Buddy Garcia, Chairman 

Larry R. Soward, Commissioner 

Bryan W. Shaw, Ph.D., Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

June 13, 2008 

Mr. Larry Starfie1d 

Deputy Regional Administrator 

United States Environmental 

Protection Agency Region 6 

1445 Ross Avenue Suite 1200 

Dallas, Texas 75202 

Re: Use ofPermits By Rule to Modify an Existing New Source Review Permit 

Dear Mr. Starfield: 

I'm writing in response to the letters from U. S. Environmental Protection Agency (EPA) Region 

6 and ongoing discussions between EPA and the Texas Commission on Environmental Quality 

(TCEQ) staff regarding Texas' flexible permit program. This response addresses the use of 

Permits by Rul~ (PBR) as an authorization mechanism to modify an existing New SouJ;'ce 

Review (NSR) permit. The concerns expressed by the EPA are broader in applicability than the 

flexible permit program. The concerns have consequences for other parts of the NSR permitting 

programs in Texas and have the potential to affect both major NSR and minor NSR permit 

reviews. The issue ofPBR use will need to be resolved before the concerns which are specific to 

the flexible permitting program can be-addressed. 

The Federal Rules provide flexibility for a state to develop its own minor NSR program. The 

PBRs are an authorization mechanism under Texas' Minor NSR program. The use of PBRs has 

been a long-standing authorization mechanism within the TCEQ's rules. Initially contained 

within Chapter 116 as "Standard Exemptions," these authorizations were later moved into their 

own chapter within the TCEQ's rules. They are now codified in Chapter 106 (since 1996) and 

are called Permits by Rule. 

The PBRs implement §382.05196 (and previously §382.057) of the Texas Clean Air Act, which 

provides that celiain types of facilities or changes within facilities which will not make a 

significant contribution of air contaminants to the at:t;l1osphere may be exempt from obtaining a 

construction permit or amending an existing construction permit if certain conditions are met. 

Significant contribution of air contaminants is described in Subchapter A (General 

Requirements) of Chapter 106, which is State Implementation Program approved. The specific 

conditions (the actual PBR language and requirements) are in Subchapters B - X. 

P.O. Box 13087 • Austin, Texas 78711-3087 " 512-239-1000 • Internet address: www.tceq.state.tx.us 

printed on recycled paper using .soy-bused inl;; 
Mr. Larry Starfield 

Page 2 

June 13,2008 

New facilities or changes to facilities which make a significant contribution of air contaminants 

to the atmosphere are not eligible to use PBRs. The PBRs cannot authorize a new major source, 

nor can a PBR be used to authorize a major modification of an existing major source. Likewise, 

the PBRs cannot be used to authorize a new facility which is subj ect to case-by-case maximum 

available control technology r~views under Federal Clean Air Act §112(g). 

The TCEQ, in some cases, has limited the use of PBRs when off property impact concentrations 

and the condition of the surrounding area (related to the pollutant of concern), warrant such a 

measure. These limitations are usually placed within the special conditions of an NSR permit 

and usually apply to the entire plant site. An example would be for benzene use in areas 

considered to be "watch areas." 

For TCEQ to consider changing its rules, TCEQ needs EPA to provide a detailed legal basis for 

excluding PBR usage at major sources, using PBRs to modify. existing NSR permits, or using 

PBRs to authorize limited categories of maintenance~ startup, and shutdown emissions. Changes 

to TCEQ rules may require statutory changes which would need to be presented to the Texas 

Legislature. 

The TCEQ is willing to work with the EPA to gain an understanding ofEPA's specific concerns 

as they relate to and affect our air permitting program as a whole. After we have reached an 

understanding regarding the overall best available control technology approach, we can then 

begin to address concerns that are specific to the flexible permitting program. 

We appreciate the opportunity to discuss these concerns and look forward to reaching a position 

of clarity so that we can proceed in addressing your questions related to the flexible permit 

program. 

Sincerely, 

~dGlenn Shankle; Executive Director 

Texas Commission on Environmental Quality 

cc:	 Mr. Dan Eden, Deputy Director, Office ofPermitting, Remediation and Registration 

Ms. Stephanie Bergeron Perdue, Deputy Director, Office ofLegal Services 

Mr. John Sadlier, Deputy Director, Office of Compliance and Enforcement 

Mr. Richard A. Hyde, P. E., Director, Air Permits Division· .