/21/2013

(c) Until the compliance date specified by subsection (b) of this section, applications for flexible 

permits are governed by §§116.710, 116.711, 116.715 - 116.718, 116.720, 116.721, 116.730, 

116.740 and 116.750 of this title, as they existed immediately before January 5, 2011, and those 

rules are continued in effect for that purpose. All other sections in this subchapter remain 

applicable to applications for flexible permits.

Approval.

Not separable from

other provisions 

relating to the 

Texas Flexible 

Permits Program. 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

102 

1. Background on 30 TAC §§ 116.793-116.802 and §§ 116.804-116.807. 

Current SIP-Approved 30 TAC §§ 116.793-116.802 and §§ 116.804-116.807

 These sections are not SIP-approved. 

Revisions considered in this action:

 A SIP amendment was adopted May 22, 2002, effective June 12, 2002, 

except §§ 116.794(11), 116.795(f) and 116.799(a), which were returned to 

the Commission by letter from EPA dated June 29, 2011. 

 A SIP amendment for § 116.803 was adopted August 21, 2002, effective 

September 12, 2002. 

 

Proposed Action:

 These Sections were withdrawn from consideration in the October 21, 2013, 

submittal. 

2. Evaluation Matrix. 

Annotation and Evaluation Comments

30 TAC § 116.793

Adopted 5/22/2002

(a) Existing facility flexible permit. The owner or operator of a grandfathered facility or group of 

grandfathered facilities at a site may apply for an existing facility flexible permit. The existing facility 

flexible permit may also include facilities permitted under TCAA, §382.0519. A person may apply for 

an existing facility flexible permit in accordance with §116.794 of this title (relating to Existing 

Facility Flexible Permit Application) for a facility, group of facilities, or account, provided that: 

 (1) only one existing facility flexible permit may be issued at an account site; 

 (2) modifications to facilities covered by an existing facility flexible permit may be handled through 

the amendment of the existing facility flexible permit; 

 (3) permitting of a new facility may be handled through the amendment of an existing facility flexible 

permit; and 

 (4) an existing facility flexible permit may not cover sources at more than one account site. 

(b) Change in ownership. The new owner of a facility, group of facilities, or account shall comply with 

§116.110(d) of this title (relating to Applicability) provided however, that all facilities covered by an 

existing facility flexible permit must change ownership at the same time and to the same person, or 

both the new owner and existing permit holder must obtain a permit alteration allocating the emission 

caps or individual emission limitation prior to the transfer of the permit by the commission. After the 

sale of a facility or facilities, but prior to the transfer of a permit requiring a permit alteration, the 

original permit holder remains responsible for ensuring compliance with the existing facility flexible 

permit and all rules and regulations of the commission. 

(c) Applications for an existing facility flexible permit shall be submitted under the seal of a Texas 

licensed professional engineer if required by §116.110(e) of this title. 

(d) Responsibility for existing facility flexible permit application. The owner of the facility, group of 

facilities, or account or the operator of the facility, group of facilities, or account who is authorized to 

act for the owner is responsible for complying with this section, except as provided by subsection (b) of 

this section.

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.794 Withdrawn with 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

103 

Adopted 5/22/2002 

Any application for a new existing facility flexible permit must include a completed Form PI-1G, 

Grandfathered Facility Permit Application. The Form PI-1G must be signed by an authorized 

representative of the applicant. The Form PI-1G specifies additional support information which must be 

provided before the application is deemed complete. In order to be granted an existing facility flexible 

permit, the owner or operator of the grandfathered facility shall submit information to the commission 

which demonstrates that all of the following are met. 

 (1) Protection of public health and welfare. The emissions from the facility, group of facilities, or 

account as determined under §116.800 of this title (relating to Emission Caps and Individual Emission 

Limitations), will comply with all rules and regulations of the commission and with the intent of the 

TCAA, including protection of the health and physical property of the people. 

 (2) Measurement of emissions. The facility, group of facilities, or account will have provisions for 

measuring the emission of air contaminants as determined by the executive director. This may include 

the installation of sampling ports on exhaust stacks and construction of sampling platforms in 

accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling 

Procedures Manual." 

 (3) Control method. The grandfathered facility or group of grandfathered facilities shall use an air 

pollution control method that is at least as beneficial as the best available control technology (BACT) 

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

condition of issuing a permit or permit amendment 120 months before the submittal of the existing 

facility permit application, considering the age and remaining useful life of the facility. Facilities located 

in nonattainment or near nonattainment areas which obtained a voluntary emission reduction permit 

(VERP) under Division 4 of this subchapter (relating to Voluntary Emission Reduction Permits) shall 

use generally available control technology (GACT). Control technology beyond ten year old BACT, 

GACT, or a combination of ten year old BACT and GACT may be used on certain facilities to provide 

the emission reductions necessary to comply with this requirement on a group of facilities or account 

basis, provided however, that the existing level of control may not be lessened for any facility. 

 (4) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 

40 Code of Federal Regulations (CFR), Part 60 will meet at least the requirements of any applicable 

NSPS as listed under 40 CFR Part 60, promulgated by the EPA under authority granted under FCAA, 

§111, as amended. 

 (5) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from each 

facility as defined in 40 CFR Part 61 will meet at least the requirements of any applicable NESHAP, as 

listed under 40 CFR Part 61, promulgated by EPA under authority granted under FCAA, §112, as 

amended. 

 (6) NESHAPs for source categories. The emissions from each affected facility shall meet at least the 

requirements of any applicable maximum achievable control technology (MACT) standard as listed 

under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, 

Subchapter C of this title (relating to National Emission Standards for Hazardous Air Pollutants for 

Source Categories (FCAA Section 112, 40 CFR 63)). 

 (7) Performance demonstration. The facility, group of facilities, or account will achieve the 

performance specified in the existing facility flexible permit application. The applicant may be required 

to submit additional engineering data after an existing facility flexible permit has been issued in order to 

demonstrate further that the facility, group of facilities, or account will achieve the performance 

specified in the existing facility flexible permit. In addition, initial compliance testing with ongoing 

compliance determined through engineering calculations based on measured process variables, 

parametric or predictive monitoring, stack monitoring, or stack testing may be required. 

 (8) Nonattainment review. If the facility, group of facilities, or account is located in a nonattainment 

area, each facility shall comply with all applicable requirements in accordance with Subchapter B, 

Division 5 of this chapter (relating to Nonattainment Review). 

 (9) Prevention of Significant Deterioration (PSD) review. If the facility, group of facilities, or account 

is located in an attainment area, each facility shall comply with all applicable requirements in 

accordance with Subchapter B, Division 6 of this chapter (relating to Prevention of Significant 

Deterioration Review). 

 (10) Air dispersion modeling or ambient monitoring. Computerized air dispersion modeling and/or 

ambient monitoring may be required by the commission's Air Permits Division to determine the air 

quality impacts from the facility, group of facilities, or account. 

 (11) Federal standards of review for constructed or reconstructed major sources of hazardous air 

pollutants. If the source is an affected source (as defined in §116.15(1) of this title (relating to Section 

10/21/2013 

Submittal except 

for § 116.794(11), 

which was 

returned to the 

Commission by 

letter from EPA 

dated 6/29/2011.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

104 

112(g) Definitions)), it shall comply with all applicable requirements in accordance with Subchapter C 

of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or 

Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63)). 

 (12) Mass cap and trade allocations. If subject to Chapter 101, Subchapter H, Division 3 of this title 

(relating to Mass Emissions Cap and Trade Program) the facility, group of facilities, or account must 

obtain allocations to operate. 

 (13) Application content. In addition to any other requirements of this chapter, the applicant shall: 

 (A) identify each air contaminant for which an emission cap is desired; 

 (B) identify each facility to be included in the existing facility flexible permit; 

 (C) identify each source of emissions to be included in the existing facility flexible permit, and for 

each source of emissions identify the Emission Point Number (EPN) and the air contaminants emitted; 

 (D) for each emission cap, identify all associated EPNs and provide emission rate calculations based 

on the expected maximum capacity and the proposed control technology; and 

 (E) for each individual emission limitation, identify the EPN and provide emission rate calculations 

based on the expected maximum capacity and the proposed control technology. 

 (14) Proposed control technology and compliance demonstration. The applicant shall specify the 

control technology proposed for each unit to meet the emission cap and demonstrate compliance with all 

emission caps at expected maximum production capacity. 

30 TAC § 116.795

Adopted 5/22/2002 

(a) An applicant for a permit under this division relating to existing facility flexible permits shall publish 

notice of intent to obtain the permit in accordance with Chapter 39, Subchapters H and K of this title 

(relating to Applicability and General Provisions; and Public Notice of Air Quality Applications). 

(b) Any person who may be affected by emissions from a grandfathered facility may request the 

commission to hold a notice and comment hearing on the application. The public comment period shall 

end 30 days after the publication of Notice of Receipt of Application and Intent to Obtain Permit in 

accordance with §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain 

Permit). Any hearing request must be made in writing during the 30-day public comment period. 

(c) Any hearing regarding initial issuance of a permit under this division shall be conducted in 

accordance with the procedures in §116.796 of this title (relating to Notice and Comment Hearings for 

Initial Issuance of Existing Facility Flexible Permits) and not under the APA. 

(d) The commission's response to public comments and the notice of its decision on whether to issue or 

deny a permit under this division will be conducted in accordance with the procedures in §116.797 of 

this title (relating to Notice of Final Action on Existing Facility Flexible Permit Applications). 

(e) A person affected by a decision to issue or deny a permit under this division may seek review, as 

appropriate, in accordance with the appropriate procedure in Chapter 50 of this title (relating to Action 

on Applications and Other Authorizations), and may seek judicial review under TCAA, §382.032, 

relating to Appeal of Commission Action. 

(f) Any person who applies for an amendment to an existing facility flexible permit regarding an 

affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to 

Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed 

or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63)) shall comply with the 

provisions in Chapter 39 of this title (relating to Public Notice). 

Withdrawn with 

10/21/2013 

Submittal except 

for § 116.795(f), 

which was 

returned to the 

Commission by 

letter from EPA 

dated 6/29/2011.

30 TAC § 116.796

Adopted 5/22/2002 

(a) The notice and comment hearing requirements apply only to the initial issuance of an existing 

facility flexible permit. 

(b) The commission shall decide whether to hold a hearing. The commission is not required to hold a 

hearing if it determines that the basis of the request by a person who may be affected by emissions from 

a grandfathered facility is unreasonable. If a hearing is requested by a person who may be affected by 

emissions from a grandfathered facility, and that request is reasonable, the commission will hold a 

hearing. 

(c) At the applicant's expense, notice of a hearing on a draft permit must be published in the public 

notice section of one issue of a newspaper of general circulation in the municipality in which the 

grandfathered facility is located, or in the municipality nearest to the location of the facility. The notice 

must be published at least 30 days before the date set for the hearing. The notice must include the 

following: 

 (1) the time, place, and nature of the hearing; 

 (2) a brief description of the purpose of the hearing; and 

Withdrawn with 

10/21/2013 

Submittal.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

105 

 (3) the name and phone number of the commission office to be contacted to verify that a hearing will 

be held. 

(d) Any person, including the applicant, may submit oral or written statements and data concerning the 

draft permit. 

 (1) The commission may set reasonable time limits for oral statements, and may require the submission 

of statements in writing. 

 (2) The period for submitting written comments is automatically extended to the close of any hearing. 

 (3) At the hearing, the commission may extend the period for submitting written comments beyond the 

close of the hearing. 

(e) The commission will make an audio recording or written transcript of the hearing available to the 

public. 

(f) Any person, including the applicant, who believes that any condition of the draft permit is 

inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all 

issues and submit all arguments supporting that position by the end of the public comment period. 

(g) Any supporting materials for comments submitted under subsection (f) of this section must be 

included in full and may not be incorporated by reference, unless the materials are one of the following: 

 (1) already part of the administrative record in the same proceedings; 

 (2) state or federal statutes and regulations; 

 (3) EPA documents of general applicability; or 

 (4) other generally available reference materials. 

(h) The commission will keep a record of all comments received and issues raised in the hearing. This 

record will be available to the public. 

(i) The draft permit may be changed based on comments pertaining to whether the permit provides for 

compliance with the requirements of this subchapter. 

(j) The commission will respond to comments consistent with §116.797 of this title (relating to Notice 

of Final Action on Existing Facility Flexible Permit Applications).

30 TAC § 116.797

Adopted 5/22/2002 

(a) After the public comment period or the conclusion of any notice and comment hearing, the 

commission will send notice by first-class mail of the final action on the existing facility flexible permit 

application to any person who commented during the public comment period or at the hearing, and to 

the applicant. 

(b) The notice must include the following: 

(1) the response to any comments submitted during the public comment period; 

(2) identification of any change in the conditions of the draft permit and the reasons for the change; and 

(3) a statement that any person affected by the decision of the executive director may file a motion to 

overturn under the appropriate procedure in Chapter 50 of this title (relating to Action on Applications 

and Other Authorizations) and may seek judicial review under TCAA, §382.032, relating to Appeal of 

Commission Action. 

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.798

Adopted 5/22/2002 

(a) Fees required. Any person who applies for a permit under this division relating to existing facility 

flexible permits must remit a fee of $450 at the time of application for such permit. If the facility is a 

small business stationary source facility as defined in TCAA, §382.0365(h), the fee shall be $100. 

(b) Payment of fees. All permit fees must be remitted in the form of a check or money order made 

payable to the Texas Natural Resource Conservation Commission and delivered to the Texas Natural 

Resource Conservation Commission, P. O. Box 13088, MC 214, Austin, Texas 78711-3088. Required 

fees must be received before the commission will begin examination of the application. 

(c) Return of fees. Fees must be paid at the time an application for a permit is submitted in accordance 

with this division. If the applicant withdraws the application prior to issuance of the permit, one-half of 

the fee will be refunded, except that the entire fee will be refunded for any such application for which a 

permit by rule in accordance with Chapter 106 of this title (relating to Permits by Rule) is allowed. No 

fees will be refunded after a deficient application has been voided, denied, or after a permit has been 

issued by the commission.

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.799

Adopted 5/22/2002 

(a) Existing facility flexible permits may contain general and special conditions. The holders of existing 

facility flexible permits shall comply with any and all such conditions. Upon a specific finding by the 

executive director that an increase of a particular air contaminant could result in a significant impact on 

Withdrawn with 

10/21/2013 

Submittal except 

for § 116.799(a), 

which was 
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

106 

the air environment, or could cause the facility, group of facilities, or account to become subject to 

review in accordance with §§116.150, 116.151, and 116.160 - 116.163 of this title (relating to 

Nonattainment Review or Prevention of Significant Deterioration Review); or Subchapter C of this 

chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed 

Major Sources (FCAA, Section 112(g), 40 CFR Part 63)), the permit may include a special condition 

which requires the permittee to obtain written approval from the executive director before constructing a 

facility under a standard permit or a permit by rule under Chapter 106 of this title (relating to Permits by 

Rule). 

(b) A pollutant specific emission cap or multiple emission caps and/or individual emission limitations 

shall be established for each air contaminant for all facilities authorized by the existing facility flexible 

permit. 

(c) The following general conditions shall be applicable to every existing facility flexible permit. 

 (1) Sampling requirements. If sampling of stacks or process vents is required, the existing facility 

flexible permit holder shall contact the commission's Office of Compliance and Enforcement, 

Engineering Services Section prior to sampling to obtain the proper data forms and procedures. All 

sampling and testing procedures must be approved by the executive director and coordinated with the 

appropriate regional office of the commission. The existing facility flexible permit holder is also 

responsible for providing sampling facilities and conducting the sampling operations, or contracting 

with an independent sampling consultant. 

 (2) Equivalency of methods. It shall be the responsibility of the existing facility flexible permit holder 

to 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 existing facility flexible 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. 

 (3) Recordkeeping. A copy of the existing facility flexible permit along with information and data 

sufficient to demonstrate continuous compliance with the emission caps and individual emission 

limitations contained in the existing facility flexible permit shall be maintained in a file at the plant site, 

and made available at the request of personnel from the commission or any air pollution control 

program having jurisdiction. For facilities that normally operate unattended, this information shall be 

maintained at the nearest staffed location within the State of Texas specified by the permit holder in the 

permit application. This information may include, but is not limited to, emission cap and individual 

emission limitation calculations based on a 12-month rolling basis and production records and operating 

hours. Additional recordkeeping requirements may be specified in special conditions attached to the 

existing facility flexible permit. Information in the file shall be retained for at least two years following 

the date that the information or data is obtained. 

 (4) Maximum allowable emission rates. An existing facility flexible permit covers only those sources of 

emissions and those air contaminants listed in the table entitled "Emission Sources, Emissions Caps and 

Individual Emission Limitations" attached to the existing facility flexible permit. Existing facility 

flexible permitted sources are limited to the emission limits and other conditions specified in the table 

attached to the existing facility flexible permit. 

 (5) Emission cap readjustment. If a schedule to install additional controls is included in the existing 

facility flexible permit and a facility subject to such a schedule is taken out of service, the emission cap 

contained in the existing facility flexible permit will be readjusted for the period the unit is out of 

service to a level as if no schedule had been established. Unless a special provision specifies the method 

of readjustment of the emission cap, a permit alteration shall be obtained. 

 (6) Maintenance of emission control. The facilities covered by the existing facility flexible permit 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. Notification for upset and 

maintenance shall be made in accordance with §101.6 and §101.7 of this title (relating to Upset 

Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, 

Recordkeeping, and Operational Requirements). 

 (7) Compliance with rules. Acceptance of an existing facility flexible permit by a permit applicant 

constitutes an acknowledgment and agreement that the 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. If more than one state or federal rule or regulation or existing facility flexible 

permit condition are applicable, then the most stringent limit or condition shall govern and be the 

standard by which compliance shall be demonstrated. Acceptance includes consent to the entrance of 

commission employees and agents into the permitted premises at reasonable times to investigate 

returned to the 

Commission by 

letter from EPA 

dated 6/29/2011.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

107 

conditions relating to the emission or concentration of air contaminants, including compliance with the 

existing facility flexible permit. 

(d) There may be additional special conditions attached to an existing facility flexible permit upon 

issuance or amendment of the permit. Such conditions in an existing facility flexible permit may be 

more restrictive than the requirements of this title. 

30 TAC § 116.800

Adopted 5/22/2002 

(a) Emission caps. Each emission cap for a specific pollutant will be established as follows. 

 (1) Emissions will be calculated for each facility based on application of best available control 

technology (BACT) that the commission required or would have required for a facility of the same class 

or type as a condition of issuing a permit or permit amendment 120 months before the submittal of the 

existing facility permit application considering the age and remaining useful life of the facility, 

generally available control technology (GACT) for facilities with a voluntary emission reduction permit 

located in nonattainment areas or near nonattainment areas, or a combination of ten year old BACT and 

GACT at expected maximum capacity. 

 (2) The calculated emissions will be summed. 

(b) Individual emission limitations. An individual emission limitation will be established in the same 

permit for each pollutant not covered by an emission cap for facilities covered by the existing facility 

flexible permit. In addition, an individual emission limitation may be established for a pollutant covered 

by an emission cap when the expected capacity of a facility is less than the expected maximum capacity 

to prevent a facility from exceeding emission levels appropriate for the proposed controls. 

(c) Readjustment of emission cap. If a facility subject to an emission cap is shut down for a period 

longer than 12 months, the emission cap shall be readjusted by lowering the emission cap by an amount 

that the shut down facility contributed to the original calculation of the emission cap. If a new facility is 

brought into the existing facility flexible permit, an emission cap shall be adjusted by modifying the 

emission cap accordingly. 

(d) An emission cap will be readjusted downward for any facility covered by an existing facility flexible 

permit if that facility becomes subject to any new state or federal regulation which would lower 

emissions or require an emission reduction. The adjustment will be made at the time the existing facility 

flexible permit is amended or altered. If an amendment to an existing facility flexible permit is not 

required to meet the new regulation, the permittee must submit a request to alter the permit and include 

information describing how compliance with the new requirement will be demonstrated within 60 days 

of making the change. 

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.801

Adopted 5/22/2002 

If the installation of additional controls is required for a grandfathered facility to meet an emission cap 

for a pollutant, the existing facility flexible permit shall specify an implementation schedule for such 

additional controls. Any such schedule shall require installation of controls before March 1, 2007 for 

facilities located in the East Texas region as defined in §101.330 of this title (relating to Definitions), or 

before March 1, 2008 for facilities located in the West Texas region as defined in §101.330 of this title 

or El Paso County. The permit may also specify how the emission cap will be adjusted if such a facility 

is taken out of service or fails to install the additional control equipment as provided by the 

implementation schedule. 

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.802

Adopted 5/22/2002 

An increase in emissions from operational or physical changes at an existing facility covered by an 

existing facility flexible permit is insignificant for the purposes of state new source review under this 

subchapter, if the increase does not exceed either the emission cap or individual emission limitation for 

the facility covered by the existing facility flexible permit. This section does not apply to an increase in 

emissions from a new facility nor to the emission of an air contaminant not previously emitted by an 

existing facility. 

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.803

Adopted 8/21/2002 

Any application for an existing facility flexible permit must include emissions from the facility resulting 

from any associated dockside vessel operations. These emissions must comply with all rules and 

regulations of the commission and with the intent of the TCAA, including protection of the health and 

property of the public and minimization of emissions to the extent possible, consistent with good air 

pollution control practices. 

Withdrawn with 

10/21/2013 

Submittal.
TECHNICAL SUPPORT DOCUMENT 

Amendments to the New Source Review State Implementation Plan; Flexible Permits Program 

30 TAC Chapter 39 and 30 TAC Chapter 116 

Docket No. EPA-R06-OAR-2013-0542 

108 

30 TAC § 116.804

Adopted 5/22/2002 

Neither operational nor physical changes at an account may result in an increase in actual emissions at 

facilities not covered by the existing facility flexible permit unless those affected facilities are authorized 

in accordance with §116.110 of this title (relating to Applicability). 

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.805

Adopted 5/22/2002 

The owner or operator planning a modification of a facility permitted under this division, relating to 

existing facility flexible permits, must comply with the requirements of Subchapter B of this chapter 

(relating to New Source Review Permits) before work begins on the construction of the modification. 

Amendments and alterations for existing facility flexible permits are subject to the requirements of 

Subchapter B of this chapter. 

Withdrawn with 

10/21/2013 

Submittal.

30 TAC § 116.806

Adopted 5/22/2002 

Permits issued under this division, relating to existing facility flexible permits, will be renewed in 

accordance with the requirements of Subchapter D of this chapter (relating to Permit Renewals). 

Withdrawn with 

 10/21/2013 

Submittal.

30 TAC § 116.807

Adopted 5/22/2002 

The commission delegates to the executive director the authority to take any action on a permit issued 

under this division, relating to existing facility flexible permits. 

Withdrawn with 

 10/21/2013 

Submittal.
Permit No. Company Name Facility Type/Name

21865 Akzo Nobel Polymer Chemical LLC Pasadena Facility

50595 Nustar Logistics Alon USA Southlake Refining Terminal

583A Chevron Phillips Chem Co HDPE Plant

6056 Motiva Enterprise LLC Petroleum Refinery

9708 Diamond Shamrock Refining Co. LP Petroleum Refinery McKee Plant

6825A Premcor Refining Group Inc Valero Port Arthur Refinery

39142 Valero Refining-Texas LP Texas City Refinery

2937 Valero Refining-Texas LP Petroleum Refinery Corpus Christi 

Refinery East Plant

50607 Diamond Shamrock Refining Co. LP Petroleum Refinery Three Rivers

38754 Valero Refining-Texas LP Petroleum Refinery Corpus Christi 

Refinery West Plant

56340 Magellan Pipeline Co Hearne Tank Farm

1296A Magellan Pipeline Terminals LP West Fort Worth (Aledo) Terminal

70042 Magellan Pipeline Terminals LP Bulk Liquids Storage Terminal

4850 Magellan Terminals Holdings LP Galena Park Terminal
54984 Nustar Logistics Texas City Tank Farm

3284 Oiltanking Texas City LP Texas City Terminal

32713 Chevron Phillips Chem Co LP Port Arthur Facility

21356 Oiltanking Beaumont Partners LP Beaumont Terminal

5631 Oiltanking Houston LP Houston Terminal

84802 US Dept of Energy Pantex Plant

28351 Ineos Polymers Inc La Porte Plant

94791 Univar USA Inc. Houston Facility

78189 Chevron Products Midland Facility

49823 Ineos USA LLC La Porte Plant

95 Ineos USA LLC Chocolate Bayou

6606 Flint Hills Resources Corpus Christi LLC Ingleside Facility

19035 Motiva Enterprise LLC San Antonio Terminal

37200 Motiva Enterprise LLC Ft. Worth Terminal

31978 Motiva Enterprise LLC Waco Terminal

1285 Motiva Enterprise LLC Dallas Terminal

48662 Motiva Enterprise LLC Beaumont Terminal
2167 Houston Refining Houston Facility

76070 Enterprise Products Operating Mont Belvieu

8404 Motiva Enterprise LLC Port Arthur Refinery

56253 Shell Pipeline Company LP El Vista Tank Farm (Port Arthur)

56342 Shell Pipeline Company LP Port Arthur Products Station

72760 Plains Pipeline LP Colorado City Facility 

72985 Plains Pipeline LP Crane Facility

73383 Plains Pipeline LP Hendrick Tank Farm

73458 Plains Pipeline LP Wasson Pumping Station

82132 Ineos Americas LLC Port Arthur

72763 Plains Pipeline LP Midland Mesa

47256 BP Products North America Inc Texas City

1176 BP Amoco Chemical Company Texas City 

72712 Plains Pipeline LP Midland Mesa

72984 Plains Pipeline LP Crane Facility

72762 Plains Pipeline LP Midland Mesa
73368 Plains Pipeline LP Monahans Facility 

76165 EI DuPont Neumours El Paso Facility

56121 Citgo Pipeline Company Sour Lake Tank Farm

73357 Plains Pipeline LP McCamey Facility

22433 Marathon Petroleum Company LP Texas City Refinery

6308 Flint Hills Resources Corpus Christi LLC East Refinery

49131 ExxonMobil Oil Corporation Colonial Storage Facility

18897 Western Refining El Paso Facility

72761 Plains Pipeline LP Wichita Falls Facility

32468 Chemical Research & Licensing Program Pasadena Facility

292 Firestone Polymers LLC Orange Facility

50478 Chemicals Incorporated Hatcherville Plant

21262 Shell Oil Company Deer Park

72661 Sunoco Pipeline LP Colorado City Station

56496 Shell Chemical LP Deer Park

6618 The Goodyear Tire & Rubber Company Houston
28340 Explorer Pipeline Company Arlington Pumping Station Pipeline

8803A Flint Hills Resources Corpus Christi LLC West Plant

49138 ExxonMobil Oil Corporation Beaumont 

36845 Alon USA LP Big Spring

18105 Flints Hill Resources Polymers LLC Longview Facility

9868A Phillips 66 Company Borger Facility

3452 ExxonMobil Oil Corporation Baytown Olefins

20211 ExxonMobil Oil Corporation Baytown Chemical

18287 ExxonMobil Oil Corporation Baytown

20432 The Dow Chemical Company Freeport

4437A Chevron Phillips Chemical Company LP Pasadena Facility

22690 Chevron Phillips Chemical Company LP Old Ocean

21918 Chevron Phillips Chemical Company LP Borger Facility

16989 Flint Hills Resources Port Arthur LLC Port Arthur Facility
21548 BAE Systems Tactical Vehicle Systems, LP Coating of Tactical Vehicles

19297 Praxair Texas City Hydrogen Complex Hydrogen for Natural Gas

76044 Formosa Plastics Corp. Pet Coke EGU

93959 US Dept of the Army Ft. Bliss

8996 Holcim Texas LP Cement Plant

77410 Leedo Manufacturing Co LP East Bernard Plant

70861 Sandy Creek Energy Associates LP Energy Station

81030 Toyo Ink International Corp Bryan Manuf. Facility

48056 UT Health Science Center San Antonio San Antonio 

56685 850 Pine Street Inc Island Park Fabrication Plant

74886 The Sherwin Williams Company Garland Facility

51770 LCRA Coal-fired Power Plant

31914 

56216 Sweeny Cogeneration LP Natural Gas Fired Boilers

47724 Trane US Inc. Manufacturer of A/C systems

77679 Nacogdoches Power LLC Biomass boilers for electric utility

34184 CB&I Houston Facility

71739 Cobisa-Greenville Greenville Facility
56233 Campbell Soup Supply Company LLC Paris Facility

74599 Forbo Adhesives LLC Dallas Facility

6081 General Aluminum Company of Texas LLC Carrollton Facility

72302 Lonestar Fiberglass Pools LLC Kingsbury Facility

17210 NCI Group Inc Houston Facility

18495 Gardner Glass Products Inc Huntsville Facility

71623 3M Company Brownwood Facility

16862 Lockheed Martin Corporation Air Force Plant 4 (Ft. Worth)

49230 Tex-Trude LP Channelview

53418 Stewart & Stevenson LLC Houston

40933 Goodyear Tire & Rubber Company Tyler Facility

80987 Rio Grande Mining Company Shafter Mine

664 EBAA Iron Inc Eastland Facility

1862A PPG Industries, Inc La Porte Facility
18330 Dal-Tile Corporation Dallas Facility

21318 Rangen Inc Angleton Feedmill

24679 Norbord Texas Jefferson Jefferson Facility

9958 Norbord Texas Nacogdoches Inc Nacogdoches Facility

103781 Sunoco Pipeline LP Ringgold Station

1889A CITGO PETROLEUM NORTH HOUSTON TERMINAL

19079 FLINT HILLS RESOURCES AUSTIN TERMINAL

19082 SAN ANTONIO TERMINAL

74485 PORT ARTHUR LNG LP

83149 MUSTANG RIDGE TERMINAL

22104 MITSUBISHI CATERPILLAR FORKLIFT AMERICA INC