Texas Revisions to 30 TAC Chapter 116, Control of Air Pollution 

by Permits for New Construction or Modification, Subchapter H, 

Permits for Grandfathered Facilities, submitted to EPA July 31, 

2002. 

This document contains only the revisions to Chapter 116 

adopted by the Texas Natural Resource Conservation 

Commission (TNRCC) on May 22, 2002, effective June 12, 2002, 

and submitted to EPA July 31, 2002. 

The entire submittal is available in this Regulations.gov web site 

in the following dockets: 

 docket EPA-R06-OAR-2005-TX-0025, document EPAR06-OAR-2005-TX-0025-0005; and 

 docket EPA-R06-OAR-2005-TX-0031, documents EPAR06-OAR-2005-TX-0031-0009 to EPA-R06-OAR-2005-

TX-0031-0013. 
Robert J. Huston, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Kathleen Hartnett White, Commissioner 

Jeffrey A Saitas, Executive Director 

02 AUG -1 AH 9:23 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

July 31, 2002 

Mr. Gregg Cooke 

Regional Administrator 

Protecting Texas by Reducing and Preventing Pollution 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mr. Cooke: 

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On May 22, 2002, the Texas Natural Resource Conservation Commission (Commission) adopted 

revisions to the State Implementation Plan (SIP). 

The Commission adopted new and amended sections to Chapter 39, Public Notice; and new and 

amended sections to Chapter 116, Control of Air Pollution by Permits for New Construction or 

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-Modification. The adopted changes to Chapter 39 and Chapter 116 concern requirements and _. 

procedures for the permitting of grandfathered facilities and an incentive program for the reduction of 

emissions of nitrogen oxides from ~ertain grandfathered reciprocating internal combustion engines 

associated with pipelines. The new and amended sections of Chapter 39; all sections of Chapter 116, 

Subchapter H except §116.776; and the new and amended sections of Chapter 116, Subchapters A and 

I are being submitted as a revision to the SIP. 

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the 

public hearing, and the accompanying order. I look forward to your expeditious approval of these SIP 

revisions. 

ly, 

Chairman 

RJH/js 

cc: The Honorable Rick Perry, Governor of Texas 

Ms. Wendy Wyman, Environmental and Natural Resources Policy Director, Office of the 

Governor ' 

Mr. Jeffrey A. Saitas, P.E., Executive Director, Texas Natural Resource Conservation 

Commission 

Enclosures 

' . P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tnrcc.state.tx.us 
Mr. Gregg Cooke 

Page2 

bee: Mr. Randolph Wood, Deputy Director, Office of Environmental Policy, Analysis, and 

Assessment 

Mr. Jim Muse, Director, Policy and Regulations Division 

Ms. Heather Evans, Strategic Assessment Division 

Ms. Jill Burditt, Policy and Regulations Division 

OEPAA file 
Texas Natural Resource 

Conservation Commission 

Public Hearings 

January 22-24, 28, 29, 2002 

Concerning revisions to 30 TAC Chapter 116, 

Subchapters A, H, and I, Control of Air Pollution by Permits for 

New Construction or Modification; and Chapter 39, Subchapter H 

and Subchapter K, concerning Public Notice; and a revision 

to the state implementation plan 

Rule Log Number 2001-076-116-AI 
INTRODUCTION 

The Texas Natural Resource Conservation Commission (commission) held public hearings to receive 

testimony regarding revisions to 30 TAG Chapter 39 and Chapter 116, and to the state implementation plan 

(SIP). The public hearings were held at the following times and locations: January 22, 2002, 7:00p.m., 

Tyler Junior College Regional Training and Development Center, Room 104, 1530 South Southwest Loop 

323, Tyler; January 23, 2002, 7:00 p.m., City of Houston, City Council Chambers, 2nd Floor, 901 Bagby, 

Houston; January 24, 2002, 7:00 p.m., City of Odessa, City Council Chambers; 5th Floor, 411 West 8th 

Street, Odessa; January 28, 2002, 6:30 p.m., City of Irving, Central Library Auditorium, 801 West Irving·. 

Boulevard, Irving; and January 29, 2002, 2:00 p.m., Texas Natural Resource Conservation Commission, 

12100 North 1-35, Building F, Room 2210, Austin. 

This volume concerns new and amended sections to Chapter 39, Public Notice; and new and amended 

sections to Chapter 116, Control of Air Pollution by Permits for New Construction or Modification. The 

adopted changes to Chapter 39 and Chapter 116 concern requirements and procedures for the permitting . 

of grandfathered facilities and an incentive program for the reduction of emissions of nitrogen oxides from 

certain grandfathered reciprocating internal combustion engines associated with pipelines. The new and 

amended sections of Chapter 39 are being submitted to the United States Environmental Protection Agency 

(EPA) as a revision to the state implementation plan (SIP). All sections of Subchapter H except §116.776, 

are being submitted to the EPA as a revision to the SIP. The new and amended sections of Subchapter A 

and I are also being submitted to the EPA as a revision to the SIP. 

Written comments were accepted through January 29, 2002. All testimony and comments have been 

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

and is divided into the following four sections: 
o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations 

Additional copies of this hearing record are maintained in the TNRCC central office at 12100 Park 35 Circle, 

Austin, Texas 78753. For further information, please contact Jill Burditt at (512) 239-0560. 
STAFF 

RECOMMENDATIONS 
CHAPTER 116: CONTROL OF AIR POLLUTION BY PERMITS 

FOR NEW CONSTRUCTION OR MODIFICATION 

SUBCHAPTER A: DEFINITIONS 

§116.10, §116.18 

§116.10. General Definitions. 

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

commission have the meanings commonly ascribed to them in the field of air pollution control: In 

addition to the terms which are defined by the TCM, and in §1 01.1 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. 

(1) Actual emissions- The highest rate of emissions of an air contaminant actualiy 

achieVed from a qualified facility within the 120-month period prior to the change. This rate cannot 

exceed any applicable federal or state emissions limitation. This definition applies only when 

determining whether there has been a net increase in allowable emissions under § 116.116( e) of this title 

(relating to Changes to Facilities). 

(2) Allowable emissions -The authorized rate of emissions of an air contaminant from 

a facility as determined in accordance with this section. This rate cannot exceed any applicable state or 

federal emissions limitation. This definition applies only when determining whether there has been a net 

increase in allowable emissions under §116.116(e) of this title. 

(A) Permitted facility - For a facility with a permit under this chapter, the 

allowable emissions shall be any emission limit established in the permit on a MAERT and any emission 

1 
limit contained in representations in the permit application which was relied upon in issuing the permit, 

plus any allowable emissions authorized under Chapter 106 of this title (relating to Permits by Rule). 

(B) Facility permitted by rule - For a facility operating under Chapter 106 of 

this title, the allowable emissions shall be the least of the emissions rate allowed in Chapter 106, 

Subchapter A of this title (relating to General Requirements), the emissions rate specified in the 

applicable permit by rule, or the federally enforceable emission rate established on a Pl-8 form. 

(C) Qualified grandfathered facility- For a qualified grandfathered·facility, the 

allowable emissions shall be the maximum annual emissions rate after the implementation of any air 

pollution control methods to become a qualified facility, plus ·1 0% of the maximum annual emissions rate 

prior to the implementation of such control methods, but in no case shall the allowable emissions be 

greater than the maximum annual emissions rate prior to the implementation of such control methods. 

The maximum annual emissions rate is the emissions rate at the maximum annual capacity according to 

the physical or operational design of the facility, data from actual operations over a period of no more 

than 12 months that demonstrates the maximum annual capacity, or other information that demonstrates 

the maximum annual capacity. Except where a grandfathered facility has been modified, the allowable 

emissions for the modification shall be determined as a permitted facility. 

(D) Standard permit facility - For a facility authorized by standard permit, other 

than §116.617(2) of this title (relating to Standard Permits for Pollution Control Projects), the allowable 

emissions shall be the maximum emissions rate represented in the registration to use the standard 

permit. 

(E) Special exemption facility - For a facility operating under a special 

exemption, the allowable emissions shall be the emissions rate represented in the original special 

exemption request. 

2 
(F) The allowable emissions for a qualified facility shall not be adjusted by the 

voluntary installation of controls. 

(3) Best available control technology (BACT) - BACT with consideration given to the 

technical practicability and the economic reasonableness of reducing or eliminating emissions from the 

facility. 

(4) Facility -A discrete or identifiable structure, device, item, equipment, or enclosure 

that constitutes or contains a stationary source, including appurtenances other than emission·control 

equipment. A mine, quarry, well test, or road is not a facility. 

(5) Federally enforceable- All limitations and conditions which are enforceable by the 

EPA, including: 

(A) those requirements developed under Title 40 of the Code of Federal 

Regulations (CFR) Parts 60 and 61 (40 CFR 60 and 61); 

(B) Chapter 113, Subchapter C of this title (relating to National Emission 

Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR 63)); 

(C) requirements within any applicable state i~plementation plan (SIP); 

(D) any permit requirements established under 40 CFR §52.21; 

(E) any permit requirements established under regulations approved under 40 

CFR Part 51, Subpart I, including permits issued under the EPA-approved program that is incorporated 

into the SIP and that expressly requires adherence to any permit issued under such program; or 

3 
(F) any permit requirements established 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)). 

(6) Grandfathered facility -Any facility that is not a new facility and has not been 

modified since August 30, 1971. 

(7) Lead smelting plant - Any facility which produces purified lead by melting and 

separating lead from metal and nonmetallic contaminants and/or by reducing oxides into elemental lead. 

Raw materials consist of lead concentrates, lead-bearing ores or lead scrap, dresses, or other leadbearing residues. Additional processing may include refining and alloying. A facility which only remelts 

lead bars or ingots for casting into lead products is not a lead smelting plant. 

(8) Maximum allowable emissions rate table (MAERT) - A table included with a 

preconstruction permit issued under this chapter that contains the allowable emission rates established 

by the permit for a facility. 

(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 any air contaminant emitted by the 

facility into the atmosphere or that results in the emission of any air contaminant not previously emitted. 

The term does not include: 

(A) insignificant increases in the amount of any air contaminant emitted that is 

authorized by one or more commission exemptions; 

(B) insignificant increases at a permitted· facility; 

4 
(C) maintenance or replacement of equipment components that do not increase 

or tend to increase the amount or change the characteristics of the air contaminants emitted into the 

atmosphere; 

(D) an increase in the annual hours of operation unless the existing facility has 

received a preconstruction permit or has been exempted, under the TCAA, §382.057, from 

preconstruction permit requirements; 

(E) a physical change in, or change in the method of operation of, a facility that 

does not result in a net increase in allowable emission of any air contaminant and that does not result in 

the emission of any air contaminant not previously emitted, provided that the facility: 

(i) has received a preconstruction permit or permit amendment or has 

been exempted under the TCAA, §382.057, from preconstruction permit requirements no earlier than 

120 months before the change will occur; or 

(ii) uses, regardless of whether the facility has received a 

preconstruction permit or permit amendment or has been exempted under the TCAA, §382.057, an air 

pollution control method that is at least as effective as the 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 change will occur; 

(F) a physical change in, or change in the method of operation of, a facility 

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

(G) a change in the method of operation of a natural gas processing, treating, or 

compression facility connected to or part of a natural gas gathering or transmission pipeline which does 

5 
not result in an annual emission rate of any air contaminant in excess of the volume emitted at the 

maximum designed capacity, provided that the facility is one for which: 

(i) construction or operation started on or before September 1, 1971, 

and at which either no modification has occurred after September 1, 1971, or at which modifications 

have occurred only under Chapter 106 of this title; or 

(ii) construction started after September 1, 1971, and before March 1, 

1972, and which registered in accordance with TCAA, §382.060, as that section existed prior·to 

September 1, 1991. 

(1 0) New facility- A facility for which construction is commenced after August 30, 

1971, and no contract for construction was executed on or before August 30, 1971, and that contract 

specified a beginning construction date on or before February 29, 1972. 

(11) New source- Any stationary source, the construction or modification of which is 

commenced after March 5, 1972. 

(12) Nonattainment area- A defined region within the state which is designated by the 

EPA as failing to meet the national ambient air quality standard for a pollutant for which a standard 

exists. The EPA will designate the area as nonattainment under the prqvisions of FCAA, §107(d). 

(13) Public notice- The public notice of application for a permit as required in this 

chapter. 

(14) Qualified facility- An existing facility that satisfies the criteria of either paragraph 

(9)(E)(i) or (ii) of this section. 

6 
( 15) Source -A point of origin of air contaminants, whether privately or publicly owned . 

or operated. 

§116.18. Electric Generating Facility Permits Definitions. 

The following words and terms, when used in Subchapter I of this chapter (relating to Electric 

Generating Facility Permits) shall have the following meanings, unless the context clearly indicates 

otherwise. 

(1) Allowance- As defined in §101.330(1) of this title (relating to Definitions). 

(2) Capacity factor - Either: 

(A) the ratio of an electric generating facility's (EGF) actual annual electric 

output (expressed in megawatt-hours) to the EGFs nameplate capacity times 8,760 hours; or 

(B) the ratio of an EGFs annual heat input (in millions of British thermal units 

(MMBtu)) to the EGF's maximum design heat input (in MMBtu per hour) times 8,760 hours. 

(3) Coal -As defined in §1 01.330(6) of this title. 

(4) Coal-fired- As defined in §101.330(7) of this title. 

(5) Compliance account- As defined in §1 01.330(8) of this title. 

(6) Control period -As defined in §1 01.330(9) of this title. 

7 
(7) Electing EGF- As defined in §101.330(11) of this title. 

(8) Electric generating facility (EGF)- As defined in §101.330(12) of this title. 

(9) Grandfathered EGF- As defined in §101.330(14) of this title. 

(1 0) Nameplate capacity- The maximum electrical output (expressed in megaw.atts) 

that an EGF can sustain over a specified period of time when not restricted by seasonal or other 

deratings. 

(11) Natural gas-fired EGF- For purposes of Subchapter I of this chapter, an EGF that 

was designed to burn either natural gas or an EGF that was designed to burn both natural gas and fuel 

oil. 

(12) Normal Annual Operating Schedule- For the purposes of §116.911 (f)(1) of this 

title (relating to Electric Generating Facility Permit Application), the maximum number of operating hours 

for an EGF in any 12 consecutive month period between January 1, 1997 and December 31, 1999. For 

sites with more than one EGF, the owner or operator may use the EGF with the highest number of 

operating hours. 

( 13) Peaking unit -An EGF that has: 

(A) an average capacity factor of no more than 10% during the past three 

calendar years; and 

(B) a capacity factor of no more than 20% in each of those calendar years. 

8 
(14) Person- As defined in §101.330(17) of this title. 

9 
SUBCHAPTER H: PERMITS FOR GRANDFATHERED FACILITIES 

DIVISION 1: GENERAL APPLICABILITY 

§§116.770 -116.772 

§116.770. Requirement to Apply. 

The owner or operator of a grandfathered facility must apply for a permit to operate that facility 

under this chapter, qualify for a permit by rule under Chapter 106 of this title (relating to Permits by 

Rule), or submit a notice of shutdown before September 1, 2003 for facilities located in the East Texas 

region as defined in §101.330 of this title (relating to Definitions), and before September 1, 2004 for 

facilities located in the West Texas region as defined in §101.330 of this title or El Paso County. 

§116.771. Implementation Schedule for Additional Controls. 

(a) If the installation of additional controls is required for a grand fathered facility to meet an 

emission limit for a pollutant, the permit shall specify an implementation schedule for such additional 

controls. Any such schedule shall require installation and operation of controls before March 1, 2007 for 

facilities located in the East Texas region as defined in §1 01.330 of this title (relating to Definitions) or 

before March 1, 2008 for facilities located in the West Texas region as defined in §1 01.330 of this title or 

El Paso County. 

(b) The owner or operator of a grandfathered facility. that does not obtain a permit within 12 

months of receipt by the commission of an administratively complete application for a permit may 

petition the commission for an extension of the time period for the installation of controls under 

subsection (a) of this section. The commission may grant not more than one extension for a facility, for 

an additional period of not more than 12 months, if the commission finds good cause for the extension. 

10 
§116.772. Notice of Shutdown. 

(a) The owner or operator of a grandfathered facility who chooses to shut the facility down 

rather than obtain a permit under this chapter or qualify for a permit by rule under Chapter 106 of this 

title (relating to Permits by Rule), shall notify the executive director in writing by completing Form PI1GSD, Notice of Shutdown, prior to the deadlines specified in §116.770 or §116.774 of this title (relating 

to Requirement to Apply; and Eligibility for Small Business Stationary Source Permits). The owner or 

operator of a grandfathered facility who submits a Form PI-1GSD, Notice of Shutdown, prior to the 

deadlines specified in §116.770 or §116.774 of this title shall cease emitting air contaminants by: 

( 1) March 1, 2007, if the facility is not eligible for a small business stationary source 

permit and is located in the East Texas region as defined in §1 01.330 of this title (relating to Definitions); 

or 

(2) March 1, 2008, if the facility is eligible for a small business stationary source permit 

or is located in the West Texas region as defined in §101.330 of this title or El Paso County. 

{b) The owner or operator of a grandfathered facility who applies for a permit prior to the 

deadlines specified in § 116.770 or § 116.77 4 of this title, but prior to permit issuance, decides to shut the 

facility down must submit a Form Pl-1 GSD, Notice of Shutdown, prior to withdrawal of the permit 

application and must cease emitting air contaminants by the date specified in subsection (a)(1) or (2) of 

this section. 

(c) The owner or operator of a facility that has been shut down and for which a Notice of 

Shutdown has been submitted must obtain the proper authorization under this chapter or Chapter 106 of 

this title prior to operating the facility. 

11 
(d) The Notice of Shutdown shall include, as a minimum, an identification of the facility to be 

shut down, the date the owner or operator intends to cease operating the facility, and an inventory of the 

type and amount of emissions that will be eliminated when the facility ceases to operate. 

12 
DIVISION 2: SMALL BUSINESS STATIONARY SOURCE PERMITS, 

PIPELINE FACILITIES PERMITS, AND EXISTING FACILITY PERMITS 

§§116.774, 116.775, 116.777, 116.779- 116.781, 116.783, 116.785-116.788, 116.790 

§116.774. Eligibility for Small Business Stationary Source Permits. 

(a) The owner or operator of a grandfathered facility located at a small business stationary 

source, as defined in TCAA, §382.0365(h), and which is not required _to report to the commission under 

TCAA, §382.014 may apply for a small business stationary source permit before September 1, 2004. 

(b) The deadlines contained in §116.770 of this title (relating to Requirement to Apply) and 

§116.771 of this title (relating to Implementation Schedule for Additional Controls) do not apply to 

facilities eligible to apply for a small business stationary source permit. Any grandfathered facility, 

including any facility for which the owner or operptor has submitted a notice of shutdown under § 116.772 

of this title (relating to Notice of Shutdown), located at a small business stationary source may not emit 

air contaminants on or after March 1, 2008, unless the facility is permitted, or has a permit application 

pending under this chapter, or has a registration or pending registration for a permit by rule under 

Chapter 106 of this title (relating to Permits by Rule). 

(c) Applications for a small business stationary source permit shall be submitted under the seal 

of a Texas licensed professional engineer, if required by §116.110(e) of this title (relating to 

Applicability). 

(d) The owner or operator of the grandfathered facility, group of facilities, or account is 

responsible for applying for the small business stationary permit and for complying with this subchapter. 

13 
§116.775. Eligibility for Pipeline Facilities Permits. 

{a) The owner or operator of a grandfathered reciprocating internal combustion engine or group 

of engines that is a part of processing, treating, compression, or pumping facilities connected to or part 

of a gathering or transmission pipeline may apply for a pipeline facilities permit. 

(b) Applications for a pipeline facilities permit shall be submitted under the seal of a Texas 

licensed professional engineer, if required by § 116.11 0( e) of this title (relating to Applicability). 

(c) The owner or operator of the grandfathered facility, group of facilities, or account is 

responsible for applying for the pipeline facilities permit and for complying with this subchapter. 

(d) The owner or operator of more than one grandfathered reciprocating internal combustion 

engine may apply for a pipeline facilities permit for a single grandfathered reciprocating internal 

combustion erigine or a group of the grandfathered reciprocating internal combustion engiries connected 

to or part of a gathering or transmission pipeline. 

§116.777. Eligibility for Existing Facility Permits. 

(a) The owner or operator of a grandfathered facility may apply for an existing facility permit. 

(b) Applications for an existing facility permit shall be submitted under the seal of a Texas 

licensed professional engineer, if required by §116.110(e) of this title (relating to Applicability). 

(c) The owner or operator of the grandfathered facility, group of facilities, or account is 

responsible for applying for the existing facility permit and for complying with this subchapter. 

14 
§116.779. Applications for Small Business Stationary Source·Permits, Pipeline Facilities Permits, 

or Existing Facility Permits. 

(a) Any application for a small business stationary source permit, a pipeline facilities permit, or 

an existing facility permit must include a completed Form Pl-1 G, Grandfathered Facility Permit 

Application. The Form Pl-1 G 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 a 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 grandfathered 

facility 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 permit may have provisions for measuring the 

emission of air contaminants as determined by the commission. These provisions 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," portable analyzers, or emissions calculations if a known process variable is monitored. 

(3) 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 EPA under authority granted 

under FCAA, § 111, as amended. 

(4) 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 

15 
applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA under authority granted 

under FCAA, §112, as amended. 

(5) 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 EPA under FCAA, §112, or as listed in 

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)). 

(6) Performance demonstration. The grandfathered facility will achieve the 

performance specified in the permit application. The commission may require the applicant to submit 

additional engineering data after the permit has been issued in order to demonstrate further that the 

facility will achieve the performance specified in the permit. In addition, the commission may require 

initial compliance testing to determine ongoing compliance through engineering calculations based on 

measured process variables, parametric or predictive monitoring, stack monitoring, or stack testing. 

(7) Nonattainment review. A grandfathered facility in a nonattainment area shall comply 

with all applicable requirements under Subchapter 8, Division 5 of this chapter (relating to 

Nonattainment Review). 

(8) Prevention of Significant Deterioration (PSD) review. A grandfathered facility in an 

attainment area shall comply with all applicable requirements under Subchapter 8, Division 6 of this 

chapter (relating to Prevention of Significant Deterioration Review). 

(9) Air dispersion modeling or ambient monitoring. The commission may require 

computerized air dispersion modeling and/or ambient monitoring to determine the air quality impacts 

from the grandfathered facility. 

16 
(10) Federal standards of review for constructed or re·constructed major sources of 

hazardous air pollutants. If the grandfathered facility is an affected source as defined in §116.15(1) of 

this title (relating to Section 112(g) Definitions), the affected source 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, Section 112(g), 40 CFR Part 63)). 

(11) Application content. In addition to any other requirements of this subchapter, the 

applicant shall: 

(A} identify each facility to be included in the permit; 

(B) identify the air contaminants emitted; and 

(C) provide emission rate calculations. 

(b) In addition to the requirements of subsection (a) of this section, an application for a pipeline 

facilities permit shall propose a control method and identify the date by which the control method will be 

implemented. The proposed control method shall demonstrate compliance with the following 

requirements. 

(1) Facilities located in the East Texas region as defined in §101.330 of this title 

(relating to Definitions), shall demonstrate that each grandfathered reciprocating internal combustion 

engine will achieve at least a 50% reduction of the hourly emissions rate of nitrogen oxides (NOx), 

expressed in terms of grams per brake horsepower-hour (g/bhp-hr). The commission may also require a 

50% reduction of the hourly emissions rate of volatile organic compounds (VOC), expressed in terms of 

g/bhp-hr for each engine located in the East Texas region as defined in §1 01.330 of this title. 

17 
(2) The commission shall require up to a 20% reduction of the hourly emissions rate of 

NOx and may also require up to a 20% reduction of the hourly emissions rate of VOC, both expressed in 

terms of g/bhp-hr, from grandfathered reciprocating internal combustion engines located in the West 

Texas region as defined in §101.330 of this title or El Paso County. 

(3) Notwithstanding the requirements of paragraphs (1) and (2) of this subsection, the 

owner or operator of more than one grandfathered reciprocating internal combustion engine may 

average the reductions achieved among more than one reciprocating internal combustion engine 

connected to or part of a gathering or transmission pipeline in order to demonstrate the reductions 

required in paragraphs (1) and (2) of this subsection. If the owner or operator chooses to average 

among engines located in both the East and West Texas regions as defined in §1 01.330 of this title it 

must be demonstrated that the sum of the reductions achieved from all of the engines located in the 

East Texas region as defined in §1 01.330 of this title will achieve the reductions required in paragraph 

(1) of this subsection. For purposes of this paragraph, El Paso County is included in the West Texas. 

region as defined in §101.330 of this title. 

(4) If the emissions reductions required by paragraphs (1) and (2) of this subsection will 

be achieved by averaging reductions as allowed by paragraph (3) of this subsection, the average may 

not include emission reductions achieved in order to comply with any other state or federal law. If the 

emission reductions required by paragraphs (1) and (2) of this subsection will be achieved at one 

account, the reduction may include emission reductions achieved since January 1, 2001 in order to 

comply with another state or federal law. 

(c) In addition to the requirements of subsection (a) of this section, an application for an existing 

facility permit shall propose 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 

18 
submittal of the existing facility permit application, considering the age and remaining useful life of the 

facility. The application shall identify the date by which the control method will be implemented. 

§116.780. Public Participation for Initial Issuance of Pipeline Facilities Permits and Existing 

Facility Permits. 

(a) An applicant for a pipeline facilities permit or an existing facility permit shall publish a 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 pipeline facilities permit application or the 

existing facility permit 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 request for a notice and 

comment hearing must be made in writing during the 30-day public comment period. 

(c) Any notice and comment hearing regarding initial issuance of a pipeline facilities permit or 

an existing facility permit shall be conducted in accordance with the procedures in § 116.781 of this title 

(relating to Notice and Comment Hearings for Initial Issuance of Pipeline Facilities Permits and Existing 

Facility 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 pipeline facilities permit or an existing facility permit will be conducted in accordance with 

the procedures in §116.783 of this title (relating to Notice of Final Action on Pipeline Facilities Permit 

Applications and Existing Facility Permit Applications). 

19 
(e) A person affected by a decision to issue or deny a pipeline facilities permit or an existing 

facility permit may seek review, as appropriate, 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. 

§116.781. Notice and Comment Hearings for Initial Issuance of Pipeline Facilities Permits and 

Existing Facility Permits. 

(a) The notice and comment hearing requirements apply only to the initial issuance of a pipeline 

facilities permit or an existing facility 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 agrandfathered 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 fo~ 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 

20 
(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; 

21 
(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. 

U) The commission will respond to comments consistent with §116.783 of this ti.tle (relating to 

Notice of Final Action on Pipeline Facilities Permit Applications and Existing Facility Permit Applications). 

§116.783. Notice of Final Action on Pipeline Facilities Permit Applications and Existing Facility 

Permit Applications. 

(a) After the public comment period expires or the conclusion of any notice and comment 

hearing, the commission will send notice by first-class mail of the final action on the pipeline facilities 

permit application or the existing facility 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; 

22 
(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. 

§116.785. Permit Fee. 

(a) Fees required. Any person who applies for a permit under this division relating to small 

business stationary source permits, pipeline facility permits, and existing facility 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. 0. 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. 

23 
§116.786. General and Special Conditions. 

(a) Permits issued under this division relating to small business stationary source permits, 

pipeline facility permits, and existing facility permits may contain general and special conditions. The 

holders of a permit under this division shall comply with any and all such conditions. 

(b) General conditions. Holders of permits issued under this division shall comply with the 

following general conditions, regardless of whether they are specifically stated within the permit 

document. 

(1) Sampling requirements. 

(A) If sampling is required, the permit holder shalf contact the commission's 

Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and 

procedures. 

(B) All sampling and testing procedures must be approved by the executive 

director and coordinated with the regional representatives of the commission. 

(C) The 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. The permit holder must demonstrate or otherwise justify 

the equivalency of emission control methods, sampling or other emission testing methods, and 

monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. 

Alternative methods shalf 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. 

24 
(3) Recordkeeping. The permit holder shall: 

(A) maintain a copy of the permit along with records containing the information 

and data sufficient to demonstrate compliance with the permit, including production records and 

operating hours; 

(B) keep all required records in a file at the plant site. If, however, the facility 

normally operates unattended, records shall be maintained at the nearest staffed location within the 

State of Texas as specified in the application; 

(C) make the records available at the request of personnel from the 

commission or any air pollution control program having jurisdiction; 

(D) comply with any additional recordkeeping requirements specified in special 

conditions attached to the permit; and 

(E) retain information in the file for at least two years following the date that the 

information or data is obtained. 

(4) Maximum allowable emission rates. The total emissions of air contaminants from 

any of the sources of emissions must not exceed the values stated on the table attached to the permit 

entitled "Emission Sources--Maximum Allowable Emission Rates." 

(5) Maintenance of emission control. The permitted facilities shall not be operated 

unless all air pollution emission capture and abatement equipment is maintained in good working order 

and operating properly during normal facility operations. The permit holder shall provide notification for 

upset and maintenance in accordance with §1 01.6 and §1 01.7 of this title (relating to Upset Reporting 

25 
and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, 

and Operational Requirements). 

(6) Compliance with rules. 

(A) Acceptance·of a permit by an applicant constitutes an acknowledgment and 

agreement that the permit holder will comply with all rules, regulations, and orders of the commission 

issued in conformity with the TCAA and the conditions precedent to the granting of the permit. 

(B) If more than one state or federal rule or regulation or permit condition are 

applicable, the most stringent limit or condition shall govern and be the standard by which compliance 

shall be demonstrated. 

(C) Acceptance includes consent to the entrance of commission employees and 

agents into the permitted premises at reasonable times to investigate conditions relating to the emission 

or concentration of air contaminants, including compliance with the permit. 

(c) Special conditions. The holders of permits issued under this division shall comply with all 

special conditions contained in the permit document. 

(1) Special conditions may be attached to a permit that are more restrictive than the 

requirements of this title. 

(2) Special conditions for written approval. 

(A) The executive director may require as a special condition that the permit 

holder obtain written approval before constructing a source under: 

26 
(i) a standard permit in accordance with Subchapter F of this chapter 

(relating to Standard Permits); or 

(ii) a permit by rule in accordance with Chapter 106 of this title (relating 

to Permits by Rule). 

(B) Such written approval may be required if the executive director specifically 

finds that an increase of a particular pollutant could either: 

(i) result in a significant impact on the air environment; or 

(ii) cause the facility to become subject to review in accordance with: 

(I) 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)); or 

(II) the provisions in §116.150 and §116.151 of this title 

(relating to Nonattainment Review), and §§116.160- 116.163 of this title (relating to Prevention of 

Significant Deterioration Review). 

§116.787. Amendments and Alterations of Permits Issued Under this Division. 

The owner or operator planning the modification of a facility permitted under this division relating 

to small business stationary source permits, pipeline facilities permits, and existing facility permits must 

comply with the requirements of Subchapter 8 of this chapter (relating to New Source Review Permits) 

27 
before work begins on the construction of the modification. Amendments and alterations for permits 

issued under this division are subject to the requirements of Subchapter B of this chapter. 

§116.788. Renewal of Permits Issued Under this Division. 

Permits issued under this division (relating to Small Business Stationary Source Permits, 

Pipeline Facilities Permits, and Existing Facility Permits} shall be renewed in accordance with the· 

requirements of Subchapter D of this chapter (relating to Permit Renewals} .. 

§116.790. Delegation. 

The commission delegates to the executive director the authority to take any action on a permit 

issued under this division relating to small business stationary source permits, pipeline facility permits, 

and existing facility permits. 

28 
DIVISION 3: EXISTING FACILITY FLEXIBLE PERMITS 

§§116.793 -116.802, 116.804-116.807 

§116.793. Eligibility for Existing Facility Flexible Permits. 

(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 

exis~ing 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 § 116.11 0( 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 

29 
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 fo'r the owner is responsible for complying with this section, except as provided by subsection (b) of 

this section. 

§116.794. Existing Facility Flexible Permit Application. 

Any application for a new existing facility flexible permit must include a completed Form Pl-1 G, 

Grandfathered Facility Permit Application. The Form PI-1G must be signed by an authorized 

representative of the applicant. The Form Pl-1 G 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. 

30 
(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. 

31 
{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 FCM, § 112 or as listed under 

Chapter 113, Subchapter C of this title (relating to National Emission Standards for Hazardous Air· 

Pollutants for Source Categories (FCM 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 8, 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 8, 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. 

32 
(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 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. 

33 
(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. 

§116.795. Public Participation for Initial Issuance of Existing Facility Flexible Permits. 

(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 

34 
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). 

§116.796. Notice and Comment Hearings for Initial Issuance of Existing Facility Flexible Permits. 

(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; 

35 
(2} a brief description of the purpose of the hearing; and 

(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: 

36 
(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. 

U) 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). 

§116.797. Notice of Final Action on Existing Facility Flexible Permit Applications. 

(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; 

37 
(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. 

§116.798. Permit Fee. 

(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. 0. 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. 

38 
§116.799. General and Special Conditions. 

(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 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. 

39 
(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 

40 
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 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. 

41 
§116.800. Emission Caps and Individual Emission Limitations. 

(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 non attainment 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. 

42 
(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. 

§116.801. Implementation Schedule for Additional Controls. 

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 §1 01.330 of this title (relating to Definitions), or 

before March 1, 2008 for facilities located in the West Texas region as defined in §1 01.330 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. 

§116.802. Significant Emission Increase. 

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 I 

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. 

43 
§116.804. Limitation on Physical and Operational Changes. 

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). 

§116.805. Amendments and Alterations for Existing Facility Flexible Permits. 

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 Subchapte.r 8 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 8 of this chapter. 

§116.806. Existing Facility Flexible Permit Renewal. 

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). 

§116.807. Delegation. 

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. 

44 
DIVISION 4: VOLUNTARY EMISSION REDUCTION PERMITS 

§§116.810 -116.814, 116.816, 116.820, 116.840 -116.842, 116.850, 116.860, 116.870 

§116.810. Eligibility. 

(a) The owner or operator of a grandfathered facility may apply for a permit to operate that 

facility under this subchapter. Applications under this subchapter must be submitted before September 

1, 2001. 

(b) Applications for a voluntary emission reduction permit (VERP) shall be submitted under the 

seal of a Texas licensed professional engineer, if required by §116.11 O(e) of this title (relating to 

Applicability). 

(c)· The owner or authorized operator of the grandfathered facility, group of facilities, or account 

is responsible for applying for the VERP and for complying with this subchapter. 

§116.811. Voluntary Emission Reduction Permit Application. 

Any application for a voluntary emissions reduction permit (VERP) must include a completed 

Form PI-1V Voluntary Emission Reduction Permit Application. The Form PI-1V must be signed by an 

authorized representative of the applicant. The Form PI-1V specifies additional support information 

which must be provided before the application is deemed complete. In order to be granted a VERP, the 

owner or operator of the grandfathered facility shall submit information to the commission which 

demonstrates that all of the following are met. 

45 
(1) Protection of public health and welfare. The emissions from the grandfathered 

facility 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 VERP may have provisions for measuring the 

emission of air contaminants as determined by the commission. These 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," portable 

analyzers, or emissions calculations if a known process variable is monitored. 

(3) Control method. 

(A) Control method in attainment areas. A grandfathered facility in an 

attainment area shall use an air pollution control method that is at feast 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 VERP application considering the age and remaining useful life of the facility, except as 

provided by subparagraphs (B), (C), and (D) of this paragraph. 

(B) Control method in nonattainment areas and the following attainment 

counties: Bexar, Gregg, Harrison, Nueces, Smith, Travis, and Victoria. A grandfathered facility located 

in a nonattainment area for a national ambient air quality standard, or a grandfathered facility which 

emits volatile organic compounds or nitrogen oxides in an attainment county listed in this.subparagraph, 

shall use the more stringent of: 

(i) a control method at least as beneficial as that described in 

subparagraph (A) of this paragraph; or 

46 
(ii) a control method that the commission finds is demonstrated to be 

generally achievable for facilities in that area of the same type that are permitted under this section, 

considering the age and remaining useful life of the facility. 

(C) Emissions reductions may be deferred at grandfathered facilities according 

to §116.816 of this title (relating to Deferral of Emission Reductions). 

(D) A VERP may be issued for a grandfathered facility: 

(i) that makes a good faith effort to make equipment improvements and 

emission reductions necessary to meet the requirements of subparagraph (A) or (B) of this paragraph; 

(ii) that, in spite of the effort, cannot reduce the facility's emissions to 

the degree necessary for the issuance of the permit; and 

(iii) whose owner or operator acquires a sufficient number of emission 

reduction credits under the program established under §116.812 of this title (relating to Project Emission 

Reduction Credits) to offset the emissions exceeding those which would otherwise be allowed under 

subparagraph (A) or (B) of this paragraph. 

(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 Title 40 CFR Part 60, promulgated by EPA under authority granted 

under FCAA, §111, as amended. 

(5) National Emission Standards for Hazardous Air Pollutants (NESHAPS). The 

emissions from each facility as defined in 40 CFR Part 61 will meet at least the requirements of any 

47 
applicable NESHAPS, 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 available control technology (MACT) 

standard as listed under 40 CFR Part 63, promulgated by EPA under FCAA, §112, or as listed under 

Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air 

Pollutants for Source Categories (FCAA, §112, 40 CFR 63)). 

(7) Performance demonstration. The grandfathered facility will achieve the 

performance specified in the permit application. The commission may require the applicant to submit 

additional engineering data after a VERP has been issued in order to demonstrate further that the 

grandfathered facility will achieve the performance specified in the permit. In addition, the commission 

may require initial compliance testing to determine ongoing compliance through engineering calculations . . . 

based on measured process variables, parametric or predictive monitoring, stack monitoring, or stack 

testing. 

(8) Nonattainment review. A grandfathered facility in a nonattainment area shall comply 

with all applicable requirements under Subchapter 8, Division 5 of this chapter (relating to 

Nonattainment Review). 

(9) Prevention of Significant Deterioration (PSD) review. A grandfathered facility in an 

attainment area shall comply with all applicable requirements under Subchapter 8, Division 6 of this 

chapter (relating to Prevention of Significant Deterioration Review). 

48 
(10) Air dispersion modeling or ambient monitoring. The commission may require 

computerized air dispersion modeling and/or ambient monitoring to determine the air quality impacts 

from the grandfathered facility. 

(11) Federal standards of review for constructed or reconstructed major sources of 

hazardous air pollutants. If the grandfathered facility is an affected source (as defined in §116.15(1) of 

this title (relating to Section 112(g) Definitions)), the affected source 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)). 

(12) Application content. In addition to any other requirements of this subchapter, the 

applicant shall: 

(A) identify each facility to be included in the VERP; 

(B) identify the air contaminants emitted; 

(C) provide emission rate calculations; 

(D) propose a control method; and 

(E) identify the date by which the control method will be implemented. 

49 
§116.812. Project Emission Reduction Credits. 

(a) Project emission reduction credits (PERC) shall be granted to the owner or operator of a 

grandfathered facility for the purpose of complying with §116.811 (3)(0) of this title (relating to Voluntary 

Emission Reduction Permit Application) if the owner or operator conducts an emission reduction project 

to compensate for the facility's emissions exceeding the emission rate which would otherwise be 

required under §116.811(3) of this title, provided: 

(1) the emission reduction project reduces emissions in the airshed in which the 

grandfathered facility is located; and 

{2) the emission reduction project reduces net emissions from one or more sources in 

this state in an amount and type sufficient to prevent air pollution to a degree comparable to the amount 

of the reduction in the facility's emissions that would be necessary to comply with §116.811 {3) of this 

title. 

(b) Qualifying emission reduction projects include, but are not limited to: 

(1) generation of electric energy by a low-emission method, including: 

{A) wind power; 

(B) biomass gasification power; and 

(C) solar power; 

{2) the purchase and destruction of high-emission automobiles or other mobile sources; 

50 
(3) the reduction of emissions from a permitted facility that emits air contaminants to a 

level significantly below the levels necessary to comply with the facility's permit; 

(4) a carpooling or alternative transportation program for the owner's or operator's 

employees; 

(5) a telecommuting program for the owner's or operator's employees; and 

(6) the replacement by a motor vehicle fleet owner or operator of the fleet's primary fuel 

to either a lower-sulfur fuel than required by state or federal law, or the use of an alternative fuel 

approved by the commission under TCAA, §382.131 ( 1 ). 

(c) Applications for voluntary emission reduction permits (VERP) must demonstrate that any 

proposed PERCs meet the following criteria, as applicable. The PERC must be: 

(1) enforceable by the commission; 

(2) permanent, meaning that the emission reduction is unchanging for the remaining life 

of the source; 

(3) quantifiable, so that the emission reduction can be measured or estimated with 

confidence using replicable techniques; 

(4) surplus, such that the emission reduction is not otherwise required of a facility by a 

state or federal law, regulation, or agreed order; and 

(5) a real reduction in which actual emissions are reduced. 

51 
(d) A VERP for a grandfathered facility participating in the PERC program will include a permit 

condition requiring the successful completion of the project or projects for which the facility owner or 

operator acquires the credits. 

(e) Emission reduction credits acquired under this section are not transferrable. 

§116.813. Application Review Schedule. 

(a) The commission will review the voluntary emission reduction permit (VERP) application in 

accordance with §116.114 of this title (relating to Application Review Schedule). 

(b) The commission will give priority to the processing of an application for the issuance of a 

VERP under §116.811 of this title (relating to Voluntary Emission Reduction Permit Application), the 

amendment of a VERP under §116.820 ofthis title (relating to Modifications); or the reneWal of a VERP 

under §116.860 of this title (relating to Voluntary Emission Reduction Permit Renewal) for those 

grandfathered and formerly grandfathered facilities that are located less than two miles from the outer 

perimeter of a school, child day-care facility, hospital, or nursing home. 

§116.814. General and Special Conditions. 

(a) Voluntary emission reduction permits (VERPs) may contain general and special conditions. 

The holders of a VERP shall comply with any and all such conditions. 

(b) Holders of VERPs shall comply with the requirements of §116.115 of this title (relating to 

General and Special Conditions). 

52 
§116.816. Deferral of Emission Reductions. 

(a) A voluntary emission reduction permit (VERP) may defer the requirement to reduce 

emissions of certain air contaminants. 

(b) To qualify for a deferral of emission reductions, an applicant must specifically request a 

deferral of reductions of certain air contaminants and shall demonstrate how substantial emission 

reductions will be made in other specific air contaminants. 

(c) The commission may grant a deferral based on its prioritization of air contaminants, as 

necessary, to meet local, regional, and statewide air quality needs and only if the applicant has clearly 

demonstrated that exceptional economic hardship or specific technical impracticability problems are a 

barrier to implementing the reduction required by the VERP. 

(d) The commission will consider the following criteria for prioritizing air quality needs to 

determine whether to grant a deferral: 

( 1) the location of the grandfathered facility; 

(2) the size of the reduction of emissions of other specific air contaminants and whether 

the reductions are in addition to the reductions that are required for other specific air contaminants by 

§116.811 (3) of this title (relating to Voluntary Emission Reduction Permit Application); 

(3) the impact of the reduction of emissions of other specific air contaminants and the 

deferral on attaining National Ambient Air Quality Standards (NAAQS); 

53 
( 4) anticipated state or federal regulations that may require reductions of the air 

contaminants being deferred; and 

{5) the benefit to public health from the reduction of other specific air contaminants 

versus the deferral. 

§116.820. Modifications. 

The owner or operator planning the modification of a facility permitted under a voluntary 

emission reduction permit must comply with Subchapter B of this chapter (relating to New Source 

Review Permits) before work is begun on the construction of the modification. 

§116.840. Public Participation for Initial Issuance. 

(a) An applicant for a voluntary emission reduction permit (VERP) 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 affecte~ by emissions from a grandfathered facility may request the 

commission to hold a notice and comment hearing on the VERP application. The public comment 

period shall end 30 days after the publication of Notice of Receipt of Application and Intent to Obtain 

Permit under §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 VERP shall be conducted under the procedures in 

§116.841 of this title (relating to Notice and Comment Hearings for Initial Issuance) and not under the 

APA. 

54 
(d) The commission's response to public comments and the notice of its decision on whether to 

issue or deny a VERP will be conducted under the procedures in §116.842 of this title (relating to Notice 

of Final Action). 

(e) A person affected by a decision to issue or deny a VERP may seek review, as appropriate, 

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. 

§116.841. Notice and Comment Hearings for Initial Issuance. 

(a) The notice and comment hearing requirements apply only to the initial issuance of a 

voluntary emission reduction permit (VERP). 

(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; 

55 
(2) a brief description of the purpose of the hearing; and 

(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: 

56 
(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 §116.842 of this title (relating to 

Notice of Final Action). 

§116.842. Notice of Final Action. 

(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 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; 

57 
(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 commission may petition 

for a rehearing 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. 

§116.850. Voluntary Emission Reduction Permit Application Fee. 

Any person who applies for a voluntary emission reduction permit (VERP) shall remit a fee. 

(1) If the grandfathered facility will use a control method at least as stringent as those 

defined in §116.811 (3)(A) or {B) of this title (relating to Voluntary Emission Reduction Permit 

Application), the application fee shall be $450. 

(2) If the grandfathered facility will defer emission reductions under §116.811 (3)(C) of 

this title, or if the grandfathered facility will use emission reduction credits under §116.811 (3)(0) of this 

title, the application fee shall be $1,000. 

{3) Only one of the applicable fees required in paragraphs {1) and {2) of this section 

shall be remitted with a single VERP application which proposes to control more than one facility at an 

account. If more than one facility is included in a single VERP application, the applicant shall remit the 

highest of the applicable fees. 

58 
(4) Notwithstanding paragraph (1) of this section, the maximum fee for aVERP for a 

small business, as defined in FCAA, §507(c), shall be $100, if the grandfathered facility will use a 

control method at least as stringent as those defined in §116.811 (3)(A) or (B) of this title. 

§116.860. Voluntary Emission Reduction Permit Renewal. 

(a) Voluntary emission reduction permits (VERP) shall be renewed in accordance with 

Subchapter D of this chapter (relating to Permit Renewals). 

(b) To renew a VERP with credits acquired under §116.812 of this title (relating to Project 

Emission Reduction Credits) the owner or operator of the facility shall have: 

(1) made equipment improvements or emission reductions necessary to meet the 

requirements of§ 116.811 (3) of this title (relating to Voluntary Emission Reduction Permit Application); or 

(2) acquired additional credits under the program as necessary to meet the permit 

requirements of §116.811(3) of this title. 

§116.870. Delegation. 

The commission may delegate to the executive director the authority to take any action on a 

voluntary emission reduction permit. 

59 
SUBCHAPTER 1: ELECTRIC GENERATING FACILITY PERMITS 

§§116.910, 116.911, 116.913, 116.917, 116.918, 116.921,116.926,116.928, 116.930 

§116.910. Applicability. 

(a) The owner or operator of a grandfathered electric generating facility (EGF) shall apply for a 

permit to operate that facility under this subchapter and may apply for permit authorization to operate 

certain facilities (identified in §116.911(f) of this title (relating to Electric Generating Facility Permit 

Application)) that are located at the same site as a grandfathered EGF. 

(b) Owners or operators of electing EGFs opting to obtain allowances under Chapter 101, 

Subchapter H, Division 2 of this title (relating to Emissions Banking and Trading of Allowances), shall 

submit a request to alter any related existing New Source Review (NSR) permits at the time of 

application for a permit under subsection (a) of this section. Alterations must be consistent with the 

requirements of §116.116(c) of this title (relating to Changes to Facilities). 

(c) The owner, or the operator who is authorized to act for the owner, of a grandfathered or 

electing EGF is responsible for complying with this subchapter. 

(d) A municipal corporation, electric cooperative, or river authority may exclude any EGF with a 

nameplate capacity of 25 megawatts or less from this subchapter. The municipal corporation, electric 

cooperative, or river authority must notify the commission by January 1, 2000, of its intent to exclude 

those EGFs. If the municipal corporation, electric cooperative, or river authority reevaluates its intent to 

exclude EGFs, it may choose to permit any of those EGFs consistent with the requirements of this 

subchapter. 

60 
(e) Owners or operators of grandfathered facilities as defined in §116.1 0 of this title (relating to 

General Definitions) at sites with grandfathered or electing EGFs subject to this subchapter may 

consolidate any permit issued under Chapter 116, Subchapter H of this title with a permit issued under 

this subchapter. 

(f) A grandfathered EGF that generates electric energy primarily for internal use but that during 

1997 sold, to a utility power distribution system, less than one-third of its potential electrical output 

capacity, or less than 219,000 megawatt-hours, is not required to obtain a permit under this subchapter. 

§116.911. Electric Generating Facility Permit Application. 

(a) Owners or operators of grandfathered or electing electric generating facilities (EGF) shall 

submit an application to authorize nitrogen oxides (NOx) emissions and, if applicable, sulfur dioxide 

(S02) and particulate matter (PM) emissions. The application must include a completed Form PI-1-U, 

General Application. The Form PI-1-U must be signed by an authorized representative of the applicant. 

The Form PI-1-U specifies additional support information which must be provided before the application 

is deemed complete. In order to be granted an electric generating facility permit (EGFP), the owner or 

operator shall submit information to the commission which demonstrates that all of the following are met. 

(1) Measurement of emissions and performance demonstration. Applicants must 

propose monitoring and reporting for the measurement of emissions and demonstration of performance 

consistent with §116.914 of this title (relating to Emissions Monitoring and Reporting Requirements). 

(2) Control method. New control methods proposed in initial applications must comply 

with the requirements in §116.617(1 ), (3), (4)(A), and (B) and (5)- (9) of this title (relating to Standard 

Permit for Pollution Control Projects). 

61 
(3) Air dispersion modeling or ambient monitoring for poilution control projects. 

Computerized air dispersion modeling and/or ambient monitoring may be required by the commission's 

Air Permits Division where there is an increase in emissions to determine: the air quality impacts from 

controls proposed under paragraph (2) of this subsection. 

(4) Opacity limitations for coal-fired grandfathered and electing EGFs. The coal-fired 

grandfathered and electing EGFs must meet the opacity limitations of §111.111 of this title (relating to 

Requirements for Specified Sources). 

(b) Application information for electing EGFs. 

(1) In addition to the information required in this section, EGFP applications regarding 

electing EGFs shall contain the following information: 

(A) documentation of the emissions from the 1997 Emissions Scorecard froni 

the EPA Acid Rain Program, or if that information is not available, the actual emissions from that electing 

EGF for calendar year 1997; 

(B) documentation of fuel consumption, fuel heating values, and heat input in 

millions of British thermal units (MMBtu) for calendar year 1997; 

(C) identification of the electing EGFs to be included. 

(2) Emissions of air contaminants from electing EGFs other than NOx, and if applicable, 

S02 and PM, already authorized by Chapter 116 of this title (relating to Control of Air Pollution by 

Permits for New Construction or Modification), will not be authorized under this subchapter. 

62 
(c) The owner or operator of a grandfathered or electing EGF must submit an application for a 

permit under this subchapter on or before September 1, 2000. 

(d) Any grandfathered natural gas-fired EGF for which a permit application was filed under 

subsection (a) of this section, or for which a permit has been obtained in accordance with subsection (a) 

of this section, or which is excluded in accordance with §116.910(d) of this title (relating to Applicability) 

from the requirement to submit an application under subsection (a) of this section is considered 

permitted for the emissions of all air contaminants from that EGF. 

(e) An owner or operator of a grandfathered coal-fired EGF with a permit issued in accordance 

with subsection (a) of this section or with an application pending under subsection (a) of this section may 

submit an application for an EGFP in accordance with to §116.917 of this title (relating to Electric 

Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating Facilities 

and Certain Grandfathered Facilities Located at Electric Generating Facility Sites) to authorize the 

emissions of all criteria pollutants from the EGF other than NOx, S02, and PM as it relates to opacity. 

(f) An owner or operator of a grandfathered or electing EGF with a permit application pending 

under subsection (a) of this section or a permit issued in accordance with subsection (a) of this section 

may submit an application for an EGFP in accordance with §116.917 of this title to also authorize each 

of the following types of facilities that are located at the same site as the EGF: 

( 1) a generator that does not generate electric energy for compensation and is used not 

more than 1 0% of the normal annual operating schedule; or 

(2) an auxiliary fossil-fuel-fired combustion facility that does not generate electric energy 

and does not emit more than 100 tons per year of any air contaminant. 

63 
(g) Any application submitted in accordance with §116.917 of this title for facilities identified in 

subsection (e) of this section must be submitted by September 1, 2003. Any application submitted in 

accordance with §116.917 of this title for facilities identified in subsection (f)(1) or (2) of this section must 

be submitted by September 1, 2002. Any additional controls specified in an EGF permit issued in 

accordance with an application filed under §116.917 of this title are subject to the schedule outlined in 

§116.771 of this title (relating to Implementation Schedule for Additional Controls.) 

(h) Emissions of air contaminants from facilities identified in subsection (f)(1) or (2) of this 

section must be included in each applicable emissions allowance trading program under Chapter 101, 

Subchapter H, Division 2 of this title (relating to Emissions Banking and Trading Allowances). The 

commission will not issue any new emissions allowance for the emissions of any air contaminant from 

such a facility. 

(i) All applications for an EGFP shall be submitted under the seal of a Texas licensed 

professional engineer if required by §116.110(e) of this title (relating to Applicability). 

§116.913. General and Special Conditions. 

(a) The following general conditions shall be applicable to every electric generating facility 

permit (EGFP) unless otherwise specified in the permit. 

(1) A permit issued under this subchapter may authorize the following: 

(A) for grandfathered natural gas-fired electric generating facilities (EGFs), 

emissions of all air contaminants; 

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(B) for grandfathered coal-fired EGFs, nitrogen oxides (NOx) emissions, sulfur 

dioxide (S02) emissions, and particulate matter (PM) through opacity limitations as specified in § 111.111 

of this title (relating to Requirements for Specified Sources); 

(C) for electing natural gas-fired EGFs, allowances for NOx emissions; 

(D) for electing coal-fired EGFs, allowances for NOx emissions, allowances for 

S02 emissions, and PM through opacity limitations as specified in §111.111 of this title; and 

(E) for facilities identified in §116.917(a) of this title (relating to Electric 

Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating Facilities 

and Certain Grandfathered Facilities Located at Electric Generating Facility Sites), emissions of all 

criteria pollutants. 

(2) Permits for grandfathered facilities as defined in §116.10 of this title (relating to 

General Definitions) at sites with grandfathered or electing EGFs and permitted under Subchapter H of 

this chapter (relating to Permits for Grandfathered Facilities) may be consolidated with a permit issued 

under this subchapter. 

(3) The owner or operator of a grandfathered EGF, an electing EGF, and if applicable, 

any facility included in an EGFP under §116.917 of this title, must comply with Chapter 101, Subchapter 

H, Division 2 of this title (relating to Emissions Banking and Trading of Allowances) including the 

requirement to maintain allowances in a compliance account. Allowances may be transferred in 

accordance with §1 01.335 of this title (relating to Allowance Banking and Trading). 

(4) Mass emission monitoring and reporting shall be conducted in accordance with 

§116.914 of this title (relating to Emissions Monitoring and Reporting Requirements). 

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(5) On June 1 after every control period, the owner or operator shall hold a quantity of 

allowances for emissions of NOx and, where applicable, S02, in its compliance account that is equal to 

or greater than the total emissions of that air contaminant emitted during the prior control period for each 

EGF permitted in accordance with §116.911 (a) and (b) of this title (relating to Electric Generating Facility 

Permit Application) and for each facility permitted in accordance with §116.917 of this title. 

(6) Owners or operators shall submit a report of the amount of emissions of each· 

allocated air contaminant, from the prior control period to the Air Permits Division consistent with the 

requirements of§101.336(b) o.fthis title (relating to Emission Monitoring, Compliance Demonstration, 

and Reporting). 

(7) Coal-fired grandfathered and electing EGFs must meet the opacity limitations of 

§111.111 of this title. 

(8) Natural gas-fired EGFs that were designed to also burn fuel oil may burn any 

American Society for Testing and Materials (ASTM) grade fuel oil or mixture of ASTM grade fuel oils 

containing not more than 0.7% sulfur by weight as determined by ASTM Method D 396. Burning of fuel 

oil does not relieve the owner or operator of the EGF from the responsibility to comply with the emission 

limitations, allowances, or conditions of any permit or state or federal regulation. The burning of waste 

or used oils is not authorized by this subchapter. 

(9) Owners or operators of natural gas fired EGFs that were designed to also burn fuel 

oil shall submit an annual report for the EGFs that burned fuel oil during each control period. The report 

shall include the names of the unit(s) burning fuel oil, the date(s) that fuel oil is burned, the amount of 

fuel oil burned, and the ASTM grade(s} of the fuel oil or fuel oil mixture that is burned. This report shall 

be included with the report required by §101.336(b) of this title (relating to Emission Monitoring, 

Compliance Demonstration, and Reporting). 

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(b) Special conditions may be included in the EGFP. 

§116.917. Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired 

Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating 

Facility Sites. 

(a) Any application for an electric generating facility permit (EGFP) for additional criteria 

pollutants from grandfathered coal-fired electric generating facilities (EGFs) identified in §116.911 (e) of 

this title (relating to Electric Generating Facility Permit Application) or for grandfathered facilities 

identified in §116.911 (f)(1) or (2) of this title (relating to Electric Generating Facility Permit Application) 

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 a 

permit for a grandfathered facility under this section, 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 grandfathered 

facility 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 EGFP may have provisions for measuring the 

emission of air contaminants as determined by the commission. These 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," portable 

analyzers, or emissions calculations if a known process variable is monitored. 

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(3) 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 

in accordance with FCAA, §111 ~ as amended. 

(4) 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 the EPA under authority granted in 

accordance with FCAA, §112, as amended. 

(5) 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 in accordance with 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)). 

(6) Performance demonstration. The grandfathered facility will achieve the 

performance specified in the permit application. The commission may require the applicant to submit 

additional engineering data after an EGFP has been issued in order to demonstrate further that the 

grandfathered facility will achieve the performance specified in the permit. In addition, the commission 

may require initial compliance testing to determine ongoing compliance through engineering calculations 

based on measured process variables, parametric or predictive monitoring, stack monitoring, or stack 

testing. 

(7) Nonattainment review. A grandfathered facility in a nonattainment area shall comply 

with all applicable requirements under Subchapter B, Division 5 of this chapter (relating to 

Nonattainment Review). 

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(8) Prevention of Significant Deterioration (PSD) review. A grandfathered facility in an 

attainment area shall comply with all applicable requirements under Subchapter B, Division 6 of this 

chapter (relating to Prevention of Significant Deterioration Review). 

(9) Air dispersion modeling or ambient monitoring. The commission may require 

computerized air dispersion modeling and/or ambient monitoring to determine the air quality impacts 

from the grandfathered facility. 

(10) Federal standards of review for constructed or reconstructed major sources of 

hazardous air pollutants. If the grandfathered facility is an affected source (as defined in §116.15(1) of 

this title (relating to Section 112(g) Definitions)), the affected source 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, Section 112(g), 40 CFR Part 63)). 

(11) Application content. In addition to any other requirements of this subchapter, the 

applicant shall: 

(A) identify each facility to be included in the electr.ic generating facility permit; 

(B) identify the air contaminants emitted; and 

(C) provide emission rate calculations. 

(b) Upon request, the commission shall consolidate an application submitted in accordance with 

this section with an application pending in accordance with §116.911 (a) of this title. 

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(c) Applications submitted in accordance with this section are subject to the requirements of 

§116.920 of this title (relating to Public Participation for Initial Issuance). 

§116.918. Additional General and Special Conditions for Grandfathered Coal-Fired Electric 

Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility 

Sites. 

(a) Permits issued to facilities submitting applications under §116.917 of this title {relating to 

Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating 

Facilities and Certain Grandfathered Facilities Located at Electric Generating FacilitY Sites) may contain 

general and special conditions. The holders of a permit under this subchapter shall comply with any and 

all such conditions. 

(b) General conditions. Holders of permits issued to facilities submitting applications in 

accordance with §116.917 of this title shall comply with the following general conditions, regardless of 

whether they are specifically stated within the permit document. 

(1) Sampling requirements. 

(A) If sampling is required, the permit holder shall contact the commission's 

Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and 

procedures. 

(B) All sampling and testing procedures must be approved by the executive 

director and coordinated with the regional representatives of the commission. 

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(C) The 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. The permit holder must demonstrate or otherwise justify 

the equivalency of emission control methods, sampling or other emission testing methods, and 

monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. 

Alternative methods shall be applied for in writing and must be reviewed and approved by the executive 

director prior to their use in fulfilling any requirements of the permit. 

(3) Recordkeeping. The permit holder shall: 

(A) maintain a copy of the permit along with records containing the information 

and data sufficient to demonstrate compliance with the permit, including production records and 

operating hours; 

(B) keep all required records in a file at the plant site. If, however, the facility 

normally operates unattended, records shall be maintained at the nearest staffed location within the 

State of Texas specified in the application; 

(C) make the records available at the request of personnel from the 

commission or any air pollution control program having jurisdiction; 

(D) comply with any additional recordkeeping requirements specified in special 

conditions attached to the permit; and 

(E) retain information in the file for at least two years following the date that the 

information or data is obtained. 

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(4) Maximum allowable emission rates. The total emissions of air contaminants from 

any of the sources of emissions must not exceed the values stated on the table attached to the permit 

- entitled "Emission Sources-Maximum Allowable Emission Rates." 

(5) Maintenance of emission control. The permitted facilities shall not be operated 

unless all air pollution emission capture and abatement equipment is maintained in good working order 

and operating properly during normal facility operations. The permit holder shall provide notification for 

upset and maintenance in accordance with §1 01.6 and §1 01.7 of this title (relating to Upset Reporting 

and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, 

and Operational Requirements). 

(6) Compliance with rules. 

(A) Acceptance of a permit by an applicant constitutes an acknowledgment and 

agreement that the permit holder will comply with all rules, regulations, and orders of the commission 

issued in conformity with the TCAA and the conditions precedent to the granting of the permit. 

(B) If more than one state or federal rule or regulation or permit condition are 

applicable, the most stringent limit or condition shall govern and be the standard by which compliance 

shall be demonstrated. 

(C) Acceptance includes consent to the entrance of commission employees and 

agents into the permitted premises at reasonable times to investigate conditions relating to the emission 

or concentration of air contaminants, including compliance with the permit. 

(c) Special conditions. The holders of permits issued under this subchapter shall comply with 

all special conditions contained in the permit document. 

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{1) Special conditions may be attached to a permit that are more restrictive than the 

requirements of this title. 

{2) Special condition for written approval. 

{A) The executive director may require as a special condition that the permit 

holder obtain written approval before constructing a source under: 

{i) a standard permit in accordance with Subchapter F of this chapter 

{relating to Standard Permits); or 

{ii) a permit by rule under Chapter 106 of this title {relating to Permits by 

Rule). 

. {B) Such written approval may be required if the executive director specifically 

finds that an increase of a particular pollutant could either: 

{i) result in a significant impact on the air environment; or 

{ii) cause the facility to become subject to review under: 

{I) 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)); or 

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(II) the provisions in Subchapter B, Division 5 of this chapter 

(relating to Nonattainment Review) and Subchapter B, Division 6 of this chapter (relating to Prevention 

of Significant Deterioration Review). 

§116.921. Notice and Comment Hearings for Initial Issuance. 

(a) The notice and comment hearing requirements apply only to the initial issuance of an 

electric generating facility permit (EGFP). 

(b) The commission shall decide whether to hold a hearing. The commission is not required to 

hold a hearing if the basis of the request by a person who may be affected by emissions from a 

grandfathered or electing electric generating facility (EGF) or a facility described in §116.911 (f) of this 

title (relating to Electric Generating Facility Permit Application) is determined to be unreasonable. If a 

hearing is requested by a person who may be affected by emissions from a grandfathered or electing 

· EGF or a facility described in §116.911 (f) of this title, and that request is reasonable, the commission 

shall hold a hearing. 

(c) At the applicant's expense, notice of a hearing on a draft EGFP must be published in the 

public notice section of one issue of a newspaper of general circulation in the municipality in which the 

grandfathered or electing EGF or a facility described in §116.911 (f) of this title is located, or in the 

municipality nearest to the location of the grandfathered or electing EGF or a facility described in 

§116.911(f) of this title. 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 

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(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 EGFP. 

(1) Reasonable time limits may be set for oral statements, and the submission of 

statements in writing may be required. 

(2) The period for submitting written comments is automatically extended to the close of 

any hearing. 

(3) At the hearing, the period for submitting written comments may be extended beyond 

the close of the hearing. 

(e) A tape recording or written transcript of the hearing must be made available to the public. 

(f) Any person, including the applicant, who believes that any condition of the draft EGFP 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; 

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(2) state or federal statutes and regulations; 

(3) EPA documents of general applicability; or 

(4) other generally available reference materials. 

(h) The commission shall keep a record of all comments received and issues raised in the 

hearing. This record is available to the public. 

. (i) The draft EGFP may be changed based on comments pertaining to whether the permit 

provides for compliance with the requirements of this subchapter. 

G) The commission shall respond to comments consistent with §116.922 of this title (relating to 

Notice of Final Action). 

§116.926. Permit Fee. 

(a) Fees required. Any person who applies for a permit in accordance with §116.917 of this title 

(relating to Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric 

Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites) 

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 Texas Natural 

Resource Conservation Commission, P. 0. Box 13088, MC 214, Austin, Texas 78711-3088. Required 

fees must be received before the commission will begin examination of the application. 

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{c) Return of fees. Fees must be paid at the time an application for a permit is submitted in 

accordance with this subchapter. 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. 

§116.928. Delegation. 

The commission delegates to the executive director the authority to take any action on a permit 

issued under this subchapter. Section 116.922{b){3) of this title {relating to Notice of Final Action) 

provides notification that any person affected by a decision of the commission may petition for rehearing. 

Notwithstanding §116.922{b){3) of this title, any Notice of Final Action sent regarding a permit action 

under this subchapter will state that a person affected by a decision of the executive director may file a 

motion to overturn the executive director's decision under §50.139 of this title {relating to Motion to 

Overturn Executive Director's Decision) rather than a petition for rehearing. 

§116.930. Amendments and Alterations of Permits Issued Under this Subchapter. 

The owner or operator planning a modification of a facility permitted under this subchapter must 

comply with Subchapter 8 of this chapter {relating to New Source Review Permits) before work is begun 

on the construction of the modification. Amendments and alterations for permits issued in accordance 

with this subchapter are subject to the requirements of Subchapter 8 of this chapter. 

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