RICK PERRY 

GOVERNOR 

October 4, 2001 

Mr. Gregg Cooke 

Regional Administrator 

OFFICE OF THE GOVERNOR 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mr. Cooke: 

Enclosed are the proposed revisions to the Texas State Implementation Plan (SIP) that the Texas 

r~ Natural Resource Conservation Commission adopted on May 9, 2001. 

The amendments consist ofthe following sections of30 TAC Chapter 122, Federal Operating Permits: 

§122.215, Minor Permit Revisions; §122.216, Applications for Minor Permit Revisions; §122.217, 

Procedures for Minor Permit Revisions; and § 122.218, Minor Permit Revision Procedures for Permit 

Revisions Involving the Use of Economic Incentives, Marketable Permits, and Emissions Trading. The 

amendments specifically addressed deficiencies in the Texas Federal Operating Permit as identified by 

EPA and were included in the June 1, 2001, submittal to EPA that addressed those deficiencies. I 

request that the identified sections of Chapter 122 also be considered as amendments to the SIP. 

A copy of the public hearing certification, the accompanying order and the Texas Register publication 

of the adoption are also enclosed. I look forward to your expeditious approval of this SIP revision. 

Sincerely, 

Governor 

RP:chv 

Enclosures 

cc: Mr. Robert J. Huston, Chairman, Texas Natural Resource Conservation Commission 

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

PoST Omcr Box 12428 AusTIN, Ts<.<.< 78711 (512) 463-2000 (VorcE)/(512) 475-3165 (TDD) 
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

This is to certify that the attached are true and correct copies of a revision to the Texas state 

implementation plan, adopted on May 9, 2001, pursuant to 40 Code of Federal Regulations (CFR) 

§51.104. Prior to the adoption of this revision, apublic hearing was held pursuant to 40 CFR. 

§51.102(a), and notice of the.hearingwas given which conformed to the requirements of40 CFR 

§51.102(d). I am the custodian of the records of the Texas Natural Resource Conservation 

Commission (Commission). 

To certify which, witness my hand and the seal of the Commission, this the 11th day of 

May, 2001. 

Texas Natural Resource Conservation Commission 
STAFF 

RECOMMENDATIONS
Texas Natural Resource Conservation Commission 

Chapter 122 - Federal Operating Permits 

Rule Log No. 2000-043-122-AI 

§122.215. Minor Permit Revisions. 

Minor permit revisions include any change that satisfies the following: 

(1) does not violate any applicable requirement; 

(2) does not involve significant changes to existing monitoring, reporting, or 

recordkeeping requirements in the permit; 

Page 242 

(3) does not require or change a case-by-case determination of an emission limitation 

or other standard, or a source-specific determination for temporary sources of ambient impacts, or a 

visibility or increment analysis; 

(4) does not seek to establish or change a permit term or condition for which there is 

no corresponding underlying applicable requirement and that the source has assumed to avoid an 

applicable requirement to which the source would otherwise be subject. Such terms and conditions 

include: 

(A) a federally enforceable emissions cap assumed to avoid classification as a 

modification under any provision of the FCAA, Title I; and 
Texas Natural Resource Conservation Commission 

Chapter 122 - Federal Operating Permits 

Rule Log No. 2000-043-122-AI 

(B) an alternative emissions limit approved pursuant to regulations 

promulgated under the FCAA, § 112(i)(5); and 

(5) is not a modification under any provision of FCAA, Title I. 

§122.216. Applications for Minor Permit Revisions. 

An application for a minor permit revision must include, at a minimum, the following: 

(1) a description of each change; 

(2) a description of the emission units affected; 

Page 243 

(3) the provisional terms and conditions as defined in §122.10 of this title (relating to 

General Definitions) that codify the new applicable requirements; 

( 4) a statement that the change qualifies for a minor permit revision; 

(5) a certification in accordance with § 122.165 of this title (relating to Certification by 

a Responsible Official); and 

(6) the emissions resulting from the change. 
Texas Natural Resource Conservation Commission 

Chapter 122 - Federal Operating Permits 

Rule Log No. 2000-043-122-AI 

§122.217. Procedures for Minor Permit Revisions. 

Page 244 

(a) If the following requirements are met, changes at a site requiring a minor permit revision 

may be operated before issuance of the revision: 

(1) the permit holder complies with the following: 

(A) all applicable requirements governing the change; 

(B) all state-only requirements governing the change; and 

(C) the provisional terms and conditions as defined in §122.10 of this title 

(relating to General Definitions) governing the change; 

(2) the permit holder submits to the executive director an application containing the. 

information required in §122.216 of this title (relating to Applications for Minor Permit Revisions) 

before the change is operated; 

(3) the permit holder maintains the information required by §122.216 of this title with 

the permit until the permit is revised. 
Texas Natural Resource Conservation Commission 

Chapter 122 - Federal Operating Permits 

Rule Log No. 2000-043-122-AI 

Page 245 

(b) For changes to a permit required as the result of the revision of a compliance assurance 

monitoring general operating permit or periodic monitoring general operating permit, the following 

requirements apply. 

(1) The permit holder shall comply with the following: 

(A) all applicable requirements governing the change; 

(B) all state-only requirements governing the change; and 

(C) the provisional terms and conditions as defined in §122.10 of this title 

governing the change. 

(2) The information in §122.216(1)- (5) of this title shall be submitted no later than 

the compliance date of the new requirement or effective date of the repealed requirement, whichever is 

applicable. 

(3) The permit holder shall maintain the information required in §122.216 (1)- (4) of 

this title with the permit until the permit revision is fmal. 

(c) In every case, the applicable requirements are always enforceable. 
Texas Natural Resource Conservation Conunission 

Chapter 122 - Federal Operating Permits 

Rule Log No. 2000-043-122-AI 

Page 246 

(d) The permit holder need not comply with the original terms and conditions codified in the 

permit that have been replaced by provisional terms and conditions before issuance or denial of a 

revision or renewal. 

(e) The executive director shall notify the EPA administrator and affected state(s) of the 

requested permit modification within five working days of receipt of a complete minor revision permit 

application. 

(f) A minor permit revision may be issued by the executive director provided the following: 

(1) the changes meet the criteria for a minor permit revision; 

(2) the executive director has received a complete application; 

(3) the conditions of the permit provide for compliance with the requirements of this 

chapter; and 

(4) the requirements of this chapter for public announcement, affected state review, 

and EPA review have been satisfied. 
Texas Natural Resource Conservation Commission 

Chapter 122 - Federal Operating Permits 

Rule Log No. 2000-043-122-AI 

Page 247 

(g) The executive director shall take final action on the permit revision application no later 

than 90 days after receipt of an application, or 15 days after the end of the EPA review period, 

whichever is later. 

§122.218. Minor Permit Revision Procedures for Permit Revisions Involving the Use of Economic 

Incentives, Marketable Permits, and Emissions Trading. 

Notwithstanding §122.215 of this title (relating to Minor Permit Revisions), minor permit 

revision procedures may be used for permit revisions involving the use of economic incentives, 

marketable permits, emissions trading, and other similar approaches, to the extent that such minor 

permit revision procedures are explicitly provided for in the Texas state implementation plan or in 

applicable requirements promulgated by the EPA. 
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

.ORDER ADOPTING AMENDM.ENTS TO RULES 

AND REVISIONS TO THE STATE IMPLEMENTATION PLAN (SIP) . . . 

Docket No. 2000-1430-RUL 

On May 9, 2001, the Texas Natural Resource Conservation Commission (Commission) considered 

a1pendments to 30 TAC Chapter 122,· c_oncerning Federal Oper~ting· Permits, concerning: Repealed 

§ 122.215- Minor Permit Revisions; new § 122.215- Minor Permit Revisions and § 122.218 -.Minor Permit 

Revision Procedures for Permit Revisions Involving the Use of Economic Incentives, Marketable Permits, 

and Emissions Trading; and amended §122.216- Applications for Minor Permit Revisions and §122.217-

Procedures for Minor Permit Revisions. These sections allow permit holders using economic incentives, 

marketable permits and emissions trading (o incorporate the changes into operating permits using a minor 

permit revision. Under Tex. Health & Safety Code Ann. §§382.011, 382.012 and 382.023 (Vernon Supp. 

1999), the Commission has the authority to control the quality of the state's air and to issue orders 

consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & 

Safety Code. . · 

Pursuant to Tex. Health & Safety Code Ann. §382.017 (Vernon Supp. 1999), Tex. Gov't Code 

Chapter 2001 (Vernon 1993) and 40 Code of Federal Regulations §51. 102 and after proper notice, the 

Commission conducted a public hearing in Austin, Texas on February 20, 2001, to consider the proposed 

amendments to 30 TAC Chapter 122 and revisions to the SIP. Proper notice included prominent 

advertisement in the areas affected at least 30 days prior to the date of the hearing. The proposed rules were 

published for comment in the January 26, 2001 issue of the Texas Register (26 TexReg 890). 

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the U.S. Environmental Protection Agency (EPA), and all applicable 

local air pollution control agencies. The public was invited to submit data, views and recommendations on 

the proposed amendments, either orally or in writing at the hearing or during the comment period. Prior 

to the scheduled hearing, copies of the proposed amendments were available for public inspection at the 

Commission's central office and regional office. . . 

Data, views and recommendations of interested persons regarding the proposed amendments and 

revisions were submitted to the Commission staff during the comment period, and were considered by the 

Commission staff as reflected in the analysis of testimony appended to this Order. The Commission finds 

that the analysis of testimony includes the names of all interested persons offering comment on the 

amendments and their position concerning the proposed amendments. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the new and amended rules and 

0 revisions to the SIP appended to this Order are hereby adopted. The Commission further authorizes staff 

1 
to make any non-substantive rev1s10ns to the rules necessary to comply with the Texas Register 

• requirements. These rules and the preamble to the adopted rules and the revisions to the SIP are 

incorporated by reference in this Order as if set forth at length verbatim in this Order. Legal counsel has 

reviewed and certified that these rules, as adopted, are a valid exercise of the Commission's legal authority. 

The certification is incorporated by reference in this Order as if set forth verbatim. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted new and amended rules and 

revisions to the SIP, to the Governor of Te'xas for submittal to the Regional Administrator of EPA as a 

proposed revision to the Texas SIP pursuant to the Federal Clean Air. Act, §110, 42 U.S. Code Ann. 

§§7410- 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Texas Administrative 

Procedure Act, Tex. Gov't Code §2001.033. 

If any portion of this Order is fcir any reason held to be invalid by a court of competent jtirjsdiction, 

· the invalidity of any portimi. shall not affect the validity of the remaining portions.· 

Date issued: MAY 1 0.2001 TEXAS NATURAL RESOURCE 

CONS VA TION COMMISSION 

,-•'. 

2 

"'t• 1 

' 
PART 28. EXECUTI 

OF PHYSICAL THE 

OCCUPATIONAL T 

EXAMINERS 

CHAPTER 651. FEES 

22 TAC §651.1 

The Executive Council of Physi al Therapy and Occupational 

Therapy Examiners adopts the mendments to §651. 1, without 

changes to the proposed test a published in the February 23, 

2001, issue of the Texas Regist (26 TexReg 1651) and will not 

be republished. 

This section is being amended t add a re-exam fee, change in 

inactive fee, and add language I r changeable fees. 

No comments were received re arding adoption of the amendment. 

The amendment is adopted und the Executive Council of Physical Therapy and Occupational T erapy Act, Title 23, Subchapter 

H, Chapter 452, Occupations C de, which provides the Executive Council of Physical Thera and Occupational Therapy Examiners with the authority to ad t rules consistent with this Act 

to carry out its duties in adminis ering this Act. 

Titie 3, Subtitle H, Chapter 452 Occupational Code Is affected 

by this amended section. 

This agency hereby certifies that he adoption has been reviewed 

by legal counsel and found to b a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Seer tary of State on May 10, 2001. 

TRD-200102640 

John P. Maline 

Executive Director 

Executive Council of Physical Ther py and Occupational Therapy 

Examiners 

Effective date: September 1, 2001 

Proposal publication date: Februa 23, 2001 

For further information, pl!9ase call: 512) 305-6900 

• • 

CHAPTER 651. FEES 

The Executive Council of Phy cal Therapy and Occupational 

Therapy Examiners adopts t e repeal of §651.2, Physical 

Therapy Board Fees, and adop new §651.2, Physical Therapy 

Board Fees, without changes t the proposed text as published 

in the December 1, 2000, is ue of the Texas Register (25 

TexReg 11842). The repealed and new sections are adopted 

without changes and will not b republished. 

The repeal of the section and e adoption of the new section 

will bring PT and OT administr tive procedures into alignment, 

to establish fees for services p vided, and to include fee information. 

The new section adds late re al and restoration fees for licensees and facilities as set au in the PT Board rules, changes 

the fee to go inactive, and esta lishes a renewal fee for an inactive license. 

No comments were received re rding adoption of the repeal or 

new section. 

22 TAC §651.2 

The section is repealed under T le 3, Subtitle H, Chapter 452 of 

the Occupations Code, which p vides the Executive Council of 

Physical Therapy and Occupati al Therapy Examiners with the 

authority to adopt rules consist nt with this Act to carry out its 

duties in administering this Act. 

This agency hereby certifies that he adoption has been reviewed 

by legal counsel and found to b a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Seer tary of State on May 8, 2001. 

TRD-200102595 

John P. Maline 

Executive Director 

Executive Council of Physical Ther y and Occupational Therapy 

Examiners 

Effec1ive da1e: May 28, 2001 

Proposal publication date: Decemb r 1, 2000 

For further Information, please call: 512) 305-6900 

• • 

22 TAC §651.2 

The new section is adopted und r the Physical Therapy Practice 

Act, Title 3, Subt~le H, Chapte 452, Occupations Code, which 

provides the Executive Council Physical Therapy and Occupational Therapy Examiners with e authority to adopt rules consistent with this Act to carry au its duties in administering this 

Act. 

This agency hereby certifies tha the adoption has been reviewed 

by legal counsel and found to b a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Seer tary of State on May 8, 2001. 

TRD-200102596 

John P. Maline 

Executive Director 

Executive Council of Physical The py and Occupational Therapy 

Examiners 

Effective date: May 28, 2001 

Proposal publication date: Decem r 1 , 2000 

For further information. please call: (512) 305-6900 

• • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS NATURAL RESOURCE 

CONSERVATION COMMISSION 

CHAPTER 122. FEDERAL OPERATING 

PERMITS 

The Texas Natural Resource Conservation Commission 

(TNRCC or commission) adopts the amendments to §122.10, 

General Definitions; §122.120, Applicability; §122.130, Initial Application Due Dates; § 122.131 , Phased Permit Detail; 

§122. 132, Application and Required Information for Initial Permit 

Issuance, Reopening, Renewal, or General Operating Permits; 

ADOPTED RULES May 25, 2001 26 TexReg 3747 
§122.134, Complete Application; §122.136, Application Deficiencies; §122.139, Application Review Schedule; §122.140,

Representations in Application; §122.142, Permit Content

Requirements; §122.143, General Terms and Conditions;

§122.145, Reporting Terms and Conditions; §122.146, Compliance Certification Terms and Conditions; §122.210, General

Requirements for Revisions; §122.211, Administrative Permit

Revisions; §122.212, Applications for Administrative Permit

Revisions; §122.213, Procedures for Administrative Permit

Revisions; §122.216, Applications for Minor Permit Revisions;

§122.217, Procedures for Minor Permit Revisions; §122.221,

Procedures for Significant Permit Revisions; §122.231, Permit

Reopenings; §122.320, Public Notice; §122.330, Affected State

Review; §122.340, Notice and Comment Hearing; §122.350,

EPA Review; §122.360, Public Petition; §122.608, Procedures

for Incorporating Periodic Monitoring Requirements; §122.706,

Applications for Compliance Assurance Monitoring; and

§122.708, Procedures for Incorporating Compliance Assurance

Monitoring Requirements. The commission repeals §122.215,

Minor Permit Revisions; and §122.219, Significant Permit

Revisions. The commission also adopts new §122.215, Minor

Permit Revisions; §122.218, Minor Permit Revision Procedures

for Permit Revisions Involving the Use of Economic Incentives,

Marketable Permits, and Emissions Trading; §122.219, Significant Permit Revisions; and §122.222, Operational Flexibility

and Off-Permit Changes. Sections 122.215 - 122.218 will be

submitted to the United States Environmental Protection Agency

(EPA) as revisions to the Texas state implementation plan (SIP).

Sections 122.10, 122.120, 122.132, 122.136, 122.140,

122.142, 122.143, 122.145, 122.146, 122.210, 122.211,

122.213, 122.215 - 122.219, 122.222, 122.231, 122.350, and

122.608 are adopted with changes to the proposed text as published in the January 26, 2001 issue of the Texas Register (26

TexReg 890). Sections 122.130, 122.131, 122.134, 122.139,

122.212, 122.221, 122.320, 122.330, 122.340, 122.360,

122.706, 122.708, and the repeals of §122.215 and 122.219

are adopted without changes and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

On May 22, 2000, the EPA set a deadline that any program revisions necessary for obtaining full federal operating permit (FOP)

program approval must be submitted to the EPA no later than

June 1, 2001, and granted a third extension, extending up to

December 1, 2001, for all interim approvals of operating permit programs (65 Federal Register (FR) 32035). The State of

Texas FOP program is an interim-approved program subject to

the EPA’s notice. The commission adopts this rulemaking to resolve inconsistencies which exist between Chapter 122, Federal

Operating Permits, and Title 40 Code of Federal Regulations

(CFR) Part 70 (Part 70), State Operating Permit Programs, so

that the EPA may grant full program approval to the commission’s

operating permit program. The commission plans to submit program revisions to the EPA on or before June 1, 2001.

The 1990 Federal Clean Air Act Amendments (FCAA), Title V,

Permits, directed the EPA to establish the minimum requirements

for a state operating permit program. On July 21, 1992, the EPA

promulgated Part 70 to comply with this directive. States were

required to submit operating permit programs meeting the requirements of Part 70 to the EPA. On August 23, 1993, the commission adopted Chapter 122 to implement the FOP program

and submitted its proposed operating permit program (which included Chapter 122) to the EPA on September 17, 1993, and in

two supplemental submittals on October 28, 1993, and November 12, 1993. On June 7, 1995, the EPA published notice of its

proposal to grant source category-limited interim approval to the

State of Texas (60 FR 30037). On June 25, 1996, the EPA promulgated interim approval of the State operating permit program

for a period of two years, beginning on July 25, 1996 (61 FR

32693). Interim program approval provided the commission with

the authority to implement the operating permit program in Texas

for two years without the imposition of an EPA-promulgated, administered, and enforced program under 40 CFR Part 71 (Part

71), Federal Operating Permit Programs. To obtain full program

approval, the commission must submit a program to the EPA that

corrects inconsistencies between the interim program and Part

70.

Title V does not allow for extensions of interim programs; however, the EPA has extended interim programs three times. These

extensions were intended to allow states to simultaneously develop a full program submittal that would correct any interim inconsistencies and meet the requirements of a revised Part 70.

On August 29, 1997, the EPA automatically extended all interim

approvals of operating permit programs until October 1, 1998 (62

FR 45732). On July 27, 1998, the EPA published a direct final

rule that extended interim approval expiration dates until June

1, 2000. On February 14, 2000, the EPA published another direct final interim program extension which would have allowed

all interim programs to expire on June 1, 2002 (65 FR 7290).

However, on March 29, 2000, the EPA published a withdrawal of

the February 14, 2000 extension based on an adverse comment

that the extension was contrary to the express provisions of the

FCAA (65 FR 16523). Subsequently, on May 22, 2000, the EPA

published notice that all states with interim approval would have

until June 1, 2001 to submit a program for full program approval

and that the EPA would take action on those submittals by December 1, 2001 (65 FR 32035). If the EPA is unable to approve

a state’s program by December 1, 2001, Part 71 is automatically

effective in that state, and Part 71 sources that have not received

a FOP would have up to one-year to submit permit applications

under Part 71.

The EPA has proposed revisions to Part 70, some of which have

not been promulgated. However, some provisions of Chapter

122 were amended in October 1997 to take advantage of flexibility offered by proposed revisions to Part 70. The October 1997

revisions to Chapter 122 were submitted to the EPA for approval

in June 1998. The EPA has not yet acted on the June 1998 submittal and the commission understands that the EPA will not act

separately on that submittal from this adoption.

In the June 25, 1996 notice, the EPA indicated that in an action

on a state’s submittal for full approval, it will use the criteria in the

final Part 70 regulation (61 FR 32693). The existing July 21, 1992

regulation, as amended, is the final Part 70 regulation at this

time. The commission adopts this rulemaking to make Chapter

122 consistent with this version of Part 70 and to address the

inconsistencies identified in the June 25, 1996 notice.

RESOLUTION OF INCONSISTENCIES BETWEEN CHAPTER

122 AND PART 70

In the June 7, 1995 notice, the EPA identified various inconsistencies between Chapter 122 and Part 70 (60 FR 30037).

The EPA’s June 25, 1996 notice states that the inconsistencies

specifically identified in the June 7, 1995 notice must be remedied before the EPA grants full approval to Texas’ operating permit program (61 FR 32698). Also, the EPA provided the commission a draft document which summarizes the inconsistencies

26 TexReg 3748 May 25, 2001 Texas Register
identified in the 1995 and 1996 notices. That document is available from the commission upon request.

On January 26, 2001, the commission’s proposal to address deficiencies in the FOP program identified by the EPA was published in the Texas Register. The proposal listed the specific deficiencies and the commission’s proposed solution. That list of

deficiencies will not be republished but can be found in the January 26, 2001 issue of the Texas Register (26 TexReg 890). The

commission incorporates this list and the discussion of the deficiencies by reference. A copy of the proposal will be included in

the FOP program submittal package that will be sent to the EPA.

Changes in the proposed rule language made for this adoption

will be identified in the SECTION BY SECTION DISCUSSION.

SECTION BY SECTION DISCUSSION

Subchapter A - Definitions

The commission adopts amendments to §122.10. The reference to the title of Chapter 101 is corrected. The commission

amends §122.10(1), the definition of air pollutant, to respond

to the inconsistency with Part 70 identified by the EPA in the

June 7, 1995 notice. The commission amends §122.10(1)(F) to

specify that any pollutant subject to a requirement established

under FCAA, §112(r) is an air pollutant under Chapter 122.

The existing regulation does not identify these pollutants as "air

pollutants." The commission also amends §122.10(1)(F)(i) and

(ii). Section 122.10(1)(F)(i) specifies that the definition of air

pollutant includes any pollutant subject to requirements under

FCAA, §112(j) and also specifies the date pollutants under

FCAA, §112(j) shall be considered to be regulated if the EPA

fails to promulgate a standard by the date established pursuant

to FCAA, §112(e). Section 122.10(1)(F)(ii) specifies that the

term air pollutant also includes any pollutant for which the

requirements of FCAA, §112(g)(2) have been met, but only with

respect to the individual site subject to the FCAA, §112(g)(2)

requirement. The amendments are consistent with the definition

of regulated air pollutant in 40 CFR §70.2.

The commission amends §122.10(2), the definition of applicable

requirement, to include Chapter 101, Subchapter H, Emissions

Banking and Trading. Because Subchapter H provides an alternative means of compliance with applicable requirements, the

commission believes Subchapter H is also an applicable requirement. The commission also deleted the Chapter 119 reference

in the definition of applicable requirement, since the regulation

has been repealed. The definition of applicable requirement includes all of the requirements under 30 TAC Chapter 106, Subchapter A, General Requirements or 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modification and any term or condition of any preconstruction permit,

in response to the inconsistency with Part 70, identified by the

EPA in the June 7, 1995 notice, as previously mentioned. The

EPA specified that Chapter 122 was inconsistent with Part 70

because the definition of applicable requirement excluded certain minor new source review (NSR) authorizations as applicable

requirements (60 FR 30039). In a draft document which summarizes the inconsistencies between Chapter 122 and Part 70

identified in the 1995 and 1996 notices, the EPA identified an

inconsistency in the definition of applicable requirement that it

overlooked in its original review of the source category- limited

interim program. Since the definition of applicable requirement

did not include Chapter 116, the EPA stated that the definition

failed to include SIP requirements for prevention of significant

deterioration (PSD) and nonattainment permitting. The revised

definition addresses the issue. In response to comment and for

consistency with 40 CFR §70.2, the definition now includes requirements that have been promulgated or approved by the EPA

through rulemaking at the time of issuance but have future-effective dates. The commission also deletes §122.10(2)(K), since

no concept of federal only enforceability exists in Part 70. The

commission is also correcting capitalization errors and is making

other formatting corrections in the definition.

The commission, in response to a comment, adds language to

§122.10(7), the definition of deviation, to clarify that deviations

and compliance certifications are not limited to information obtained through required monitoring. Similar language is added

to §122.146(4).

In response to comments on concurrent public notice and EPA

review periods, the commission amends §122.10(9), the definition of draft permit, to specify that the draft permit may be the

same document as the proposed permit. The new definition allows the executive director to implement more efficient permitting

procedures for initial issuances, significant revisions, reopenings, or renewals that do not receive public comments. However, the EPA review period would occur after the public notice

period when comments are received. This will give the EPA the

opportunity to consider any public comments received and any

other changes to the permit. Further, the commission is adopting changes from the proposed language in §122.350(b)(1) to

specify that public notice and EPA review may run concurrently

and, if appropriate, the executive director may extend the EPA

review period.

The commission adopts §122.10(11), the definition of "FCAA,

§502(b)(10) changes." This definition clarifies the types of

changes to a permit that qualify as operational flexibility and do

not require a permit revision.

The commission amends §122.10(23), renumbered as

§122.10(24), the definition of preconstruction authorization.

The amended definition includes any authorization to construct

or modify an existing facility or facilities under Chapter 106,

Permits by Rule and Chapter 116. This amendment addresses

the Part 70 inconsistency identified by the EPA in the June

7, 1995 notice concerning the identification of minor NSR as

an applicable requirement. The commission also deletes the

language relating to the delegation of FCAA, §112(g) and (j)

to the commission as part of the definition of preconstruction

authorization. This deletion addresses the issue that the EPA

has raised on the validity of the federal only enforceability

designation. In Chapter 122, applicable requirements were

designated as federally enforceable only when they were

promulgated, but not yet adopted by and delegated to the

commission. The commission deleted the federally enforceable

only designation, making this clarification to the definition of

preconstruction authorization necessary.

The commission amends the definition of site in §122.10(29),

renumbered as §122.10(30), to clarify that if research and development facilities have the same two-digit standard industrial

classification (SIC) code as a collocated manufacturing facility,

they will be included with the collocated facility for operating permit applicability and permitting purposes.

In addition to these changes, the defined terms in Chapter 122,

Subchapter A are renumbered.

Subchapter B - Permit Requirements

The commission adopts amended §122.120 to clarify which sites

are required to obtain a permit. New §122.120(b) clarifies the

ADOPTED RULES May 25, 2001 26 TexReg 3749
applicability of a site to Chapter 122 by further identifying what

types of sites are not subject to Chapter 122. In response to

comments, the commission amends §122.120(b) to refer to the

criteria for sites that are not subject to Chapter 122, as opposed

to the owner or operator for those sites. This will eliminate confusion for owners and operators of both sites that are subject to

the program and sites that are not. Section 122.120(b)(1) clarifies that a permit is not required for non-major sites that the EPA

has exempted from the obligation to obtain a permit. Section

122.120(b)(2) states that non-major sites that are eligible for an

EPA deferral are not required to obtain a permit. Also, the commission amends the newly designated §122.120(a) by adding

the phrase "except as identified in subsection (b)" to further clarify that the sites in §122.120(a) are subject to Chapter 122 and

those sites identified in §122.120(b) are not. The commission

also amends newly designated §122.120(a)(4) to require that

sites that are non-major which are no longer eligible for an EPA

deferral are required to obtain a permit.

The commission adopts amended §122.130 to delete a reference to the interim and full operating permit programs. The

interim program refers to the permitting of those sources for

which the commission was granted source category-limited

interim approval on June 25, 1996. All other sources permitted

under Chapter 122 are considered as permitted under the full

operating permit program. Since the commission is seeking

full program approval from the EPA, the references to the

interim and full operating permit programs are unnecessary.

The amendments to this section include the entire deletion

of subsection (a), including the types of sources required to

obtain a permit during the interim program and the dates by

which to apply. The commission deletes §122.130(b)(2), which

designated the primary SIC groups that should have applied

for a permit by July of 1998. The commission also deletes

§122.130(b) and §122.139(1) and amends §122.130(b)(1)

and (3), and (c); §122.132(c); §122.134(c); and §122.139(2);

to delete references to the interim and full operating permit

programs and application due dates, and the references to the

deleted §122.130(a) and (b)(2). Section 122.130(c) specifies

the requirements for sites that become subject to the program

after the effective date of the interim or full program. Because

the commission is deleting the references to the interim or

full program, it is also amending this subsection by using the

date February 1, 1998, which is the due date for abbreviated

applications for sources subject to the full program. Because of

the deletions, §122.130 and §122.139 have been renumbered.

The commission adopts amended §122.131 to add a new subsection (g) to clarify that a site may not qualify for the phased

permit detail process if the commission receives its application

after July 22, 2000. The commission will, however, honor applications previously submitted in accordance with the phased

permit detail process. The commission will discontinue the option because the process is overly resource intensive.

The commission adopts amended §122.132(e)(4)(B) to specify

that the determination of compliance status will be based on, at

a minimum, but not limited to, compliance methods specified in

the applicable requirements. The commission adopts amended

§122.132(e)(4)(C)(iii) to specify that compliance schedules shall

be supplemental to and not sanction noncompliance with applicable requirements.

The commission adopts new §122.132(e)(10), (e)(11), and

(g). New §122.132(e)(10) requires that fugitive emissions be

included in permit applications and permits in the same manner

as stack emissions, regardless of whether the source category

in question is included in the list of sources contained in the

definition of major source. In response to negotiations with the

EPA regarding its comments pertaining to the incorporation

of minor NSR, new §122.132(e)(11) requires any application

for which the executive director has not authorized initiation

of public notice by the effective date of this rule to include

preconstruction authorizations that are applicable to emission

units at the site. New subsection (g) clarifies that applicants are

not required to submit information for facilities that are identified

as de minimis under §116.119, De Minimis Facilities or Sources,

unless these facilities are subject to an applicable requirement.

The facilities or sources addressed by §116.119 are not required

to obtain an NSR authorization before construction. Since they

are not required to obtain a preconstruction authorization,

the commission will not require these facilities or sources to

be identified in an operating permit application. The concept

of de minimis facilities or sources is also consistent with 40

CFR §70.5(c), which allows state programs to develop a list of

insignificant activities which do not need to be included in permit

applications. In addition, the commission deletes references to

sources or facilities from §122.132(g) and §122.146(5)(E). The

rule now indicates that information on facilities that are identified

as de minimis under §116.119 is not required to be included in

applications or the annual compliance certification provided the

facility has no other applicable requirement. This amendment

is necessary because some sources or facilities identified as

de minimis under §116.119 may have applicable requirements

other than Chapter 116 and, therefore, will need to include those

sources in applications and the annual compliance certification.

The commission adopts amended §122.136. The adopted language requires an applicant to submit any necessary information

to address applicable requirements or state-only requirements

after a complete application is filed until the point that the draft

permit is released. This is consistent with 40 CFR §70.5(b). The

previous requirement stated that, if a site becomes subject to additional applicable requirements or state-only requirements after

an application is submitted, an applicant must submit information

to address those requirements within 60 days after becoming

subject to the new requirements. This amendment will require

applicants to keep permit applications up to date with new requirements, but does not require them to update the application

once public notice is published. If a site becomes subject to new

requirements after notice has been published, the executive director will make a determination to request additional information

for the existing permitting action or require the permit holder to

revise the permit after it is issued. However, the site will still need

to be in compliance with the new requirements. In response to

comments, the commission amends §122.136(c) to clarify that

additional information will not be required to be submitted to the

executive director before the commencement of the technical review period to address requirements that become applicable to

the site after an application is filed. This is consistent with 40

CFR §70.5(b) and will reduce the amount of application material

that will need to be continually updated before the release of the

draft permit. The commission amends the title of §122.136 to

"Application Deficiencies and Supplemental Information" to better describe the contents of the section.

The commission adopts amended §122.139. Section

§122.139(1) is deleted and existing §122.139(2) is amended

to remove reference to the interim and full operating permit

programs. The commission also renumbers the section and

updates existing §122.139(4), now §122.139(3), to reference

26 TexReg 3750 May 25, 2001 Texas Register
paragraphs (1) - (2), instead of paragraphs (1) - (3). In addition,

the commission corrects grammar in existing §122.139(2), now

§122.139(1).

The commission adopts amended §122.140. Section

122.140(3) is amended to clarify that information specified in §122.714(a), Compliance Assurance Monitoring, or

§122.612, Periodic Monitoring, becomes conditions under

which a permit holder shall operate upon the granting of an

authorization to operate under a compliance assurance monitoring general operating permit (GOP) or periodic monitoring

GOP. The commission also corrects a typographical error in

§122.140(3) and adds the appropriate section titles for the rule

citations.

The commission adopts amended §122.142. In response

to comments, the commission amends §122.142(b)(2)(B)(ii)

to require that each permit contain monitoring, recordkeeping, reporting, and testing requirements sufficient to ensure

compliance with the permit. This is consistent with 40 CFR

§70.6(c)(1). The commission amends §122.142(b)(3) to specify

that permits shall contain preconstruction authorizations and

that the incorporation of preconstruction authorizations shall be

done in accordance with §122.231. The commission adopts this

amendment in response to the EPA June 7, 1995 notice which

specifically identified that the section on permit content did not

properly identify minor NSR as an applicable requirement. The

commission also amends §122.142(b)(3) to remove the requirement for applications for an authorization to operate to contain

preconstruction authorizations because it was redundant with

§122.132(e)(11). In response to comments, the commission

adopts a new §122.142(h) to specify that permits must include

compliance assurance monitoring, as specified in Subchapter

H. This is consistent with 40 CFR §70.6(a)(3)(i)(A).

The commission adopts amended §122.143. In response to

comments and for consistency with 40 CFR §70.6(a)(6)(i), the

commission amends §122.143(4) to specify that any noncompliance with the terms or conditions codified in the permit or the

provisional terms and conditions is grounds for enforcement action; permit termination, revocation and reissuance, or modification; or denial of a permit renewal application. In response

to comments, the commission amends §122.143(8) to require,

upon request by the executive director, that the permit holder

provide copies of records to be kept by the permit, including any

information claimed to be confidential. This is consistent with 40

CFR §70.6(a)(6)(v). The commission deletes §122.143(9). This

paragraph described the requirements for removing the federally

enforceable only designation once an applicable requirement is

adopted by the commission. The commission is eliminating the

federally enforceable only designation; therefore, this paragraph

is no longer needed. The remaining paragraphs of §122.143 are

renumbered accordingly.

The commission adopts amended §122.145. The commission

amends §122.145(1)(A) to specify that reports of monitoring data

required to be submitted by an applicable requirement, or by the

permit, shall be submitted to the executive director. The commission proposed the deletion of §122.145(2)(D). In response to

comments, the commission retains §122.145(2)(D), with amendments, and deletes §122.145(3). Section 122.145(2)(D) now

specifies that upset reporting does not substitute for deviation

reporting. The commission deletes §122.145(3) because it is

redundant with upset and maintenance reporting requirements

in Chapter 101, General Air Quality Rules.

The commission adopts amended §122.146. In response to

comments, the commission amends §122.146(2) to specify

that compliance certifications shall be submitted to the executive director and the EPA administrator. This is consistent

with 40 CFR §70.6(c)(5)(iv). The adopted amendment to

§122.146(4) requires permit holders to identify any material

information that must be included in the certification to comply

with FCAA, §113(c)(2), which prohibits knowingly making

a false certification or omitting material information. This

requirement is consistent with 40 CFR §70.6(c)(5)(iii)(B). Also

in §122.146(4), the commission adds language to clarify that

compliance certifications are not limited to the information

obtained through the required monitoring. The commission

corrects the punctuation among the series of subparagraphs

in §122.146(5). The amendment to §122.146(5)(A) requires

certifications to contain information stating whether the method

used for determining the compliance status of each emission

unit provides continuous or intermittent data. This requirement is also consistent with 40 CFR §70.6(c)(5)(iii)(B). The

commission adopts a new §122.146(5)(E) which clarifies that

annual compliance certifications are not required to include any

information on facilities identified as de minimis under §116.119,

De Minimis Facilities or Sources, provided that the facility has

no applicable requirements. As previously mentioned, the

commission is proposing to add §122.132(g), which specifies

that operating permit applications are not required to include

information for de mininis facilities which have no applicable

requirements. Since the information is not necessary in the

application, the executive director will not require the information

to be certified for compliance. The commission adopts a new

§122.146(6) which allows the executive director to request

additional information if necessary to determine the compliance

status of an emission unit. This requirement is consistent with

40 CFR §70.6(c)(5)(iii)(D).

Subchapter C - Initial Permit Issuances, Revisions, Reopenings,

and Renewals

The commission adopts amended §122.210. The commission

proposed changes to §122.210(a), but in response to comments,

the commission is not adopting the proposed changes. The

commission agrees with the commenter that the proposed language did not clarify the subsection. The commission deletes

§122.210(b) which identified the situations warranting a permit

revision. This information is redundant and not as inclusive as

that in §§122.211, 122.215, 122.218, and 122.219 which identify the types of changes that qualify as administrative, minor, or

significant revisions, respectively. The subsequent subsections

are renumbered accordingly.

The commission adopts amended §122.211. The commission

adopts a new §122.211(2) that is consistent with 40 CFR

§70.7(d)(1)(ii) and specifies that a change in name, address,

contact phone number, or other similar change qualifies as an

administrative permit revision. The subsequent subsections are

renumbered accordingly. The commission also adopts a new

§122.211(5), which specifies that changes which incorporate

preconstruction authorizations under an EPA-approved program

that meets procedural requirements substantially equivalent to

those of Subchapters C and D, and compliance and requirements substantially equivalent to §§122.143, 122.145, and

122.146 may qualify as administrative permit revisions. This

is consistent with 40 CFR §70.7(d)(1)(v) and would provide

additional flexibility offered by Part 70 that could be used in the

future to incorporate requirements into operating permits. The

commission deletes the language which specified that removing

ADOPTED RULES May 25, 2001 26 TexReg 3751
a federally enforceable only designation is an administrative revision. The commission eliminated this designation of federally

enforceable only because it may be inconsistent with 40 CFR

Part 70.

The commission adopts amended §122.212 to clarify that the application information requirements apply to administrative permit

revisions.

The commission adopts amended §122.213. Section

122.213(a) is amended to replace the text referring to changes

required as the result of the adoption of a state-only requirement

with text describing changes listed in §122.211. This text is

more accurate because §122.213 describes procedures for

administrative permit revisions, and changes that affect or add

state-only requirements are only one type of administrative

amendment identified in §122.211. Also, the appropriate

section title is added to the rule citation. The commission also

deletes §122.213(a)(1) because the requirements listed in the

paragraph are now included as applicable requirements under

the FOP program. The subsequent paragraphs are renumbered

accordingly. The commission amends §122.213(d) by adding

the word "administrative" to describe the permit revision type for

clarity.

The commission repeals the existing §122.215 and adopts a new

§122.215 to make the criteria for minor permit revisions the same

as the criteria in 40 CFR §70.7(e)(2)(i)(A)(1) - (5). The commission corrects a typographical error in §122.215(4)(A) by deleting

"an" and inserting "any".

The commission adopts amended §122.216. Because 40 CFR

§70.7(e)(2)(v), allows the site to operate a change once a minor

permit application is submitted and 40 CFR Part 70 does not allow the permit to be revised after notices have been sent over

a 12-month period, the commission deletes §122.216(a). Due

to this deletion, the section contains only one subsection which

requires no further designation other than the section number.

The commission amends §122.216 to specify the minimum information required in the subsection applies to minor permit revisions. In response to comments and to be consistent with 40

CFR §70.7(e)(2)(ii)(A), the commission adds a new §122.216(6)

to require minor permit revision applications to include the emissions resulting from the change.

The commission adopts amended §122.217. The commission deletes §122.217(a)(1)(A) and (b)(1)(A) because these

subparagraphs were redundant citations requiring that permit

holders comply with Chapter 116 which is now included in the

FOP program as an applicable requirement. The remaining

subparagraphs in each subsection are renumbered accordingly.

In response to comments and to be consistent with 40 CFR

§70.7(e)(2)(v), the commission amends §122.217(a)(1)(A)

- (C) and §122.217(b)(1)(A) - (C) to specify that the permit

holder must comply with applicable requirements, state only

requirements, and provisional terms and conditions governing

the change at a site. The commission amends §122.217(a)(2)

to require that permit holders submit an application to the

executive director instead of a notice to address an inconsistency with Part 70 identified by the EPA in the June 7, 1995

notice and to be consistent with 40 CFR §70.7(e)(2)(v). The

commission amends §122.217(a)(2) and (3) and (b)(2) and (3)

to correctly reference the amended §122.216. The commission

deletes an incorrect phrase in §122.217(b). The commission

also amends §122.217(b)(2) to remove the requirement to

record the information and also to require the information

relating to the minor permit revision to be submitted no later

than the compliance date of a new requirement or effective

date of a repealed requirement, not 45 days after such date.

This is consistent with 40 CFR §70.7(e)(2)(v), which requires

minor permit revision applications to be submitted before

a change is operated. Section §122.217(b)(2) requires a

compliance date or an effective date and, for clarification, the

commission has added the phrase "whichever is applicable."

Section 122.217(b)(3) specifies that the information relating to

minor permit revisions is to be maintained until the permit is

revised. The commission amends this paragraph to reflect that

the information is to be maintained until the permit revision is

final, for clarity and consistency with 40 CFR §70.7(e)(2)(v).

To be consistent with 40 CFR §70.7(e)(2)(iii), the commission

adopts a new subsection (e) requiring the executive director to

notify the EPA and affected states of minor permit applications.

The commission amends §122.217(f)(2) to specify that the

executive director may issue a revision provided that a complete

application is submitted. Lastly, in order to address Part 70

inconsistencies identified by the EPA in the June 7, 1995 notice,

the commission amends §122.217(g) requiring the executive

director to take final action on a minor permit revision application

no later than 90 days after the receipt of an application or 15

days after the end of the EPA review period, whichever is later.

This is consistent with 40 CFR §70.7(e)(2)(iv).

The commission adopts a new §122.218 that is consistent with

40 CFR §70.7(e)(2)(i)(B). This section allows permit holders

using economic incentives, marketable permits, and emissions

trading to incorporate the changes into operating permits using

a minor permit revision. Title 40 CFR §70.7(e)(2)(i)(B) provides

that the minor permit revision process may be used for revisions

involving these actions, as long as the SIP, or the particular

applicable requirement, allows for the use of the minor permit

revision process. In order to allow for this option in Chapter 122,

§§122.215 - 122.218 will be submitted as a SIP revision. The

commission also adds the appropriate title to the rule citation

for §122.215.

The commission repeals the existing §122.219 and adopts a new

§122.219 specifying that changes to a permit shall be processed

as significant revisions if they do not meet the criteria for administrative or minor revisions. This is consistent with 40 CFR

§70.7(e)(4)(i). In response to comments, the commission adds

a new §122.219(b) to be consistent with 40 CFR §70.7(e)(4)(i)

which specifies that, at a minimum, every significant change in

existing monitoring permit terms or conditions and every relaxation of reporting or recordkeeping permit terms or conditions

shall be considered a significant permit revision.

The commission adopts amended §122.221 to delete

§122.221(b)(1) which specifies that significant revisions

may be issued if the change meets the criteria for a significant

permit revision. This requirement is unnecessary because

the commission has deleted the criteria for significant permit

revisions and made significant revisions the default revision

type. The subsequent paragraphs are renumbered accordingly. The commission clarifies existing §122.221(b)(2), now

§122.221(b)(1), by adding the term "complete."

The commission adopts a new §122.222 to provide operational

flexibility in order to be consistent with 40 CFR §70.4(b)(12) and

to specify requirements for off-permit changes in order to be

consistent with 40 CFR §70.4(b)(14). In response to comments

and to be consistent with §70.4(b)(12)(i), the commission

modifies §122.222(a)(4) to state that a change may be operated

under operational flexibility if the permit holder has obtained any

26 TexReg 3752 May 25, 2001 Texas Register
preconstruction authorization, which cannot be a modification

under FCAA, Title I. In response to comments, the commission

adds a new subsection (b) that allows the removal of applicable

conditions and permit terms from a permit following the removal

of a unit from a site provided the applicable requirements and

permit terms for the remaining units are not affected. Also

in response to comments, the commission amends existing

§122.222(b), now designated as §122.222(c), to specify that

written notification of operational flexibility be submitted to the

EPA on the same schedule as the executive director and to

specify that notice may be provided within two working days

of implementation of operational flexibility changes due to an

emergency and that the notice shall also include an explanation

of the emergency. These amendments are consistent with 40

CFR §70.4(b)(12). In response to comments, the commission

adds new §122.222(d) and (e) to incorporate the operational

flexibility provisions provided in 40 CFR §70.4(b)(12)(ii) - (iii).

Existing subsections (c) - (g) become (f) - (j). Also in response

to comments, the commission adds a clarifying statement to

paragraph (1) and adds new paragraphs (2) and (3) to the

newly designated §122.222(f) to describe procedures for use

with emissions trading. The commission adds clarification

regarding written notification in existing §122.222(f)(2), now

designated as §122.222(f)(4). The commission also adds

appropriate section titles to rule citations in this section. In

response to negotiations with the EPA regarding its comments

pertaining to the incorporation of minor NSR, the commission

adds §122.222(k) to address off-permit changes, consistent

with 40 CFR §70(b)(14). The commission also changes the title

of the section to Operational Flexibility and Off-Permit Changes.

The commission adopts amended §122.231 for clarification.

In response to comments, the commission amends the language in §122.231(a)(1)(B) to be more consistent with 40 CFR

§70.7(f)(1)(i). The commission adopts a new §122.231(a)(1)(C)

that is consistent with 40 CFR §70.7(f)(1)(i) requiring the executive director to reopen permits to incorporate newly promulgated

or adopted applicable requirements when the remaining permit

term is less than three years. In response to comments and

to be consistent with 40 CFR §70.7(f)(1)(iii), the commission

amends §122.231(a)(2) to specify that the executive director

has cause for reopening a permit when the executive director

or the EPA administrator determines that the permit contains

a material mistake. In response to comments and to be consistent with 40 CFR §70.7(f) and (g), the commission amends

§122.231(a)(4) to require a reopening if the executive director

or the EPA administrator determines that the permit must be

revised or terminated to assure compliance with applicable

requirements. To be consistent with 40 CFR §70.7(f)(1)(ii),

the commission adds a new §122.231(a)(6) to specify that the

executive director has cause to reopen a permit to incorporate

additional requirements, including excess emissions requirements, if those requirements become applicable to an affected

source under the acid rain program. Upon approval by the EPA

administrator, excess emissions offset plans shall be deemed to

be incorporated into the permit.

The commission also amends §122.231(b)(1) to state that the

executive director is required to submit a proposed determination no later than 180 days after receipt of a notification of a reopening initiated by the EPA if the EPA has extended the period

for response. This is consistent with 40 CFR §70.7(g)(2). The

commission amends §122.231(b)(3) to require the executive director to resolve and take action on a reopening 90 days after

receipt of an EPA objection. The previous language required the

executive director to take action on a reopening 90 days from the

end of the EPA review period or the resolution of any objection.

Part 70 does not allow the action on the reopening to be delayed

in this manner and the amendment is consistent with 40 CFR

§70.7(f)(2).

The commission adopts new subsection (c), with revisions,

to address the incorporation of minor NSR. The amendment

states that the executive director shall institute proceedings

to reopen permits and authorizations to operate that do not

contain the applicable requirements relating to minor NSR,

as adopted in §122.10(2)(H). This is consistent with 40 CFR

§70.4(d)(3)(ii)(D). The commission adds language stating that

applications for which the executive director has authorized

initiation of public notice by the effective date of this rule ,

requirements under Chapter 106, Subchapter A, or Chapter 116

of this title or any term or condition of any preconstruction permit

will be incorporated no later than permit renewal. Applications

for which the executive director has not authorized initiation of

public notice by the effective date of this rule will include NSR at

initial issuance. Existing subsections (c) - (f) become (d) - (g).

The commission amends newly designated subsection (d) to

state that, except as provided in §122.231(c), reopenings shall

be made as soon as possible. This is consistent with 40 CFR

§70.7(f)(2). The commission also clarifies the 30-day notice

language in newly designated subsection (e).

Subchapter D - Public Announcement, Public Notice, Affected

State Review, Notice and Comment Hearing, Notice of Proposed

Final Action, EPA Review, and Public Petition

The commission adopts amended §122.320 to make the sign

posting requirements in Chapter 122 consistent with those of 30

TAC Chapter 39, Public Notice, which specifies public notice requirements for solid waste, water quality and air quality permit

applications. As a part of the public notice requirements, new

source review permits are required to post signs in accordance

with the requirements of Chapter 39. The adoption makes Chapter 122 requirements consistent with Chapter 39 requirements in

order to simplify the public notice process if the executive director should, at some point, allow for concurrent NSR permitting

and operating permit public notice. The commission amends

§122.320(h) to require all lettering be no less than 1 1/2 inches

in size in block printed capital lettering, which is consistent with

Chapter 39. Also, for consistency with Chapter 39, the commission amends §122.320(h)(1) to clarify that the sign is provided

by the applicant and should substantially meet §122(h)(1)(A) -

(G). The commission also adopts a new §122.320(h)(G) requiring that the company name applying for the permit be printed on

the sign.

For consistency with the definition of affected state in 40 CFR

§70.2, the commission amends §122.330(b)(1) to clarify that

an affected state is one whose air quality may be affected by

the issuance or denial of an operating permit and also that the

state must be contiguous to Texas. The commission amends

§122.330(b)(2) to clarify that §122.330(b)(1) and (2) are two separate criteria defining an affected state.

The commission adopts a new §122.340(f) requiring an applicant to submit a copy of the notice of hearing of a permit action

and date of publication to the executive director and all local air

pollution control agencies with jurisdiction in the county in which

the site is located.

The commission adopts amended §122.350. The proposed

§122.350(b)(1) enabled the public notice period and the EPA

ADOPTED RULES May 25, 2001 26 TexReg 3753
review period to run concurrently with, rather than after the

end of the public comment period. In response to comments,

the commission amends §122.350(b)(1) to give the executive

director discretion to extend the EPA review period.

The commission adopts amended §122.360(c) to clarify that the

petition for GOPs must be filed no later than 60 days after issuance of the GOP by the executive director to address timing

concerns with the GOP issuance process.

Subchapter G - Periodic Monitoring

The commission adopts amended §122.608(e) to correctly reference compliance assurance monitoring (CAM) instead of periodic monitoring. The commission also adds language to identify

a rule citation.

Subchapter H - Compliance Assurance Monitoring

The commission adopts amended §122.706(a) and (a)(1)(E) to

correct typographical errors.

The commission also adopts amended §122.708(b)(1)(A) and

(2)(B) to correct inaccurate identifying references.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and has determined that the rulemaking does not

meet the definition of a "major environmental rule" as defined

in that statute. "Major environmental rule" means a rule, the

specific intent of which, is to protect the environment or reduce

risks to human health from environmental exposure and that

may adversely affect in a material way the economy, productivity,

competition, jobs, the environment, or the public health and

safety of the state or a sector of the state.

The commission does not believe that the adopted rules will have

an adverse, material effect on the economy, productivity, competition, jobs, the environment, or the public health and safety of the

state or a sector of the state. On May 22, 2000, the EPA set a

deadline that any program revisions necessary for obtaining full

FOP program approval must be submitted to the EPA not later

than June 1, 2001, and granted a third extension, extending up

to December 1, 2001, for all operating permits program interim

approvals (65 FR 32035). The commission’s FOP program is an

interim-approved program subject to the EPA’s notice. The commission adopts these rules to resolve inconsistencies which exist

between Chapter 122 and Part 70 so that the EPA may grant full

program approval to the commission’s operating permit program.

The commission must submit program revisions to the EPA no

later than June 1, 2001. The revisions that are necessary to

obtain full program approval will have an impact on the major

sources subject to the program. However, the commission does

not believe that this impact will be adverse or material. All of the

affected major sources in the state have either already obtained

an operating permit or have applications pending. The requirements of this adoption to incorporate preconstruction authorizations into operating permits will begin no later than renewal of

the operating permits. Although the new requirement to incorporate minor NSR may be seen as a significant change to the

program, the commission believes that most, if not all, of the facilities covered by the preconstruction authorizations are already

addressed in operating permits. As discussed in the preamble,

sites currently authorized by a rule-based GOP will most likely

need to apply for the new executive director-issued GOP or obtain a different federal operating permit due to the extensive revisions to include new and revised applicable requirements and

the minor NSR authorizations. The commission believes most

of the sites authorized by a GOP will be able to meet the new

GOPs. If the commission fails to submit a program that the EPA

can approve by December 1, 2001, the EPA must implement

40 CFR Part 71 in the state and the state could face sanctions

including loss of highway funds and increased offsets in nonattainment areas.

The adopted rules do not meet any of the four applicability criteria for requiring a regulatory analysis of "major environmental

rule" as defined in the Texas Government Code. Texas Government Code, §2001.0225 applies only to a major environmental

rule, the result of which is to: 1.) exceed a standard set by federal law, unless the rule is specifically required by state law; 2.)

exceed an express requirement of state law, unless the rule is

specifically required by federal law; 3.) exceed a requirement

of a delegation agreement or contract between the state and an

agency or representative of the federal government to implement

a state and federal program; or 4.) adopt a rule solely under the

general powers of the agency instead of under a specific state

law.

During the 75th Legislative Session, Senate (SB) 633 amended

the Texas Government Code to require agencies to perform a

regulatory impact analysis of certain rules. The intent of SB 633

was to require agencies to conduct a regulatory impact analysis

(RIA) of extraordinary rules. These are identified in the statutory

language as major environmental rules that will have a material

adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely

under the general powers of the agency. With the understanding

that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an

assessment of rules adopted by the agency in the past, it is not

anticipated that the bill will have significant fiscal implications for

the agency due to its limited application." The commission also

noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was

based, in part, on the criteria set forth in the bill that exempted

proposed rules from the full analysis unless the rule was a major

environmental rule that exceeds a federal law. If each rule proposed for implementation of federally required programs, such

as Part 70, was considered to be a major environmental rule

that exceeds federal law, then every such rule would require the

full RIA contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost

estimate and by the Legislative Budget Board (LBB) in its fiscal

notes. Since the legislature is presumed to understand the fiscal

impacts of the bills it passes, and that presumption is based on

information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require

the full RIA for rules that are extraordinary in nature. While the

revisions to Chapter 122 may have a broad impact, that impact is

no greater than is necessary or appropriate to meet the requirements of the FCAA and Part 70.

The TNRCC has consistently applied this construction to its

rules since this statute was enacted in 1997. Since that time,

the legislature has revised the Texas Government Code but

left this provision substantially unamended. It is presumed

that "when an agency interpretation is in effect at the time the

legislature amends the laws without making substantial change

in the statute, the legislature is deemed to have accepted the

agency’s interpretation." Central Power & Light Co. v. Sharp,

919 S.W.2d 485. 489 (Tex. App. Austin 1995), writ denied with

per curiam opinion respecting another issue, 960 S.W.2d 617

26 TexReg 3754 May 25, 2001 Texas Register
(Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357

(Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co.

v. Calvert, 414 S.W.2d 172 (Tex. 1967) ; Sharp v. House of

Lloyd, Inc., 815 S.W.2d 245 (Tex. 1991); Southwestern Life Ins.

Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.- -Austin 2000,

pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland

Cement Div., 563 S.W.2d 916 (Tex. 1978).

These rules are adopted in order to meet the requirements of

FCAA, Title V and Part 70. Therefore in addition to not exceeding an express standard set by federal law, these rules do not

exceed state requirements, and are not adopted solely under

the general powers of the agency because the provisions of the

TCAA and TWC provided in the STATUTORY AUTHORITY section of this preamble, provide the commission the authority necessary to implement the FOP program. The rules will achieve

their stated purpose by addressing the EPA’s comments from the

interim program approval notice and by making necessary revisions to be consistent with Part 70. The remaining applicability

criteria, pertaining to exceeding a delegation agreement or contract between the state and the federal government does not apply. Thus, the commission is not required to conduct a regulatory

analysis as provided in Texas Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed

an assessment of whether the adopted rules are subject to Texas

Government Code, Chapter 2007. The following is a summary

of that assessment. On May 22, 2000, the EPA set a deadline that any program revisions necessary for obtaining full FOP

program approval must be submitted to the EPA not later than

June 1, 2001, and granted a third extension, extending up to

December 1, 2001, for all operating permits program interim approvals (65 FR 32035). The commission’s FOP program is an

interim-approved program subject to the EPA’s notice. The commission adopts these rules to resolve inconsistencies which exist

between Chapter 122 and Part 70 so that the EPA may grant full

program approval to the commission’s operating permit program.

The commission must submit program revisions to the EPA no

later than June 1, 2001. If the commission fails to submit a program that the EPA can approve by December 1, 2001, the EPA

must implement Part 71 in the state and the state could face

sanctions including loss of highway funds and offsets in nonattainment areas.

The purpose of this rulemaking is to address the inconsistencies which exist between Chapter 122 and Part 70 so that the

EPA may grant full program approval for the state’s operating

permit program. The rules will achieve their stated purpose by

addressing the EPA’s comments from the interim program approval notice and by making necessary revisions to be consistent

with Part 70. Because the amendments are an action that is reasonably taken to fulfill an obligation mandated by federal law, the

amendments meet the exception in Texas Government Code,

§2007.003(b)(4). The commission has included elsewhere in

this preamble the necessity for the proposed rules. For these

reasons the rules do not constitute a takings under Chapter 2007

and do not require additional analysis.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that the rulemaking action relates

to an action or actions subject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination Act

of 1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and the commission’s rules in 30 TAC Chapter 281,

Subchapter B, concerning Consistency with the Texas Coastal

Management Program. As required by §281.45(a)(3) and 31

TAC §505.11(b)(2) relating to actions and rules subject to the

CMP, commission rules governing air pollutant emissions must

be consistent with the applicable goals and policies of the CMP.

The commission reviewed this rulemaking action for consistency

with the CMP goals and policies in accordance with the rules

of the Coastal Coordination Council, and determined that this

rulemaking action is consistent with the applicable CMP goals

and policies. The CMP goal applicable to the adopted rules is

31 TAC §501.12(1). This goal requires the protection, preservation, restoration, and enhancement of the diversity, quality,

quantity, functions, and values of coastal natural resource areas.

The CMP policy applicable to the adopted rules is §501.14(q),

concerning policies for specific activities and coastal natural resource areas. Title 31 TAC §501.14(q) requires commission

rules under the Texas Health and Safety Code (THSC), Chapter 382, governing emissions of air pollutants, to comply with

the regulations in 40 CFR adopted pursuant to 42 United States

Code (USC) §§7401 et seq., to protect and enhance air quality

in the coastal areas so as to protect coastal natural resource areas and promote public health, safety, and welfare. The adopted

rules are necessary in order to meet the provisions of Part 70

so that the commission’s operating permit program can obtain

full program approval. These amendments are consistent with

the previously stated goals and policies of the CMP. The permits

issued under Chapter 122 do not authorize the increase in air

emissions nor do these permits authorize new air emissions.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

This adoption deals exclusively with major sources holding

FOPs. Owners or operators of these sources should be prepared to amend their permits as discussed previously in this

preamble.

HEARING AND COMMENTERS

The commission held a public hearing on the proposal at the

TNRCC Complex in Austin, Texas, on February 20, 2001. The

commission received comments from 12 organizations and 118

individuals during the public comment period which closed on

February 26, 2001. All the commenters supported the commission’s effort to obtain final approval of its federal operating permit

program but opposed specific parts of the proposal.

Representatives from the Environmental Enforcement Project

of the Rockefeller Family Fund (EEP), Neighbors for Neighbors

(NFN), Public Citizen (PC), Sustainable Energy and Economic

Development Coalition (SEED), Lone Star Chapter of the Sierra

Club (Sierra), and the Texas Campaign for the Environment

(TCE) made comments at the public hearing.

Baker Botts, L.L.P., on behalf of the Texas Industry Project (TIP);

BP; United States Environmental Protection Agency (EPA);

ExxonMobil; NFN; Quality of Life El Paso (QLEP); Texas Chemical Council (TCC); Texas Oil & Gas Association (TXOGA); and

118 individuals submitted written comments. PC submitted

written comments on behalf of its Texas office, American Lung

Association, Texas Impact, Environmental Defense, Sierra,

Henry Lowerre & Frederick, Public Interest Research Group,

TCE, SEED, San Antonio Coalition for Environmental and

Economic Justice, Galveston Houston Association for Smog

Prevention, NFN, Mothers for Clean Air, Blue Skies Alliance,

ADOPTED RULES May 25, 2001 26 TexReg 3755
Downwinders at Risk, People United for the Environment, and

QLEP.

RESPONSE TO COMMENTS

Comment

The EPA commented that it supports the commission’s efforts

to correct previously identified inconsistencies in the FOP program. However, the EPA commented that further inconsistencies must be addressed in order for Texas to have a fully approvable program. First, the commission’s regulations do not

define "emergency" consistent with 40 CFR §70.6(g)(1). Chapter 101 contains a definition of upset, but it does not meet the

Part 70 definition of emergency. The Chapter 101 definition of

upset is broader than the Part 70 definition of emergency, hence

allowing more situations to be subject to the exemption from enforcement. Also, the definition of upset differs from the definition

of emergency in that upsets are not limited to the exceedence of

technology based emission limits. The EPA gave, as an example

of non-technology based standard, an exceedence of permit limits due to an extension of operating hours. PC also commented

that Chapter 101 exempts excess emissions which do not qualify

as emergencies under 40 CFR §70.6(g). BP concurred with the

commission’s opinion that the notification requirements of Chapter 101 meet the requirements of Part 70.

Response

The commission does not change the rule in response to these

comments. The commission believes that its definition of upset and the criteria for exempting upset emissions from compliance is consistent with the definition of emergency under Part

70. The EPA definition of emergency is an event that is sudden,

reasonably unforeseeable, and beyond the control of the owner

or operator that causes the exceedence of a technology based

standard. The commission definition of upset is an unscheduled

occurrence or excursion of a process or operation that results

in an unauthorized emission of air contaminants. The commission’s definition of upset includes events other than technology

based failures which can cause unauthorized emissions. However, the requirements that must be met in order to be considered an upset are consistent with the language and intent of Part

70. Chapter 101 specifies that upset emissions are exempt from

compliance with air emission limitations if the owner or operator complies with the requirements of §101.6; the unauthorized

emissions were caused by a sudden breakdown of equipment

beyond the control of the operator; the unauthorized emissions

did not stem from any activity that could have been foreseen and

avoided and could not have been avoided by good design, operation, and maintenance practices; the air pollution control equipment or processes were maintained and operated in a manner

consistent with good practice for minimizing emissions; prompt

action was taken once the operator knew that applicable emission limitations were being exceeded; the amount and duration of

the unauthorized emissions were minimized; all emission monitoring systems were kept in operation, if possible; the owner’s

or operator’s actions in response to the unauthorized emissions

were documented by contemporaneous operation logs or other

relevant evidence; the unauthorized emissions were not part of

a recurring pattern indicative of inadequate design, operation,

or maintenance; and the unauthorized emissions did not cause

or contribute to a condition of air pollution. The commission believes that its requirements under Chapter 101 are at least equivalent to those under the federal rules concerning emergencies.

Section 101.11 requires an owner or operator of a source to meet

certain criteria in order to receive an exemption for unauthorized

emissions. These criteria require that the unauthorized emission must be the result of sudden breakdowns in equipment or

process beyond the control of the owner or operator and could

not have been avoided by good design, operation, and maintenance. The section also requires the proper documentation of

actions taken in response to the upset. In §101.11, the commission states that upset emissions are exempt from compliance

with emission limitations in permits or rules if the owner or operator satisfies the exemption criteria. The exemption requirements were developed from language suggested by the EPA

during the revision of the commission’s upset/maintenance rules

in the Spring and Summer of 2000 and are equivalent to the

federal conditions that establish the existence of an emergency.

The rules containing these requirements were subsequently approved into the SIP.

To consider the EPA’s example of a non-technology based standard, an extension of operating hours might represent an excursion from normal process, but it would have to be a planned or

scheduled event. Even if the planning or scheduling interval was

short, it would not meet the criteria to be exempt from compliance

with the applicable rule, since it was a planned event. The commission’s criteria to exempt upset emissions require the owner or

operator to demonstrate that the event was a sudden breakdown

in equipment or process, was beyond the control of the owner

or operator, and could not have been foreseen or avoided by

good design, operation and maintenance practices. These criteria clearly exclude operator error from exemption which might

also be taken as an example of an event that is non-technology

based.

Comment

The EPA commented that Chapter 101 improperly provides for

exemptions from permit requirements rather than an affirmative

defense as required in 40 CFR §70.6(g)(2) and (3).

Response

The commission does not change the rule in response to this

comment. Under 40 CFR §70.6(g)(2), an emergency constitutes

an affirmative defense in any action brought for noncompliance

with technology based emission standards. The burden of proof

to establish the occurrence of an emergency is on the owner

or operator of the source; therefore, the responsibility to establish an affirmative defense is that of the owner or operator. The

Part 70 definition of emergency includes situations that are unforeseen and unavoidable and assumes proper operation of the

source. The commission assumes that, under the federal rules,

any proceeding evaluating the existence of an emergency and

determining that an emergency existed will result in the deferment of enforcement for any emissions in excess of permitted or

otherwise authorized limits.

The commission believes that its requirements under Chapter

101 are equivalent to those under the federal rules concerning

emergencies. Section 101.11 requires an owner or operator of a

source to meet certain criteria in order to receive an exemption

for unauthorized emissions. These criteria require that the unauthorized emission must be the result of sudden breakdowns in

equipment or process beyond the control of the owner or operator and could not have been avoided by good design, operation,

and maintenance. The section also requires the proper documentation of actions taken in response to the upset. The exemption requirements were developed from language suggested by

26 TexReg 3756 May 25, 2001 Texas Register
the EPA during the revision of the commission’s upset/maintenance rules in the Spring and Summer of 2000 and are equivalent to Part 70 conditions that establish the existence of an

emergency. The revisions to Chapter 101 implementing these

requirements were subsequently approved into the SIP and they

clearly place the burden of proof to establish the exemption conditions on the source owner or operator. In §101.11, the commission states that upset emissions are exempt from compliance

with emission limitations in permits or rules if the owner or operator satisfies the exemption criteria. The emissions are still

considered unauthorized, and the phrase "exempt from compliance" means that the commission will not pursue an enforcement

action for that particular occurrence of unauthorized emissions.

The commission believes that this is the same result that occurs

from the application of the emergency and affirmative defense

criteria in Part 70 and that the two procedures place an identical

burden of proof on the owner or operator and achieve equivalent

results.

Comment

The EPA commented that 40 CFR §70.6(g)(5) provides that an

upset in a SIP cannot substitute for the emergency reporting and

related affirmative defense provisions in Part 70. Therefore, a

separate emergency provision is required in order to correct this

inconsistency.

Response

The commission believes that the arguments EPA made in the

final Part 70 concerning the de minimis justification for minor permit modification procedures (57 FR 32284) can be used to support the insignificant distinctions between the Chapter 101 upset provisions and the Part 70 emergency provisions. Although

the goal of Title V is to issue permits that assure compliance

with applicable requirements, the provisions concerning enforcement are general in nature. Title V does not have any provisions

for the treatment of emergencies or upsets for major sources.

Thus the emergency provisions in Part 70 are not required to

conform to statutory restrictions for emergencies. Since EPA is

not constrained by statutory limitations for emergency provisions,

the commission believes that EPA can exercise its discretion to

approve de minimis exemptions to the emergency provision requirements of Part 70. The differences between the upset provisions of Chapter 101 and the emergency provision in Part 70

are not significant and requiring an emergency provision in addition to the upset provisions in Chapter 101 would "yield a gain

of trivial or no value," Alabama Power Company v Costle, 6 36

F.2d 323, 361 (D.C. Cir. 1979). As developed in the immediately

previous response, the commission believes that the reporting

and exemption requirements in Chapter 101 are equivalent to,

and yield the same results as, the emergency and affirmative defense provisions of Part 70. Reports of unauthorized emissions

under Chapter 101 must also be included or referenced in deviation reports under §122.145, Reporting Terms and Conditions.

The commission notes that the Chapter 101 upset/maintenance

provisions have been approved into the SIP. The result of including a separate emergency provision for upset reporting would be

two required reports on the same event and containing the same

information. The commission believes this would be a redundant

and unnecessary requirement and does not change the rule in

response to this comment.

Comment

PC commented that Chapter 101 violates federal requirements

by automatically exempting facilities from penalties and injunctive relief; exempting emissions from predictable and scheduled

events; exempting violations which are not technology based;

and barring the EPA’s and citizens’ ability to enforce applicable

requirements. NFN commented that broad, automatic exemptions that the commission allows, coupled with the barriers to

the EPA or citizen enforcement of applicable requirements, violate federal requirements. EEP commented that operating permits should not be drafted to provide special exemptions when

upsets occur and that it is not appropriate for a regulatory agency

to write forgiveness right into a permit. If something goes wrong

and the permit holder fails to comply with the permit limit, that is

a violation that should subject the permit holder to enforcement

action.

Response

The commission does not change the rule in response to this

comment. The commission rules governing the exemption from

enforcement of unauthorized emissions from upsets and maintenance do not provide an automatic exemption. The commission

has previously stated in this response to comments (and in the

rulemaking to the recently revised and the EPA approved provisions in Chapter 101) that the responsibility, under commission

rules, of the owner or operator of a source to demonstrate that

upsets resulting in unauthorized emissions are sudden and unavoidable events beyond his or her control and could not have

been prevented by good design, operation, and maintenance

practices. The exemption criteria for emissions resulting from

maintenance place a similar burden of proof on the owner or

operator to demonstrate that maintenance emissions could not

have been prevented through planning and design and are not

part of a recurring pattern. The commission’s rules only address

enforcement under state law and do not preclude action by the

federal government nor the introduction of evidence by citizens.

Comment

The EPA requested clarification of whether Chapter 101 is

consistent with Part 70. Title 40 CFR §70.6(g)(3)(i) specifies

that the permit holder must be able to identify the cause of the

emergency in order to establish an affirmative defense. Section

101.6(a)(2)(A) and (3)(A) only require that the owner identify the

cause in its notice if it knows the cause. The EPA also pointed

out that §101.11(a) specifies that the exemption only applies

to unauthorized emissions caused by a sudden breakdown of

equipment or process.

Response

The commission does not change the rule in response to

this comment. The commission believes that Chapter 101

is consistent with Part 70. The EPA is correct in stating that

§101.6(a)(2)(A) and (3)(A) require reporting the cause of an

upset if that cause is known at the time of original notification.

Emissions resulting from upsets must be reported to the

commission within 24 hours if those emissions are above a

certain specified amount. The commission recognizes that

the cause of the upset may not be known within that period.

Should the cause of an upset be determined to be different

than that originally reported or was not known at the time of the

original report, then a follow-up report under §101.6(c) must be

submitted to the commission within two weeks of the upset.

Comment

ADOPTED RULES May 25, 2001 26 TexReg 3757
The EPA commented that Chapter 101 is inconsistent with 40

CFR §70.6(g)(3)(iv), which contemplates written notification of

emergencies. Also, Chapter 101 is inconsistent with Part 70 in

that Chapter 101 only provides for prompt reporting of upsets

which exceed the reportable quantity. Title 40 CFR §70.6(g)

requires the reporting of all emergencies. Contrary to the requirements of 40 CFR §70.6(g), Chapter 101 would allow upsets which did not exceed the reportable quantity be eligible for

an exemption for enforcement even though notification was not

submitted to the state.

Response

The commission does not change the rule in response to this

comment. The commission does not believe that the language

in §70.6(g)(3)(iv) contemplates a particular form of a notice, but

rather, it requires certain information to be provided to the permitting authority regarding an emergency. Further, the commission

believes that had EPA intended to specifically require a written

notice, it would have done so, as it does in the National Pollutant

Discharge and Elimination System (NPDES) rules. EPA states

in the preamble to the 1992 Part 70 that the emergency provision

in §70.6 is "modeled after the NPDES upset provision in 40 CFR

§122.41," (57 FR 32279). Although EPA notes that the NPDES

provisions will not be binding precedent for the implementation

of Title V, it did state that it would look to the NPDES program for

guidance, (57 FR 32260). The provisions of §70.6(a)(3) are patterned after 40 CFR §122.41(n), Upset. Title 40 CFR §122.41(n)

requires a permittee to submit notice of an upset as required by

§122.41(l)(6)(ii)(B). The rule provides that "any information shall

be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission shall

also be provided within five days of the time the permittee becomes aware of the circumstances." In the NPDES rules, EPA

required specific methods for the reporting of an upset. In Part

70, EPA requires only that a "permittee submitted notice of the

emergency" as one of the criteria in order to be eligible for the

affirmative defense of emergency.

The commission believes that its requirement for notification

of reportable upsets is equivalent to and may, in some cases,

be more timely than Part 70 requires. Owners or operators

of sources may notify the commission by phone, in writing,

by telefax, or through electronic data transfer within 24 hours,

which is twice as prompt as the Part 70 requirement to submit

notice within two working days. The commission believes

that any of these methods provides a verifiable method of

notification and is consistent with Part 70. The commission has

developed the concept of reportable quantity based on a similar

federal concept under the Emergency Planning and Community

Right-to-Know Act (EPCRA), regarding when to report releases

to any environmental media. Upsets that result in emissions

below a reportable quantity do not need to be reported within 24

hours but must be recorded and reported in deviation reports

and are subject to the same exemption criteria as any upset.

Permit holders are required to make this information available

upon request.

Comment

QLEP and 118 individuals commented that deviation reports

should be submitted within 48 hours of a violation and that the

commission’s rules allow a permit holder to wait six months

before reporting a violation to the commission. NFN also

commented that six months between reports about monitoring

activities, such as stack tests and inspections, is not prompt.

Also, excess emissions below the reportable quantity become

a company’s in-house records, which are difficult for the

public to obtain, impeding citizen enforcement action or citizen

questioning of exemptions for unreported excess emissions.

In addition, NFN stated that the commission’s reports indicate

a 50% decrease in reported excess emissions from upset,

maintenance, startup, and shutdown occurrences. EEP also

expressed concern that the proposed rules will allow polluters to

avoid reporting of violations for six months and that they see no

reason why these violations cannot and should not be reported

within 48 hours of occurrence. PC commented that upsets

under the reportable quantity are not required to be reported.

Response

The commission does not change the rule in response to these

comments. The commission adopted the concept of reportable

quantity into the upset/maintenance rules in 1997. While every upset must be recorded, those that exceed a certain reportable quantity must be reported to the commission within 24

hours of occurrence. This concept is patterned after a similar

concept used in the EPCRA and has resulted in a decrease in

the number of 24-hour reports sent to the commission. The reportable quantity concept allows the commission to concentrate

resources on those events most likely to affect the general public. All upsets, regardless of size, are subject to the exemption

criteria in §101.11. The records of non-reportable upsets would

be retained by the source owner or operators and submitted to

the commission every six months in accordance with deviation

reporting requirements, and must be made available to the commission upon request. These events would be examined under

the exemption requirements of §101.11, and those failing to meet

the requirements for exemption will be subject to enforcement.

Comment

PC commented that the commission’s rules allow facilities to report upset, startup, shutdown, and maintenance under Chapter

101 rather than satisfy the deviation reporting requirements in

Chapter 122. Also, Chapter 101 does not provide for compliance certifications. Chapter 122, to satisfy Part 70, should be

amended to clarify that upset emissions must be reported as

deviations.

Response

The commission does not change the rule in response to this

comment. Deviations, as defined in Chapter 122, are any indications of noncompliance with the conditions of a permit. The commission considers any unauthorized emissions resulting from upset, start-up, shutdown, and maintenance to be deviations and

requires that they be included or referenced in any six- month deviation report submitted to the commission under §122.145. As

deviations, these reports of unauthorized emissions are subject

to the compliance certification requirements of §122.146, Compliance Certification Terms and Conditions. Any deviations that

do not result in unauthorized emissions must also be recorded

and submitted as deviations under §122.145.

Comment

The EPA commented that the amnesty provisions set forth in SB

766, Section 12 (§12) poses impediments to the minimum enforcement and implementation authorities that Texas must maintain in order to remain an approved operating permit program

under Part 70. The EPA is concerned that the amnesty provision may surrender the commission’s ability to assure compliance with applicable requirements of the Clean Air Act at facilities

subject to the Part 70 operating permit program, by prohibiting

26 TexReg 3758 May 25, 2001 Texas Register
the state from initiating an enforcement action against a permit

holder for certain preconstruction violations. The EPA is calling

upon Texas to address the concerns with amnesty in the Attorney

General’s statement, as required by 40 CFR §70.4(b)(3). The

opinion should also evaluate and attest to the adequacy of the

state’s authority to carry out all aspects of the program, specifically with respect to whether §12 restricts implementation and

enforcement of the state program.

Response

Because EPA has requested an Attorney general’s statement on

the impact of the amnesty provisions from SB 766, the commission does not believe it is appropriate to provide a response to

that issue in this adoption. The commission has forwarded EPA’s

comments to the Attorney general’s and anticipates submitting

a statement by the end of June, 2001.

Comment

BP suggested that the commission add a definition of affected

state in §122.10 which is consistent with the language in

§122.330.

Response

The commission does not change the rule in response to this

comment. Section 122.330(b) specifies which states may be affected states, and §122.330(b)(1) and (2), as proposed, specifies

the criteria for an affected state as defined in 40 CFR §70.2.

Comment

PC supports the inclusion of minor NSR as an applicable requirement and recommended additional amendments to the definition

of applicable requirement. The definition should include all requirements that have been promulgated or approved by the EPA

through rulemaking at the time of issuance but have future-effective compliance dates, as required by 40 CFR §70.2.

Response

The commission agrees and amends the definition of applicable

requirement in response to this comment. A statement concerning the inclusion of requirements with future-effective dates appears in 40 CFR §70.2. It is currently the commission’s practice

to include, in permits, requirements that have been promulgated

or approved by the EPA through rulemaking at the time of permit

issuance but which have future effective compliance dates. The

commission will continue this practice.

Comment

PC stated that the definition of applicable requirement should

include a broad statement that applicable requirements include

"any standard or other requirement provided for in the applicable implementation plan approved or promulgated by the EPA

through rulemaking under Title I of the Federal Clean Air Act

(FCAA) that implements the relevant requirements of the FCAA,

including any revisions to that plan." PC commented that the definition of applicable requirement does not appear to include all

provisions in the applicable SIP. PC observed that Texas’ rules

may change before or without corresponding changes in the SIP.

Response

The commission does not change the rule in response to this

comment. The commission currently includes in the definition

of applicable requirement those chapters and portions of chapters provided in the SIP that are relevant to permit content. The

definition of applicable requirement includes those requirements

that implement relevant requirements of the FCAA.

Comment

TCC supports the proposed minor NSR/Part 70 integration. TCC

requested that TNRCC take into consideration stakeholder resource limitations when developing the implementation process.

TCC suggested that the process be designed to allow minor NSR

authorizations to be effectively and efficiently incorporated into

the operating permit while providing the option to phase-out duplicative NSR requirements. TXOGA envisions an approach that

allows for elimination of redundant and duplicative standards and

provisions contained in NSR permits from overlapping regulatory requirements. TXOGA explained that this approach would

result in a simple, more streamlined process. TCC and TXOGA

proposed that minor NSR permits be incorporated into FOPs by

reference only. TCC proposed that subsequent permit modifications or renewals go through stringency reviews for the purpose

of removing duplicative special conditions determined to be redundant. TCC explained that this proposed process would "help

filter out" duplicative requirements in minor NSR permits that

are also in Title V operating permits. Similarly, ExxonMobil requested that the following sentence be added to §122.142(b)(3):

"Such preconstruction authorizations may be incorporated into

the Title V permit by reference."

Response

The commission does not change the rule in response to this

comment. The adopted rule requires the executive director to

institute proceedings to reopen permits for the incorporation of

minor NSR. The commission agrees that this incorporation could

be done by simply including minor NSR permit numbers. The

executive director is in the process of identifying the most efficient implementation method of eliminating duplicative, redundant, and/or contradicting applicable requirements between minor NSR and FOPs consistent with federal requirements. The

commission will continue to work with the stakeholders in the

development of procedures for the incorporation of minor NSR.

Comment

BP commented that the incorporation of NSR into the operating

permit program should not result in additional permit fees.

Response

The incorporation of minor NSR into the operating permit program will not cause an increase in application fees for NSR permitting.

Comment

The EPA commented that the commission has never submitted

Chapter 106, Subchapter A, General Requirements as a SIP revision and that it encourages the commission to do so.

Response

In April 2001, the commission proposed amendments to Chapter

106, Permits by Rule, for proposal and publication that address

recordkeeping and what types of maintenance emissions may

be authorized under permit by rule. Chapter 106, Subchapter A

will be submitted as a SIP revision after the conclusion of that

rulemaking.

Comment

PC recommended that the phrase "as found using, at a minimum, compliance method data from monitoring, recordkeeping,

ADOPTED RULES May 25, 2001 26 TexReg 3759
reporting, or testing required by the permit" be deleted from the

definition of deviation. PC explained that permit holders should

be required to identify and report a deviation if they have any evidence of a deviation. PC commented that Chapter 101 should

clarify that facilities may not use selective reporting to avoid reporting a deviation. Facilities must not be allowed to monitor

repeatedly until the results are to their liking and report only the

favorable results. Any monitoring or testing performed by the facility that indicates a potential violation must be included in the

deviation report. PC argued that permit holders should not be allowed to avoid reporting a deviation of which they are aware simply because the deviation was not identified by the compliance

method required by the permit. PC agrees with the definition’s

introductory clause that a deviation is any indication of noncompliance. PC explained that the compliance certification rules can

then require that certification be based on all reasonably available credible evidence including compliance method data from

monitoring, recordkeeping, reporting, or testing required by the

permit.

Response

In response to this comment, the commission adds rule language to the definition of "deviation" and to §122.146(4) stating that the determination of a deviation will not be limited to

information obtained from required monitoring. This language

does not impose additional requirements but is added as a clarification. The minimum compliance method data that must be

used to identify deviations is consistent with that identified in

40 CFR §70.6(c)(5) as necessary for FOP compliance certifications. However, the definition of deviation does not relieve a permit holder from considering any additional information to identify

a deviation. The commission already requires permit holders to

consider additional information to determine whether a deviation

has occurred.

Comment

PC commented that the definition of emission unit appears to

be more limited than the federal definition. PC noted that the

agency’s definition includes "a discrete or identifiable structure,

device, item, equipment or enclosure" but that the federal definition also includes an "activity." PC stated that the commission

should amend its rules to use the federal definition of emission

unit.

Response

The commission does not change the rule in response to this

comment. The regulatory and conventional concept of an emission unit has always been that of a tangible item. This concept

is codified in the commission’s definition of emission unit. Under

Chapter 122, any tangible item housing an activity that produces

air pollutants is an emission unit. Thus, the commission’s definition of emission unit is substantially equivalent to that of the

EPA’s.

Comment

PC commented that the commission’s rules should delete the

definition of final action, since it does not include all actions relating to operating permits which may constitute final action by the

commission. The definition is unnecessary, creates confusion,

and it should be left to the courts to determine which agency actions constitute final action.

Response

The commission does not change the rule in response to this

comment. The term "final action" indicates the end of the executive director’s review process and that a permit has been issued

or denied. Any subsequent action by either the commission, the

EPA, or the public is not included in this term.

Comment

PC commented that the definition of major source is impermissibly limited. Section 122.10(14)(C)(xxvii) limits sources for which

fugitives should be counted in determining major source status.

Response

The commission does not change the rule in response to this

comment. The commission believes that Chapter 122 permissibly identifies sources for which fugitive emissions must be considered in major source determinations in a manner that is consistent with FCAA, §302(j) and with Part 71. The FCAA, §302(j)

specifies that in determining whether a source is major, fugitive

emissions are included when determined by rule by the administrator. Rulemaking for FCAA, §302(j) was last done on August 7, 1980. Part 70 specifies that fugitive emissions should

not be considered in determining major source status unless the

source belongs to one of the source categories identified in 40

CFR §70.2, major source definition. The definition further enumerates source categories for which fugitive emissions must be

included in the major source determination, including stationary

source categories regulated by a standard promulgated under

FCAA, §111 or §112, but only with respect to those air pollutants that have been regulated for that category. Title 40 CFR

Part 71 (Part 71) sets forth the FOP program that would be implemented by the EPA in a state without an approved operating

permit program. In the preamble for the Part 71 final rule, the

EPA discussed the issue of the missing reference to August 7,

1980, and acknowledged that "it did not follow the procedural

steps necessary under §302(j) to expand the scope of sources

in this category for which fugitives must be counted in Part 70

major source determinations." Therefore, the EPA promulgated

the final Part 71 is consistent with FCAA, §302(j). The definition

of major source in Part 71 specifies that fugitive emissions must

be counted for stationary source categories regulated by a standard promulgated as of August 7, 1980, under FCAA, §111 or

§112, but only with respect to those air pollutants that have been

regulated for that category. The Chapter 122 definition of major

source requires fugitive emissions to be considered in determining a major source for any stationary source category regulated

under FCAA, §111 or §112 for which the EPA has made an affirmative determination under FCAA, §302(j). Thus, the definition of major source in Chapter 122 is consistent with the definition of major source in Part 71, as well as FCAA, §302(j). Since

the aforementioned source categories are the only sources that

would be required to count fugitive emissions in the event that

the EPA implements Part 71, it is the commission’s opinion that

only these sources should be required to count fugitive emissions in determining major source status for Chapter 122 and

Part 70 applicability. Although the EPA did not submit comments

on this issue during the comment period, it is the commission’s

understanding that the EPA concurs with this analysis.

Comment

PC commented that §122.10(14)(E) limits the sources for which

fugitive emissions must be considered in determining the major

source status of facilities in nonattainment areas; Part 70 does

not establish such limits.

Response

26 TexReg 3760 May 25, 2001 Texas Register
The commission does not change the rule in response to this

comment. The commission believes that §122.10(14)(E) is consistent with Part 70. Title 40 CFR §70.2, Major Source, (2) specifies that fugitive emissions of a stationary source shall not be

considered in determining whether it is a major stationary source

unless the source belongs to one of the specified source categories. Since 40 CFR §70.2, Major Source, (2) specifies the

inclusion of fugitive emissions for any air pollutant, the specified

source categories are also the only source categories required

to include fugitive emissions under 40 CFR §70.2, Major Source,

(3), which defines major stationary sources in nonattainment areas. Therefore, the commission believes that §122.10(14)(E) is

consistent with the definition of major source in 40 CFR 70.2.

Comment

PC commented that §122.10(14)(F) allows facilities to calculate

potential to emit without including emissions from temporary

sources. PC also commented that §122.204(c), Temporary

Sources should be deleted. The commission cannot exempt

temporary source calculations from a site’s potential to emit.

Response

The commission does not change the rule in response to this

comment. The commission did not propose amendments to

§122.204; therefore, under Texas administrative law, the section

cannot be amended at this adoption. Sections 122.10(14)(F)

and 122.204(c) specify that temporary sources located at a site

for less than six months would not affect a major source determination. If a temporary source remains at a site for more than six

months, the emissions must be included in the potential to emit

and any applicable requirements must be included in the operating permit.

Comment

PC commented that the commission’s rules do not include a definition of fugitive emissions and suggested incorporating the definition contained in 40 CFR §70.2.

Response

The commission does not change the rule in response to this

comment. The commission does not believe that it is necessary

to include a definition of fugitive emissions in Chapter 122 since

Chapter 101 defines fugitive emission as any gaseous or particulate contaminant entering the atmosphere which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening designed to direct or control its flow. This

is consistent with Part 70 which states that fugitive emissions

are those emissions which could not reasonably pass through a

stack, chimney, vent, or other functionally-equivalent opening.

Comment

PC questioned why the applicability of Chapter 122 is based

on the eligibility of a deferral rather than an actual deferral. PC

requested that the phrase "no longer eligible for a deferral"

contained in §122.120(a)(4) be replaced with the phrase "no

longer deferred." PC explained that their request would clarify

§122.120(a)(4) and make it consistent with Part 70. BP commented that the commission should clarify in §122.120(a)(4)

the types of deferrals which relieve the operator from the

obligation to obtain a permit. PC questioned the necessity and

appropriateness of §122.120(b). PC stated that it is unclear

what sites or types of sites will fall under this exemption that are

not already subject to §122.120(a). PC added that an exemption

for individual sites is not allowed under Part 70.

Response

The rule was not changed in response to this comment. The

EPA has granted permitting authorities the discretion to defer Title V operating permitting requirements until December 9, 2004,

for area sources of air pollution that are subject to certain regulations (64 FR 69637). Based on the deferral in that rulemaking

those area sources are not required to obtain operating permits.

Therefore, those sources are eligible for deferral of a Title V permit; however, the EPA may at some future date determine that

those sources are no longer eligible for deferral. The commission’s text makes clear that, should that occur, those sources

must obtain an operating permit. Section 122.120(b) is intended

to help owners and operators correctly apply Chapter 122. The

commission cannot anticipate what types of sites would be eligible for deferral.

Comment

PC commented that §122.120(b) is written too broadly. PC explained that owners or operators of sites which may qualify for

exemption or deferral from the requirements of Chapter 122 are

not themselves exempt from the Chapter 122 requirements. PC

continued that those persons may own or operate multiple sites,

some of which, are not exempt.

Response

The commission agrees with PC’s comment and deletes the

phrase "owners and operators of one or more of the" from

§122.120(b).

Comment

PC commented that §122.122(e), Potential to Emit allows facilities to keep on site the registration limiting its potential to emit. If

a registration is not submitted to the commission, the limits would

not be practically enforceable, as is required by the EPA’s 1996

document "Effective Limits on Potential to Emit."

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. The commission agrees that a registration limiting a site’s potential to emit must be practically enforceable, but that certified registrations kept onsite meet this

requirement. The §122.10 potential to emit definition specifies

that "any certified registration or preconstruction authorization

restricting emissions ...shall be treated as part of its design if

the limitation is enforceable by the EPA." The EPA, in 40 CFR

§52.21(b)(17), defines federally enforceable as "all limitations

and conditions which are enforceable by the administrator, including those...requirements within any applicable SIP." Since

the commission submitted §122.122 for incorporation into the

SIP, the commission considers limits established under §122.122

to be federally enforceable. Further, §122.122 specifies that certified registration of emissions and records demonstrating compliance with the registration must be kept on-site, or at an accessible location, and shall, upon request, be provided to the commission or any air pollution control agency having jurisdiction.

The commission does not believe that a certified registration of

emissions must be submitted in order to be practically enforceable, since the owner or operator must make the registration and

any supporting documentation available during an inspection.

Comment

PC was supportive of the discontinuation of the phased permit

process in §122.131.

ADOPTED RULES May 25, 2001 26 TexReg 3761
Response

The commission agrees that the phased permit process should

not be an option for new applications and appreciates the comment.

Comment

PC commented that §122.130 and §122.132(c) are inconsistent

with 40 CFR §70.5(c) by allowing applicants to submit abbreviated initial applications and that this procedure does not allow the

public to gather the necessary information to participate in operating permit proceedings. Complete applications are not due

unless requested by the executive director, hence, applications

may not contain emissions information, applicable requirements,

or compliance information. Therefore, abbreviated initial applications should be eliminated from the commission’s rules. PC also

made similar comments on §122.502(a), Authorization to Operate, which was not proposed for amendment and allows the

owner or operator to submit an abbreviated application, which

is insufficient to comply with the 40 CFR §70.6(d)(2) and FCAA,

§7661b. NFN also expressed concern that abbreviated initial

applications would impair the commission’s access to full information and the public’s right to participate in the permit review.

Response

The commission does not change the rule in response to

this comment. Section 122.132(c) states that an applicant

may submit an abbreviated application and that the executive

director shall inform the applicant in writing of the deadline for

submitting the remaining information. The executive director

requires a full application for every operating permit action. The

remaining information required for a full application is itemized

in §122.132(e), including applicable requirements for each

emission unit and a compliance plan. The commission uses

abbreviated applications primarily to identify major sources and

they were the basis for the subsequent schedule developed to

require applicants to submit full applications.

When initially implementing the program, the commission required abbreviated applications to be submitted for all permitting

actions. This required an abbreviated application for every site

to be submitted. The executive director did not, however, intend

to begin the technical permit review on all applications at the

time each application was submitted. Allowing owners and operators to submit abbreviated applications enabled the executive

director to develop the full application submittal schedule without

requiring the applicant to continually update and certify the detailed application information prior to the technical review of the

permit. Once all information has been submitted, the executive

director performs a technical review and develops a draft permit, which will be made available for comment during the public

notice period, along with the full permit application. The application process described here also assists interested persons

since their review of the applications would not be done on outdated application information. Further, interested persons would

not have to track the submittal of outdated application information.

Comment

PC commented that §122.132(e) does not require an application to include all of the information required by 40 CFR §70.5(c),

that the rules themselves need to specify the required application content and that it is not sufficient that the applicable form

developed by the agency may contain the information required.

Chapter 122 should be amended to require applications to include 1.) identifying information, including company name and

address, owner’s name and agent, and telephone number and

names of plant site manager or contact; 2.) a description of the

source’s processes and products, including any associated with

alternate scenarios identified by the source; 3.) all emissions

of pollutants for which the source is major, and all emissions of

regulated air pollutants, including a description of all emissions

of regulated air pollutants emitted from any emission unit, except

where such units are exempted; 4.) identification and description

of all points of emissions in sufficient detail to establish the basis

for fees and applicability of requirements; 5.) emissions rate in

tons per year and in such terms as are necessary to establish

compliance consistent with the applicable standard reference

test method; 6.) fuels, fuel use, raw materials, production rates

and operating schedules to the extent they are necessary to determine or regulate emissions; 7.) identification and description

of all pollution control equipment and compliance monitoring devices or activities; 8.) limitations on source operation affecting

emissions or any work practice standards, where applicable for

all regulated pollutants at the source; 9.) other information required by any applicable requirement, including information related to stack height limitations developed pursuant to FCAA,

§123; 10.) calculations on which emissions related information

is based; 11.) an explanation of any proposed exemptions from

otherwise applicable requirements; and 12.) additional information as necessary to define alternative operating scenarios identified by the source or to define permit terms and conditions. PC

also commented that the general permit application should be

required to include information regarding emissions. NFN also

commented that Chapter 122 should be amended to specify that

applications include a detailed explanation of how facilities qualify for exemptions and documentation to support that explanation. The detailed explanation should include a precise listing of

how the facility complies with each of the requirements of the exemption; an answer of "none" to a question is not adequate. The

facility should also be required to certify in its annual compliance

certification whether or not it continues to meet each requirement for an exemption. Certifications for exempt status would

decrease the likelihood of false claims since they carry the consequence of personal liability.

Response

The commission does not change the rule in response to this

comment. The commission agrees that Chapter 122 must

specify the required application content, however, 40 CFR

§70.5(c) states that the permitting authority may use discretion

in developing application forms that best meet program needs

and administrative efficiency and that the forms and attachments shall include the elements identified in Part 70. The

commission believes that the rule and the forms developed

for the program meet the requirements of 40 CFR §70.5(c). If

necessary, §122.136 enables the executive director to request

emission calculation information. Specific emissions information

is contained in NSR permits and Emissions Inventory reports,

as required by §101.10. Because that information is already

available, the duplication of that information in operating permit

application forms is not necessary. Additionally, the commission

does not require fee information in operating permit applications

because major sources annually report emission inventories on

which fees are assessed.

The commission believes that it requires sufficient information

to determine applicability of specific requirements. The commission uses application forms that require applicants to provide the

26 TexReg 3762 May 25, 2001 Texas Register
basis for establishing why a facility is not subject to a given requirement. For example, some regulations do not require facilities below certain sizes to comply with the regulations and, in all

cases, the applicant is required to identify the regulatory citation

that excludes the facility from the regulation. All application information is required to be certified by the responsible official. The

certification establishes that the submitted information is true,

accurate and complete. The certification to whether or not a facility meets an exemption is only required when the application is

submitted. If the status of an emission unit has changed and the

unit is no longer exempt from an applicable requirement, the permit holder must seek the appropriate revision to the FOP, which

would include a compliance certification. Once the permit is revised, the permit holder must certify compliance with the applicable requirement annually and this would include certifying that

a unit is in compliance with its applicable requirements. When

permit holders certify compliance status, they are also certifying

that a unit’s applicability has not changed, and that they continue

to be exempt.

Comment

PC commented that §122.132(e)(4)(C)(iii) be amended for consistency with 40 CFR §70.5(c)(8)(iii)(C). Compliance schedules

for out of compliance sources should include an enforceable sequence of actions with milestones and a statement that any compliance schedule is supplemental to, and does not sanction noncompliance with, the applicable requirements.

Response

The commission changes the rule in response to this comment.

The commission agrees that §122.132(e)(4)(C)(iii) should be

amended to specify that any such schedule of compliance shall

be supplemental to, and shall not sanction noncompliance with,

the applicable requirements on which it is based for consistency

with 40 CFR §70.5(c)(8)(iii)(C). The commission does not

believe that Chapter 122 requires an amendment to specify that

compliance plans include an enforceable sequence of actions

with milestones because this information is already required

by §122.132(e)(4)(C)(ii) and (iv). Section 122.132(e)(4)(C)(ii)

states that a compliance plan for any emission unit not in compliance with applicable requirements shall include a narrative

description of how the emission unit will come into compliance

with all applicable requirements. Further, §122.132(e)(4)(C)(iv)

specifies the compliance plan include a schedule for the submission, at least every six months after issuance of the permit,

of certified progress reports. Section 122.142(e)(2), specifies

that a permit shall contain a requirement to submit progress

reports, which include the dates for achieving the activities,

milestones, or compliance required in the compliance schedule

and the dates that these were achieved or an explanation of

why the dates were not or will not be met and any preventative

or corrective measures adopted.

Comment

EEP commented that if a facility is out of compliance with applicable requirements, the permit must include a compliance plan and

that compliance certifications are required both at the time that a

permit application is submitted and on an annual bases. Sierra

noted the importance of compliance certifications and monitoring, recordkeeping and reporting that are added to permits. In

the past, many of these requirements were not spelled out in the

permits and the information was not easily accessible. Title V is

very powerful program for ensuring that these facilities are going

to be in compliance with all of these various requirements if all

these requirements are going to be in the permit.

Response

The commission does not change the rule in response to this

comment. The commission agrees that the operating permits

program provides a number of effective enforcement tools. Under the current program, an application is required to contain

a compliance plan. Compliance certifications are required for

permit applications and on an annual basis for permits. Section 122.142(e) specifies that permits shall contain a compliance schedule for units not in compliance with the applicable

requirements at the time of initial permit issuance or renewal.

As previously stated, progress reports are required every six

months. Section 122.132(e)(4) states that an application shall

include a compliance plan and §122.132(e)(9) requires applications to include a certification by the responsible official. Further, §122.146(1) specifies that the permit shall contain a term

and condition to specify that the permit holder is required to certify compliance with the terms and conditions of the permit for

at least each 12-month period following initial permit issuance.

Also, new §122.143(15), formerly §122.143(16), requires any report or annual compliance certification to contain a certification

by the responsible official.

Comment

BP commented that the commission should add the following

sentence to §122.132(e)(11): "Applications submitted prior to

July 2000 shall be updated to include minor NSR permit at permit

renewal." Similarly, TXOGA suggested that the following phrase

be added to §122.132(e)(11): "except that for applications submitted prior to July, 2000, updates to the applications for this information is not required until permit renewal." TXOGA explained

that an amendment to §122.132(e)(11) is necessary so that applications already submitted are not immediately out of compliance upon the effective date of this rule.

Response

Based on negotiations with the EPA regarding its comments regarding the timing of minor NSR incorporation, §122.132(e)(11)

is revised to state that applications for which the executive director has not authorized initiation of public notice by the effective

date of this rule must include preconstruction authorizations.

Comment

PC commented on §122.132(g). Title 40 CFR §70.5(c) requires

an application to include a list of insignificant activities and also

that the commission needs to specify that the information omitted

from the application under de minimis may not include information needed to determine the applicability of or to impose any

applicable requirement or to evaluate the fee amount.

Response

The commission changes the rule in response to this comment.

The EPA noted in the June 7, 1995 Federal Register, with regard

to the insignificant activities list, that "the design and approach

the state uses to keep activities out of the operating permit application is considered practical and equivalent to Part 70. This design attains the same results as a list of insignificant activities or

emissions thresholds for units. The EPA believes the procedures

set forth in the Texas permit regulation to identify insignificant activities achieves the goal and intent of the Part 70 regulations and

therefore is consistent and acceptable." (60 FR 30040).

ADOPTED RULES May 25, 2001 26 TexReg 3763
In response to the comment about de minimis activities, the commission clarifies in §122.132(g) that sources identified as de minimis under Chapter 116 do not have to be included in the application for determining Chapter 116 applicability, but such units

would need to be included if they are needed to determine the applicability of any other applicable requirement. A de minimis unit

under Chapter 116 is not subject to Chapter 116, but that does

not automatically make it a unit that may be listed as an insignificant activity under Part 70. Fees are addressed in §101.27,

Emission Fees, and §122.132(g) does not change how emission

fees are to be calculated.

Comment

PC commented on §122.134 and stated that an application for a

permit should not be considered complete unless the application

contains all of the information required by 40 CFR §70.5(c).

Response

The commission does not change the rule in response to this

comment. The commission believes that §122.134 is consistent

with 40 CFR §70.5(a)(2) which specifies that the program shall

provide criteria and procedures for determining when applications are complete and also specifies that applications shall be

deemed to be complete within 60 days unless the permitting authority determines that an application is not complete.

Comment

TCC requested that the section header for §122.136 be changed

from "Application Deficiencies" to "Application Deficiencies and

Supplemental Information." TCC explained that their suggested

header accurately describes the intent of the section. Similarly,

TXOGA commented that §122.136 should be retitled "Duty to

Supplement or Correct Application," since much of the section

outlines requirements for supplemental information not constituting an application deficiency.

Response

The commission agrees with TCC and TXOGA and changes the

title of §122.136 to "Application Deficiencies and Supplemental

Information."

Comment

TCC and TXOGA commented that additional text should be

added to §122.136(c) to specify that additional information

to address requirements that become subject to a site after

application submittal is not required to be submitted before the

commission begins the permit technical review, upon request,

the applicant will submit the necessary information within 60

days, and that additional time for information submittal is at

the discretion of the executive director. BP supported this and

added that the revision is needed to avoid continual revisions to

the permit application. TXOGA suggested additional language

be added to §122.136(c) to specify that information not yet

submitted under §122.131, Phased Permit Detail, need not be

submitted except in accordance with the schedule associated

with the phase-in of that information.

Response

The commission agrees with this comment and amends

§122.136(c) to specify that additional information is not required

to be submitted before the executive director’s technical permit

review period. This is consistent with 40 CFR §70.5(b) which

specifies that an applicant shall provide additional information as

necessary to address any requirements that become applicable

to the source after the date it filed a complete application but

prior to the release of a draft permit. The amendment will allow

the applicant to submit the needed application information in a

timely manner without requiring multiple updates of application

information until the commencement of the technical review,

and will assist the executive director and interested parties since

they will not be reviewing application information that is out of

date. This amendment will also address TXOGA’s concern in

that each portion of a phased permit has an associated technical

permit review. Therefore, additional information to address

requirements that become applicable will not be required to be

submitted before the technical permit review of each phased

permit.

Comment

TIP, BP, ExxonMobil, TCC, and TXOGA indicated that

§122.140(3) contained a typographical error. The word "respectfully" should be replaced by the word "respectively."

Response

The commission agrees with this comment and amends

§122.140(3) by replacing the word "respectfully" with "respectively."

Comment

TCC suggested that the phrase "application for an authorization to operate" be removed from §122.142(b)(3) because it is

already stated in §122.132(e)(11). BP made the same request

and explained that application requirements should not be addressed in a section titled "Permit Content." TXOGA, ExxonMobil and TIP commented in a similar fashion. TIP requested

that §122.142(b)(3) be revised to clarify that the preconstruction

authorizations will only be incorporated into Title V permits in

accordance with §122.231(c) for those sites that submitted applications prior to the effective date of this rule change. Similarly, TXOGA suggested that the following sentence be added

to §122.142(b)(3): "Effective at the renewal of the initial permit,

each permit shall contain any preconstruction authorization that

is applicable to the emission units at the site." TXOGA reasoned

that their suggested sentence would preclude permits or applications from being out of compliance upon promulgation of this

rule.

Response

The commission agrees with the comments and deletes the

phrase "or permit application for an authorization to operate"

from §122.142(b)(3). In addition, the commission clarifies that

preconstruction authorizations are incorporated into operating

permits as specified in §122.231(c).

Comment

TIP expressed concern about the level of detail currently required in operating permits and that detailed citation requirements greatly increase the paperwork and processing burden associated with initial permit issuance and permit revisions for both

the regulated community and the commission staff with no corresponding environmental benefit. Further, §122.142(b)(2)(B)

goes beyond the intent of Part 70 and the Title V program. By removing the specific, detailed regulatory citations from operating

permits, the commission can produce permits that serve as more

useful tools for the regulated community, the public, the EPA and

the commission, without compromising any person’s ability to

identify or to enforce the applicable requirements at a site. TIP

and TCC requested that the commission address the issue of

26 TexReg 3764 May 25, 2001 Texas Register
detailed citation requirements in the preamble and assure the

regulated community that another rule opening will take place to

propose amendments to §122.142(b)(2)(B) to reduce the level of

detail required in operating permits. ExxonMobil also requested

that the commission address the issue in the preamble and expressed concern that the rule language in §122.142(b)(2)(B) as

currently written could result in more stringent interpretations

than is the intent of Part 70. TIP, ExxonMobil, and TCC recommended the deletion of the words "detailed" and "specific"

from §122.142(b)(2)(B) and (B)(i). BP supported TCC’s suggestion concerning detailed citation requirements and added that

permits should be streamlined by removing unnecessary detail.

TXOGA supported the above amendment to §122.142(b)(2)(B)

and stated that their intent was to submit comments to make

the rule as flexible and workable as possible, while maintaining

the Part 70 Operating Permits requirements and that the efforts

and resources expended by both the commission and the regulated community should be reasonable and meaningful. TXOGA

expressed their emphasis on the reduction of paperwork and

processing burden associated with the program. Even requirements for minor permit revisions will be unduly burdensome and

expensive, with no corresponding environmental benefit. This

can be remedied by reducing the reliance on specific, detailed

regulatory citations for each and every requirement and by implementing a more descriptive approach which will require less

paperwork and less revision process. All parties, including the

commission and EPA inspectors, site operators and the public

will find such a tool much more useful in maintaining and understanding current, accurate regulatory requirements for the site.

The suggested changes to §122.142(b)(2)(B) are consistent with

Part 70 language and will not diminish the ability to identify or enforce all specific requirements for emission units at a site.

Response

The commission does not change the rule in response to this

comment but is currently involved in meetings with all stakeholders, including the EPA, to address level of detail issues. Chapter

122 currently provides the flexibility for the commission to structure the level of detail in operating permits in a manner that provides for compliance with Part 70 and also serves as a useful

compliance tool for the commission, the regulated community

and the public. The commission will continue its work with all

stakeholders to arrive at a level of detail that provides enforceability but eliminates unnecessary permit detail and associated

permit revisions. Whether the solution is through another rule

opening to propose amendments to Chapter 122 or through a

procedural process change has yet to be determined.

Comment

PC commented that §122.142(b)(2)(B)(i) should require a permit

to include emission limitations and standards, including those

operational requirements and limitations that assure compliance

with all applicable requirements at the time of permit issuance.

PC referenced 40 CFR §70.6(a)(1).

Response

The commission does not change the rule in response to this

comment. Section 122.142(b)(2)(B)(i), although not a word-forword reiteration of 40 CFR §70.6(a)(1), is consistent with its provisions. Section 122.142(b)(2)(B)(i) requires each permit to contain the specific regulatory citations for each applicable requirement identifying the emission limitations and standards. In this

manner, each permit includes emission limitations and standards

and operational requirements.

Comment

PC commented that §122.142(b)(2)(B)(ii) should require that

each permit include testing, monitoring, reporting and recordkeeping requirements sufficient to assure compliance with the

terms and conditions of the permit, for consistency with 40

CFR §70.6(c)(1). This requirement is independent of CAM or

periodic monitoring requirements. PC also commented that

reports of monitoring data should include monitoring required

by an applicable requirement as well as monitoring required by

the operating permit itself. Therefore, §122.145(1)(A) should

be amended to specify that reports of monitoring data required

to be submitted by an applicable requirement or by a provision

of the permit, shall be submitted to the executive director. In

addition, monitoring reports must be required to clearly identify

deviations. This is consistent with 40 CFR §70.6(a)(3)(iii)(A).

Response

The commission changes the rule in response to these comments. The commission believes that §122.142(b)(2)(B)(ii), as

written, meets the requirements of 40 CFR §70.6(c)(1) which

does not require an independent monitoring program but rather

refers back to the requirements of 40 CFR §70.6(a)(3) for periodic monitoring and CAM. Some monitoring is required by the

underlying applicable requirements. If the applicable requirement does not contain monitoring, then periodic monitoring is

required, and CAM may apply. However, amending these sections clarifies that reports must address monitoring covered by

an applicable requirement, and the definition of applicable requirement includes CAM or periodic monitoring as required by

the permit.

Comment

TIP requested that §122.142(b)(3) be amended to allow preconstruction authorizations to be incorporated into operating permits

by reference.

Response

The commission does not change the rule in response to this

comment. Section 122.142(b)(3) was added in response to an

inconsistency identified by the EPA to ensure that NSR authorizations will be included in the permit content requirements of

Chapter 122. As a part of the implementation process for the

inclusion of preconstruction authorizations in operating permits,

one option is to incorporate by reference. The commission does

not believe it is necessary to specify in the rule how preconstruction authorizations will be included in operating permits.

Comment

PC commented that §122.142(c) is inconsistent with 40

CFR§70.6(a)(3)(i)(B) in that the executive director has discretion to implement periodic monitoring. The citation should be

deleted and replaced with text that is consistent with 40 CFR

§70.6(a)(3)(i)(B).

Response

The commission does not change the rule in response to this

comment. Title 40 CFR §70.6(a)(3)(i)(B) requires that where the

applicable requirement does not require periodic testing or instrumental or non-instrumental monitoring (which may consist of

recordkeeping designed to serve as monitoring), the permit must

contain periodic monitoring sufficient to yield reliable data from

the relevant time period that are representative of an emission

unit’s compliance with the permit. In the rulemaking completed

in 2000, the commission amended §122.142(c) so that it tracks

ADOPTED RULES May 25, 2001 26 TexReg 3765
the language in 40 CFR §70.6(a)(3)(i)(B). However, §122.142(c)

does specify that permits contain periodic monitoring as required

by the executive director. The executive director makes a determination of what periodic monitoring requirements are needed at

initial permit issuance. The executive director has reviewed all

applicable requirements to determine which requirements contained no monitoring. The executive director, working with the

EPA, developed acceptable procedures and appropriate monitoring requirements to satisfy the Part 70 periodic monitoring

provisions. These requirements are included in initially issued

permits. The EPA is agreeable to phasing in the remainder of the

needed periodic monitoring requirements. The executive director called in full applications based on Standard Industrial Classification (SIC) codes. CAM and periodic monitoring GOPs are

being developed and phased in according to this call-in schedule.

Therefore, the commission can ensure that adequate and appropriate CAM and periodic monitoring are available when needed

for incorporation into permits.

Comment

PC commented that §122.142(e)(1) is not consistent with 40

CFR §70.6(c)(3). Each emission unit not in compliance with an

applicable requirement at permit issuance must include a compliance schedule and it is not sufficient for the permit to include a

reference to a compliance schedule. The compliance schedule

should be a clearly enforceable condition in the permit.

Response

The commission does not change the rule in response to this

comment. Including compliance plans by reference does not affect the enforceability of such compliance plan. All terms and

conditions in the permit are enforceable by the commission, including those incorporated by reference.

Comment

PC commented that the phrase "unless otherwise specified in

the permit" be deleted from §122.143 and §122.144; §122.145,

and §122.146. Part 70 requires the items listed in these sections

to be included in permits.

Response

The commission does not change the rule in response to this

comment. The phrase gives the executive director the authority

to include site specific conditions when needed. For example,

more frequent deviation reporting may be included as a part of

a compliance plan.

Comment

PC recommended amendments to §122.143(4) to be consistent

with 40 CFR §70.6(a)(6)(i), to specify that any noncompliance

with the terms and conditions of the permit or the provisional

terms and conditions is grounds for enforcement action, for permit termination, revocation and reissuance, or modification, or

for denial of a permit renewal application.

Response

The commission agrees with this comment and revises the rule

to make it consistent with 40 CFR §70.6(a)(6)(i).

Comment

PC commented that §122.143(8) be amended to be consistent

with 40 CFR §70.6(a)(6)(v) by adding the language, " Upon request, the permittee shall also furnish to the permitting authority

copies of records required to be kept by the permit or, for information claimed to be confidential, the permittee may furnish such

records directly to the Administrator along with a claim of confidentiality." Information required to be kept pursuant to a permit is

public information and should be accessible to the public, upon

request, through the commission.

Response

The commission agrees to amend §122.143(8) to be consistent with 40 CFR §70.6(a)(6)(v) regarding submitting records

required to be kept by the permit. The commission does not

agree that information claimed to be confidential should be sent

directly to the EPA administrator because it could adversely affect the commission’s ability to assure compliance with Chapter

122. The commission agrees that public information should be

accessible to the public as prescribed under Texas Government

Code, Title 5, Chapter 552, regarding public information and exceptions from required disclosure and THSC, §382.041 regarding confidential information. In addition, on April 14, 2000, the

commission and the EPA entered into a memorandum of agreement regarding the transmission of confidential information to the

EPA and in which the EPA agrees to adhere to the provisions of

§382.041 and federal law regarding claims of confidentiality.

Comment

PC commented that the word "relevant" and the phrase "which

are deemed necessary to characterize emission rates" be

deleted from §122.144(1)(F) to be consistent with 40 CFR

§70.6(a)(3)(iii).

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. The commission may consider this

change for future rulemaking. Chapter 122 requires the records

to reflect the operating conditions that existed at the time of sampling or measurement.

Comment

PC commented on §122.145(2)(B). The rules require submission of a deviation report once every six months. Part 70 requires

prompt deviation reporting. For many deviations, reporting once

every six months is prompt.

Response

The commission agrees with this comment and, therefore,

makes no change to the rule. Generally, the commission agrees

that for many deviations six-month reporting is prompt; however,

many instances may warrant more frequent deviation reports.

Comment

PC commented on §122.145(2)(B) in that a deviation report

should be required even if no deviations have occurred, to state

that there have been no deviations. Otherwise, it is impossible

for the commission or the public to know whether a facility has

had no deviations or simply has failed to submit the required

deviation report until the annual compliance report is submitted.

Response

The commission does not change the rule in response to this

comment. The commission believes that reporting should be

kept to the minimum needed to demonstrate compliance with

commission rules. In this case, the commission will interpret the

absence of a report to indicate no deviations occurred during the

26 TexReg 3766 May 25, 2001 Texas Register
reporting period. All permit holders are required to submit an

annual compliance certification report in which they certify that,

with the exception of the information attached in the deviation

table, all emission units were in continual compliance. If there

were deviations, they would be noted in the annual compliance

certification.

Comment

Sierra noted an additional loophole in the language in the compliance certifications that allow a facility to avoid having to admit

noncompliance. Citizens have big concerns about upsets, which

would be one source of excess emissions where the compliance

certifications would allow facilities and the responsible official to

basically avoid indicating that they are in noncompliance or exceeding some limitation.

Response

The commission does not change the rule in response to this

comment. All deviations must be reported, including those resulting from an upset. In addition, permit holders are required to

state if compliance was continuous or intermittent.

Comment

The commission proposed the deletion of §122.145(2)(D).

ExxonMobil, TCC and TOGA recommended that the commission keep the citation, with amendments, and recommended

the deletion of §122.145(3) because it requires a permit holder

to submit redundant upset and maintenance reports already

specified by Chapter 101. TIP supported this and further

clarified that this will better achieve the commission’s goal of

eliminating redundant provisions from Chapter 122. The current

§122.145(2)(D) prevents duplication of reports by allowing

permit holders to reference upset or maintenance reports in a

deviation report. Section 122.145(3), however, is redundant as

it merely restates a permit holder’s obligation to report upset

or maintenance activities under Chapter 101. BP pointed out

that §122.145(2)(D) explains the relationship between deviation

reporting and the reporting required in Chapter 101 and that a

deviation may or may not be an upset and vice versa. However,

if a deviation were an upset, then they would request that any reporting requirements of Chapter 101 be sufficient to satisfy any

deviation reporting requirements under Chapter 122. Therefore,

the commission should either address reporting equivalency in

the preamble or add a new §122.145(D) specifying if a deviation

is reported and that deviation is an upset per Chapter 101,

then the deviation report need only reference the unauthorized

emissions, upset or maintenance and start-up and shutdown

report containing the details related to the deviation.

Response

The commission changes the rule in response to these comments. After reviewing the comments, the commission believes

that §122.145(2)(D) should be retained but with amendments.

Because all upsets, regardless of the size, are deviations under

Part 70, they must be included in the six-month deviation report.

The commission amends §122.145(2)(D) to state that reports

submitted under the upset and maintenance rules of Chapter

101 do not substitute for reporting deviations under §122.145(2).

The commission will continue to allow owners or operators to

reference in six-month deviation reports any reports submitted

under Chapter 101 during the reporting period. Guidance on

reporting is available through the commission’s regional offices

and internet site. The commission agrees that §122.145(3) simply restates existing requirements and deletes that subsection in

the adopted rule.

Comment

PC commented that §122.145(3) states that reports of deviations

resulting from upset, maintenance, startup, or shutdown are to

be submitted in accordance with Chapter 101, which does not

require a certification by the responsible official. Chapter 101

also does not require reporting of these emissions which are

below the reportable quantity and should be clarified to specify

how these types of emissions below the reportable quantity be

reported. There should also be a clear requirement that these

type of emissions comply with all Part 70 deviation reporting requirements.

Response

The commission does not change the rule in response to this

comment. As previously discussed, the commission is deleting

§122.145(3). However, any upset regardless of the amount of

emissions resulting from it must be included in a six-month deviation report and is subject to the same certification requirements

as any deviation report. An upset reported under §101.6 need

only be referenced in the deviation report. Those upsets resulting in emissions that need not be reported under §101.6 must

appear in the six-month deviation report with all information as

required by Part 70.

Comment

BP commented on §122.146. They suggested that the commission use available information/format of the CAM/PM programs,

for example, to simplify the requirement for annual compliance

certifications to identify whether the methods used to certify compliance for each emission unit are continuous or intermittent.

Response

The commission does not change the rule in response to this

comment. Section 122.146(5)(A) specifies that the annual compliance certification must include or reference the term or condition for which compliance is being certified, the method used for

determining compliance, and whether the method provides continuous or intermittent data. This information is contained in the

periodic monitoring or CAM GOP and could be referenced for

the annual compliance certification. However, the permit holder

is still required to state whether the emission units were in continuous compliance.

Comment

PC commented that the EPA is not receiving compliance certifications pursuant to §122.146(2), as is required by 40 CFR

§70.6(c)(5)(iv). These documents were supposed to have been

available on-line, but are not, and it is, therefore, impossible for

the EPA to perform its required oversight. Operating permits

should include a requirements that the permit holder submit compliance certifications to the commission and the EPA, as is required by Part 70.

Response

The commission changes the rule in response to this comment.

The commission amends §122.146(2) to specify that the permit

holder must submit a copy of the certification to the EPA administrator. The commission is unaware of any situation for which the

EPA has not been able to perform its required oversight functions.

ADOPTED RULES May 25, 2001 26 TexReg 3767
Comment

PC commented that the commission’s compliance certification

rules limit the evidence that a facility must consider when determining compliance, facilities should not be exempt from reporting a violation because it was discovered through some method

other than monitoring required by the permit, and that the information required in §122.146(4) is insufficient to ensure that facilities are reporting all known compliance due to the narrow definition of deviation. PC commented that the compliance status of

a facility, as determined by §122.132(e)(4)(B), should not be determined solely by "any compliance method specified in the applicable requirements". PC explained that this excludes testing,

reporting, recordkeeping and monitoring requirements added to

the permit to satisfy the periodic monitoring and compliance assurance monitoring requirements in Part 70. PC stated that the

compliance status should be based upon all information available as required by EPA regulations. PC expressed that responsible officials with information that a facility is not in compliance

with an applicable requirement must state that the facility is out

of compliance and asserted that the commission’s regulations

should make this requirement clear.

Response

The commission changes the rule in response to this comment.

The commission adds clarification to §122.132(e)(4)(B) and

§122.146(4) to specify that the determination of compliance

status will be based on, at a minimum, but not be limited to,

compliance methods specified in the applicable requirements.

The commission also revises the definition of deviation.

Comment

PC commented that the compliance certification form is inconsistent with EPA and TNRCC rules.

Response

The commission does not change the rule in response to this

comment. The commission acknowledges that the form does

not require a list of applicable requirements or a description of

the method used for determining compliance for all instances.

Instead, the form requires this information for all deviations, and

it must certify that the company was in continuous compliance

with all terms and conditions in the permit, except for the identified deviations. The form will also be revised to address Part 70

revisions to require certification of intermittent compliance. The

commission believes that its form requires all appropriate information.

Comment

TCC commented that the annual compliance certification

information required in §122.146(5) for each emission unit could

be overly burdensome, especially for larger sites. TCC also

stated that the information on the method used for determining

the compliance status of each emission unit and whether such

method provides continuous or intermittent data will already be

contained in a CAM or periodic monitoring GOP and that the

commission should clarify that these references can be used to

meet §122.146(5).

Response

The commission does not change the rule in response to this

comment because §122.146(5) already allows reference to

terms and conditions of the permit, which includes CAM or

periodic monitoring GOPs. Section 122.146(5) is consistent with

40 CFR §70.6(c)(5)(iii) which specifies prescriptive compliance

certification information.

Comment

PC commented that 40 CFR §70.6(c)(5)(iii) requires the compliance certification to include the information listed under

§122.146(5). The commission should delete the statement in

§122.146(5) that the compliance certification could reference

the information, since it is not clear how any referenced information would be subject to the required certification by responsible

official.

Response

The commission does not change the rule in response to this

comment. Title 40 CFR §70.6(c)(5)(iii) specifies that the compliance certification should include the information required in

40 CFR §70.6(c)(5)(iii)(A) - (D). The identification of applicable

information may be done by cross-referencing the permit or previous reports, as appropriate. The Permit Compliance Certification Form allows a permit holder to reference previously submitted deviation reports, thus the referenced information is subject

to the required certification by the responsible official.

Comment

PC commented that §122.146(5)(A) is inconsistent with 40 CFR

§70.6(c)(5)(3)(B), which specifies that the compliance certification should include a statement indicating whether the compliance methods used for certification provide continuous or intermittent data.

Response

The commission agrees with the comment. The language recommended by PC was added to Chapter 122 in the proposal

package published in the January 26, 2001 issue of the Texas

Register. The commission adopts the language in this rulemaking.

Comment

PC commented on §122.148(b), Permit Shield. All information

required by 40 CFR §70.6 should be submitted in an application

before the agency makes a determination regarding qualification

for a permit shield.

Response

Section 122.148 was not proposed for amendment by the

commission; therefore, under Texas administrative law, the

section cannot be amended to incorporate the suggested

comments at this adoption. However, the commission believes

that §122.148(b) does require sufficient information because it

requires compliance with §122.132(e)(2), (3), and (8). These

subsections require the submission of information regarding

general applicability determinations and specific regulatory citations. Title 40 CFR §70.6(f), which specifies the requirements

for permit shields, does not specify that all information required

by 40 CFR §70.6 be submitted in an application before the

executive director makes a permit shield determination.

Comment

PC commented that §122.148(c) is extremely confusing and

should be amended to clearly track the requirements of 40 CFR

§70.6(f) regarding permit shields and 40 CFR §70.6(a)(3)(A)

regarding streamlining. Also, the source of the commission’s

authority to grant a permit shield for state-only requirements

26 TexReg 3768 May 25, 2001 Texas Register
is unclear. Such authority should be identified or state-only

provisions should be deleted from the rule.

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. However, the §122.148 permit shield

requirements are consistent with Part 70. Section 70.6(f)(1)(ii)

allows permitting authorities to determine that certain requirements are not applicable to a source. Section 122.148(c) refers

to this "negative applicability determination" as "potentially

applicable requirements." Section 122.148(c)(2) is consistent

with 40 CFR §70.6(f)(1) because it specifies that the permitting

authority may include a provision in operating permits stating

that compliance with the conditions of the permit shall be

deemed in compliance with any applicable requirements, or in

the case of Chapter 122, potentially applicable requirements.

Additionally, §122.148(c)(1)(B) enables the executive director

to perform stringency determinations to eliminate duplicative,

redundant and/or contradicting requirements. This is consistent

with 40 CFR §70.6(a)(3)(i)(A), which states that the permit may

specify a streamlined set of monitoring or testing provisions if

more than one requirement applies. Although Part 70 does not

require the inclusion of state-only requirements, the commission

chose to include such requirements in permits to provide a more

complete enforcement tool. The commission has the authority

to establish rule requirements to provide for compliance with all

rules and regulations.

Comment

PC commented on §122.148(c)(1)(A). Chapter 122 should clarify

that a negative applicability shield must include a written determination, or concise summary thereof, explaining the agency’s

determination that the listed requirements are not applicable to

the specified emission unit.

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. If a permit shield is requested and

approved, the executive director includes a permit shield section

in the operating permit that provides a basis for the permit shield

determination. The commission believes this meets the 40 CFR

§70.6(f)(1)(ii) permit shield requirements.

Comment

PC commented that §122.148(e) should be deleted since permit

shield modifications should follow revision or reopening procedures. PC also commented that a statement should be added

to §122.148(f) and §122.210(c) to specify that minor permit revisions are not eligible for a permit shield pursuant to 40 CFR

§70.7(e)(2)(vi). Also, a statement should be added that administrative revisions are not eligible for a permit shield, except for

those cases that are specified in 40 CFR §70.4(d)(4).

Response

The commission revises §122.219 in response to this comment.

However, §122.148 was not proposed for amendment by the

commission; therefore, under Texas administrative law, the section cannot be amended to incorporate the suggested comments

at this adoption. For consistency with 40 CFR §70.7(e)(2)(vi),

the commission specifies in §122.219 that a change to a permit

shield must follow significant permit revision procedures. This

is consistent with the previous requirements of §122.219(9). In

addition, when the executive director determines that a permit

shield must be amended to assure compliance with the applicable requirements, the permit will be reopened as required by

§122.231. Section 70.4(d)(4) only applies to permit shield revisions for permits issued under an interim program. The operating permits issued under the interim program did not contain

a permit shield for minor NSR because it was not an applicable

requirement.

Comment

PC commented that a provision should be added to §122.161,

Miscellaneous, stating that the commission shall not grant an

emergency order excusing violations of operating permits.

Response

Section 122.161 was not proposed for amendment by the commission; therefore, under Texas administrative law, the section

cannot be amended to incorporate the suggested comments at

this adoption. Under TWC, §5.501, the commission may issue

emergency orders to temporarily suspend or amend a permit

condition. This action would only be taken to protect public safety

or welfare, and the specific conditions causing the issuance of

the order cannot be predicted. The order does not excuse violations of operating permits but would only temporarily suspend

the conditions.

Comment

PC commented on §122.165(a). The list of documents that require a signed certification of accuracy and completeness should

specifically include deviation reports and upset, maintenance,

startup and shutdown reports.

Response

Section 122.165 was not proposed for amendment by the commission; therefore, under Texas administrative law, the section

cannot be amended to incorporate the suggested comments

at this adoption. The commission does not agree with this

comment because deviation reports are required by the permit

and, therefore, are required to be certified in accordance with

§122.165(a)(7). A deviation report should include all unauthorized upset, maintenance, start- up, and shutdown emissions or

make reference to them.

Comment

PC commented that §122.201(a), Initial Permit Issuance, should

be amended to be consistent with 40 CFR §70.7(a)(5) which requires the commission to provide a statement that sets forth the

legal and factual basis for the draft permit conditions (including

references to applicable statutes or regulatory provisions) to the

EPA and any other persons who request it. The commission’s

rules should be amended to require the preparation of such a

statement prior to the beginning of the public comment period.

Response

The commission does not change the rule in response to this

comment. The executive director does not prepare a specific

"statement of basis" for each permit, but rather has implemented

this Part 70 provision by developing a permit that states a regulatory citation for each applicable requirement. The commission is

unaware of any self-implementing statutory requirements that do

not have parallel regulatory provisions. These permit conditions

are based on the application and the technical review which includes a site inspection. The commission believes including this

ADOPTED RULES May 25, 2001 26 TexReg 3769
detail in the permits meets the requirements of Part 70 for including a statement of basis.

Comment

PC commented on §122.201(a)(1). A permit or a draft permit for

public review should not be issued before the executive director

has received a complete application containing all of the requirements in 40 CFR §70.5.

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. However, the commission would like

to clarify that a draft permit is not made available for public notice nor is a permit issued until the executive director has requested, received, and completed a technical review of an application that contains the requirements in §122.132(a) and (e),

except for phased permits which comply with the requirements

contained in §122.131. As previously stated, the commission

believes that §122.132 is consistent with the requirements contained in 40 CFR §70.5(c).

Comment

PC commented that §122.201(a)(2) is inconsistent with 40 CFR

§70.7(a)(1)(iv). It should be amended to specify that the conditions of the permit provide for compliance with all applicable

requirements and the requirements of Chapter 122. PC commented that §122.217(f)(3) should be amended to specify that

the conditions of the permit provide for compliance with all applicable requirements and the requirements of Chapter 122, for

consistency with 40 CFR §70.7(a)(1)(iv).

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. The commission may consider this

comment for future rulemaking. However, §122.201(a)(2) requires any permit issued under Chapter 122 to provide for compliance with all conditions of Chapter 122. Chapter 122 requires

that all applicable requirements be codified in FOPs. Therefore,

compliance with all conditions of Chapter 122 includes compliance with all applicable requirements.

Comment

PC commented on §122.201(c). Title 40 CFR §70.7(a)(1)(v) requires that the EPA has received a copy of the permit application

and any notices before the permit may be issued and it is not

sufficient for the commission’s rules to provide that the permits

are accessible to the EPA. These copies must be submitted to

the EPA, even if they are only sent electronically.

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. The EPA commented on the requirement, appearing throughout the October 1997 rulemaking, that

information be submitted to the EPA upon written request. The

EPA requested that the rule instead require the information to

be made accessible by electronic means. To accommodate this

request, the commission currently provides the EPA electronic

access to application and permit information.

Comment

PC commented that the phrase, "unless the executive director

allows for a shorter period due to an emergency," be deleted

from §122.204(f) because 40 CFR §70.6(e) does not provide for

exceptions to the requirement that temporary sources notify the

state ten days in advance of a change in location.

Response

The commission did not propose amendments to this section;

therefore, under Texas administrative law, the section cannot be

amended at this adoption. The commission believes that the

emergency provision in §122.204(f) will be used infrequently and

is a reasonable procedure.

Comment

PC commented that §122.204(h) be added, consistent with 40

CFR §70.6(e), to require that permits for temporary sources include conditions that will assure compliance with all applicable

requirements at all authorized locations.

Response The commission did not propose amendments to this

section; therefore, under Texas administrative law, the section

cannot be amended at this adoption. A change in location does

not relieve the temporary source from the obligation to have a

permit that assures compliance with all applicable requirements.

The commission does not believe that such an addition would

be necessary since §122.204(b) requires that an owner or operator of any temporary source apply for a permit consistent with

Chapter 122.

Comment BP and TCC requested that the commission specifically define the changes at a site which alter or change the

applicable requirements contained in the permit as stated in

§122.210(a).

Response

After reviewing the comment, the commission is not adopting the

proposed revisions to §122.210(a). The commission has defined

criteria for changes which would be administrative, minor, and

significant revisions.

Comment

PC commented that §122.210(b) be amended to specify that permit applications and notices be provided to the EPA to be consistent with 40 CFR §70.7(a)(1)(v) and (d)(3)(ii). The commission

should provide a copy to the EPA rather than just make the documents accessible to the EPA.

Response

The commission does not change the rule in response to this

comment. In the adoption preamble to the October 1997 Chapter 122 rulemaking, the EPA commented on the requirement appearing throughout the rule that information be submitted to the

EPA. In response to this comment, the commission amended

the rule to specify that information will be made accessible to

the EPA.

Comment

PC commented that §122.211(4) should require that the written agreement containing a specific date for transfer of permit

responsibility, coverage, and liability between the current and

new permit holder be submitted to the commission to be consistent with 40 CFR §70.7(d)(iv). PC commented identically on

§122.503(a), Application Revisions for Changes at a Site.

Response

26 TexReg 3770 May 25, 2001 Texas Register
The commission does not change the rule in response to this

comment. Part 70 does require the submission of a written

agreement. However, the commission does not believe it is

necessary or appropriate to require an entire agreement to be

submitted since such documents may be large and contain

extraneous information. The commission can easily access this

information, since it will be kept with the permit, and the permit

holder must still provide information regarding the transfer as

part of the application. Section 122.211(4) and 122.503(a)(3)

require that this information be maintained with the permit at the

site which makes it available to the commission when needed.

Comment

PC commented that the meaning of §122.211(5) is unclear. BP

and TXOGA concurred with §122.211(5) because it allows the

incorporation of the requirements from preconstruction authorizations as an administrative permit revision.

Response

The commission does not change the rule in response to

this comment. The commission proposed and is adopting

§122.211(5), which is consistent with 40 CFR §70.7(d)(1)(v),

to provide flexibility in the future to incorporate specified

preconstruction review requirements into operating permits.

Section 122.211(5) specifically states that the incorporation

of preconstruction authorization requirements is an administrative revision provided that the program meets procedural

requirements substantially equivalent to those of Chapter 122,

Subchapters C and D, and compliance requirements substantially equivalent to those contained in §§122.143, 122.145, and

122.146. The commission may initiate a separate rulemaking to

establish an option for enhanced NSR procedures to allow an

administrative permit revision to be used to incorporate changes

requiring minor NSR authorizations.

Comment

TXOGA requested clarification that new federal or state regulations which have undergone public comment and participation

and for which there are also no changes at the site fall within the

description of §122.211(7) in that they are similar and, if EPA-approved, are therefore administrative revisions.

Response

The commission does not change the rule in response to this

comment. The type of change mentioned by TXOGA does not

meet the criteria in §122.211(7) because the change is not similar to the changes in §122.211(1) - (6).

Comment

TCC requested that the commission clarify that changes to an

operating permit resulting from the renumbering of citations in a

regulation is an administrative permit revision. BP commented

that the commission clarify in the preamble that administrative

changes in regulatory language (renumbering, rule citations, or

the like) are not, in and of themselves, applicable requirements

triggering a permit revision.

Response

The commission does not change the rule in response to this

comment. However, §122.211(7) affords the EPA the opportunity to approve similar changes. Any EPA- approved type of administrative revision will be posted to the Air Permits web page

and included in updated revision guidance.

Comment

PC commented that §122.212 and §122.213(a) and (d) appear to

authorize changes at a site that would require an administrative

permit revision to be operated before an administrative permit

revision application is submitted, which is inconsistent with 40

CFR §70.7(d)(3)(iii).

Response

The commission does not change the rule in response to this

comment. Part 70 does require an application for an administrative permit revision to be submitted prior to operating the change.

However, the commission believes that the use of provisional

terms and conditions coupled with the recordkeeping requirement and the fact that the sources must always be in compliance

with the applicable requirements and provisional terms and conditions justifies this insignificant variation from Part 70.

Comment

TCC suggested that the commission delete §122.213(a)(1)(A)

- (C) to be consistent with Part 70. Part 70 only specifies that

sources may implement the changes as requested in the administrative permit revision immediately after submittal, but makes

no reference regarding the applicable requirements contained

in §122.213(a)(1)(A) - (C). TIP and ExxonMobil supported this

but commented that the entire §122.213(a)(1) be eliminated to

make the administrative permit revision procedures consistent

with Part 70. Furthermore, read literally, §122.213(a)(1) would

not allow a permit holder to proceed with an administrative revision at the site if any emission unit at the site is not in compliance

with an applicable requirement, state only requirement or provisional term or condition. This was not the intent of the Title V

program and is inconsistent with Part 70. Typographical errors

were also identified in the existing §122.213(a)(2) and (3). TXOGA supported TIP comment and added that §122.213(a) was

not a Part 70 requirement and is not pertinent to the types of revisions that are administrative in nature.

Response

The commission agrees with these commenters and

deletes §122.213(a)(1). The requirements contained in

§122.213(a)(1)(A) - (C) are not required by Part 70.

Comment

PC stated that it was supportive of Chapter 122 amendments

that were adopted in the October 1997 rulemaking, including

the elimination of "off-permit" changes formerly contained in

§122.215, the requirement in §122.132(e)(4)(C)(iii) specifying

that compliance schedules be at least as stringent as that

contained in any judicial consent decree or administrative

order, and the elimination of the "interpretation shield" from

§122.145(e).

Response

The commission appreciates the comment.

Comment

TIP, ExxonMobil, and TCC requested clarification in the preamble that the deletion of "off- permit" changes does not limit a permit holder’s ability to make changes to sources that qualify for

the Off-Permit Application Sources and Activities (OPASA) list.

BP supported this and suggested clarification in the preamble

that "off-permit" changes are not the same as the OPASA list.

Response

ADOPTED RULES May 25, 2001 26 TexReg 3771
The commission does not change the rule in response to these

comments. The commission agrees that "off-permit" changes

and sources that qualify for the Off-Permit Application Sources

and Activities (OPASA) list are different. Also, the deletion of

"off-permit" in the October 1997 Chapter 122 rulemaking does

not limit a permit holder’s ability to make changes to sources

that qualify for the OPASA list.

Comment

BP and TCC requested clarification for the type of permit revisions that would be required for major NSR/PSD, minor NSR,

permits by rule, and newly promulgated requirements. Further,

at a minimum, revisions related to changes which are minor NSR

revisions within Chapter 106 and Chapter 116 should be minor

operating permit revisions. Changes that trigger Federal NSR

and PSD requirements should require significant operating permit revisions. TCC further commented that the incorporation of

newly promulgated requirements which: 1.) do not require a

change at the site should be administrative operating permit revisions; and 2.) do require a change at the site should be minor

revisions. BP commented that the incorporation of new rule requirements, like a new MACT requirement, should be handled

as an administrative permit revision. For example, MACT standards pursuant to §112(g) or (j) that have already undergone

public notice should be included in the permit as an administrative revision. BP commented that the revision process must be

clear, concise, and must not unduly hinder operators from conducting their business. Part 70 language is vague and is subject to interpretation by the commission. BP also commented

that minor permit revisions should continue to be the default revision type, since large, complex facilities will likely be required

to constantly revise operating permits if significant revisions are

the default revision type. TXOGA also commented that a greater

number of significant changes will render the program unworkable. BP suggests that incorporation of new rule requirements

be typically handled as administrative permit revisions unless

the change triggers PSD/major NSR permitting actions. ExxonMobil commented that the operating permit process should be

reasonable and meaningful. Significant revisions should reflect

changes associated with PSD and Major NSR; changes associated with minor NSR and standard permits should be minor

revisions; and changes qualifying for a permit by rule or a rule

renumbering should be administrative revisions.

Response

Based on negotiations with EPA regarding its comments pertaining to the incorporation of minor NSR, actions authorizing

new facilities through minor NSR permits and amendments will

be considered off-permit changes, as specified in §122.222,

when no other applicable requirements in the permit are

affected. If rules are revised to include the option for enhanced

NSR procedures, the following activities will be considered

administrative revisions: 1) new or modified facilities under

permits by rule or standard permits and 2) facilities authorized to

be modified through minor NSR permits or amendments. NSR

activities such as address changes are currently administrative

permit revisions. Minor NSR permits involving major PSD or

nonattainment netting will be considered minor permit revisions.

PSD, nonattainment NSR, FCAA §112(g) or (j), and significant

changes to monitoring will be considered significant revisions.

In the preamble to the proposed Part 70, EPA stated in Footnote 6 what it believed to be a Title I modification. EPA concluded that a Title I modification would include a modification

under §111, §112(g) and (j), PSD and nonattainment permitting.

(56 FR 21712, 21747). In the July 1, 1996 Federal Register promulgating the 40 CFR Part 71 rule (61 FR 34202), the EPA discussed the status of the definition of Title I modification. The EPA

stated that it "is not yet prepared to adopt a final definition for the

term, in implementing the Phase I Part 71 program {and} EPA

will treat the issue consistently with the approach the Agency

has advised states to take under the current Part 70 regulation.

Consequently, it will not consider Title I modifications to include

changes subject to state minor NSR programs." (61 FR 34213).

Changes to qualified facilities under §116.116(e) or changes to

facilities covered under a flexible permit under Chapter 116, Subchapter G that are not considered an amendment under Chapter 116 and that do not add or remove an operating permit applicable requirement are not envisioned to be a change subject

to any revision process under Chapter 122, when the operating permit contains §116.116(e) and/or §116.710(a) as an applicable requirement. Permit holders must ensure that operating permits contain all potential operating scenarios that may be

needed for the flexible permit or changes to qualified facilities to

avoid unnecessary operating permit revisions. In addition, the

operational flexibility provisions contained in §122.222 allow the

removal of a unit from the site without requiring a permit revision

when the applicable requirements for any other unit remaining in

operation at a site are not affected.

Newly promulgated regulations that add new applicable requirements will be incorporated in a permit under the reopening

process contained in §122.231 or the renewal process. The

commission does not believe that the incorporation of new rule

requirements, such as a MACT, meets the criteria under 40

CFR §70.7(d)(1)(v) because this clause is specifically limited to

preconstruction review permits.

Comment

TXOGA requested clarification as to the threshold at which

changes at a site are minor. The intent of Part 70 for changes

to be significant under FCAA, Title I appears to be the definition

of modification under Title I. Therefore, all revisions related to

changes which are minor NSR revisions within Chapter 106 or

Chapter 116 should be minor revisions and all changes at a

site which trigger federal NSR and PSD requirements should be

significant. At a minimum, changes are minor which fall under

the thresholds of 40 CFR §70.7(e)(3). TXOGA requested that

the commission establish an alternative threshold as allowed in

§70.7(3) at the level of major versus minor NSR.

Response

The commission does not change the rule in response to this

comment. The commission believes that adding a threshold at

which changes at a site are minor is inconsistent with Part 70

which requires that any case-by-case determination be a significant revision and thus would not qualify for a revision under 40

CFR §70.7(3). As discussed previously, the commission agrees

that changes under Chapters 106 and 116 that do not involve a

case-by-case determination can be minor permit revisions.

Comment

The EPA commented that the commission proposes to submit

§§122.215 - 122.218 as a revision to the SIP to satisfy 40 CFR

§70.7(e)(2)(i)(B), which provides that minor permit modification

procedures may be used for permit modifications involving the

use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that such minor

permit modification procedures are explicitly provided for in an

26 TexReg 3772 May 25, 2001 Texas Register
applicable SIP or in applicable requirements promulgated by the

EPA. The EPA pointed out that §§122.215 - 122.218 only address

the process for using minor permit modification procedures and

do not include the SIP requirements to implement requirements

involving the use of economic incentives, marketable permits,

emissions trading, and other similar approaches. Those regulations must be part of the SIP before minor permit revision procedures can be used to include these items in operating permits.

Approval of §§122.215 - 122.218 alone do not satisfy 40 CFR

§70.7(e)(2)(i)(B).

Response

The commission adopted Chapter 101, Subchapter H, Emissions Banking and Trading, and submitted it as a SIP revision.

It is the rules contained in Chapter 101, Subchapter H to which

§122.218 refers.

Comment

PC commented that §122.215(2) should be amended to specify

that a minor permit revision does not involve significant changes

to, or relaxation of, existing monitoring, reporting, or recordkeeping requirements in the permit, for consistency with 40 CFR

§70.7(e)(4). PC also commented that §122.219 be amended

to specify that every significant change in existing monitoring

permit terms or conditions and every relaxation of reporting or

recordkeeping permit terms or conditions shall be considered

significant, for consistency with 40 CFR §70.7(e)(4).

Response

The commission changes the rule in response to this comment.

Consistent with 40 CFR §70.7(e)(4), the commission adopts a

new §122.219(b) to specify that, at a minimum, every significant change in existing monitoring permit terms or conditions

and every relaxation of reporting or recordkeeping permit terms

or conditions shall be considered significant. The commission

also clarifies under what conditions it is not a significant revision

to remove existing monitoring, reporting, or recordkeeping for a

unit removed from the site. In new §122.222(b, the commission

clarifies that removing a unit from the site that does not otherwise

change another unit’s applicable requirements can be removed

through operational flexibility. Lastly, the commission wishes to

clarify that §122.215(2) is consistent with 40 CFR §70.7(e)(i)(2)

and remains unchanged.

Comment

PC commented that a new §122.216(6) should be added to require minor permit revision applications to include the emissions

resulting from the change and any new applicable requirements

that will apply if a change occurs, for consistency with 40 CFR

§70.7(e)(2)(ii)(A).

Response

The commission agrees with the comment and adds new

§122.216(6) to require minor permit revision applications to

include the emissions resulting from the change. This is consistent with 40 CFR §70.7(e)(2)(ii)(A). The incorporation of minor

NSR will include any emissions resulting from a change. In addition, Chapter 122 currently requires that minor permit revision

applications include any new applicable requirements that will

apply if a change occurs. Section 122.216(3) specifies that an

application for a minor permit revision include provisional terms

and conditions that codify the new applicable requirements. The

concept of provisional terms and conditions is consistent with

40 CFR §70.7(e)(2)(v).

Comment

PC commented that a new §122.216(7) should be added to

require minor permit revision applications to include completed

forms for the permitting authority to use to notify the EPA

administrator and affected states, for consistency with 40 CFR

§70.7(e)(2)(ii)(D).

Response

The commission does not change the rule in response to this

comment. The commission implements a practical and appropriate process to notify the EPA and affected states of minor permit

revision applications. This includes electronically accessible information, recommended by the EPA in its comments on the October 1997 Chapter 122 rulemaking. The commission proposed

amendments to §122.217(e) to specify that the executive director notify the EPA and affected states of requested minor permit

revision applications, consistent with 40 CFR §70.7(e)(2)(iii). In

addition, §122.330(c) and (d) requires the executive director to

notify affected states of minor permit revisions and provides the

opportunity for affected states to comment. The commission,

therefore, considers it unnecessary for permit holders to complete forms for the executive director to use to notify the EPA

and affected states of minor permit revisions.

Comment

TCC commented that §122.217(a)(1)(A) - (C) and (b)(1)(A) - (C)

imply that the permit holder is required to be in compliance with

every applicable requirement for every emission unit at the site in

order to implement the change for a minor permit revision. The

citations should be amended to specify that the permit holder

complies with applicable requirements, state only requirements

and provisional terms and conditions governing the change. TXOGA supported the suggested amendment. TIP and ExxonMobil also supported this and further added that their suggestion

would be consistent with 40 CFR §70.7(e)(2)(v). BP suggested

using the phrase, "concerning the change."

Response

The commission agrees with the comment and amends

§122.217(a)(1)(A) - (C) and (b)(1)(A) - (C) to specify that the

permit holder must comply with applicable requirements, state

only requirements, and provisional terms and conditions governing the change. This is consistent with 40 CFR §70.7(e)(2)(v),

which specifies that a site may operate a change after submitting a minor permit revision application and must comply with

both the applicable requirements governing the change and the

proposed permit terms and conditions.

Comment

TXOGA requested verification that §122.217(b) refers to newly

promulgated rule requirements which cause a change at the site.

Part 70 does not contemplate new rule requirements causing a

minor revision where no change was required at the site. New

requirements that are simply promulgated but do not require any

change at the site meet the criteria for administrative permit revisions.

Response

The commission changes the rule in response to this comment.

The commission deletes the language in §122.217(b) that relates to changes to a permit required as the result of the promulgation or adoption of an applicable requirement. This language should have been deleted in the Chapter 122 proposal

ADOPTED RULES May 25, 2001 26 TexReg 3773
because it is inconsistent with Part 70 and other amended sections of Chapter 122. Even if no change at the site is required,

the incorporation of newly promulgated or adopted applicable requirements could result in an administrative permit revision, a

significant permit revision, or a permit reopening depending on

the requirements of the new applicable requirement.

Comment

BP commented that §122.217(b)(2) should be revised to retain

the 45-day period for information submittal.

Response

The commission believes that incorporating this comment would

be inconsistent with Part 70. Title 40 CFR §70.7(e)(2)(v) allows

a source to make a change qualifying for a minor permit revision immediately after an application is filed. Because a site is

required to be in compliance by the compliance date of a requirement, any appropriate changes must be in place. Therefore, the

application, including provisional permit terms and conditions,

must be submitted prior to making the change contemplated by

the revision.

Comment

PC commented that §122.217(e) should be amended to state

that the executive director shall promptly notify the EPA and affected states of any refusal to accept all recommendations that

the affected state submitted during the public or affected state

review period, for consistency with 40 CFR §70.8(b)(2).

Response

The commission does not incorporate this comment in the rule

because the requirement is already addressed in §122.330(e).

Comment

PC commented that §122.217(f)(3) should be amended to specify that the conditions of the permit provide for compliance with

all applicable requirements and the requirements of Chapter 122

for consistency with 40 CFR §70.7(a)(1)(iv).

Response

The commission does not change the rule in response to this

comment. Section 122.217(f)(3) requires any permit issued under Chapter 122 to provide for compliance with all conditions of

Chapter 122. Chapter 122 requires all applicable requirements

to be codified in FOPs. Therefore, compliance with all conditions

of Chapter 122 includes compliance with all applicable requirements.

Comment

TCC was supportive of the commission’s proposed §122.218,

making permit revisions involving the use of economic incentives, marketable permits, and emissions trading minor permit

revisions. TXOGA was also supportive, but also requested clarification that only changes in the requirements of these programs

are revisions to the permit and that any individual trade or use of

an emission credit within an approved program is not a revision

to the permit. PC requested clarification of the types of changes

that can qualify for minor permit revision under §122.218, involving economic incentives, marketable permits, or other similar approaches.

Response

The commission does not change the rule in response to this

comment. Part 70 specifies that any revisions involving the use

of economic incentives, marketable permits, and emissions trading qualify as a minor permit revision. The commission does

not believe that Part 70 requires that each trade or use of an

emission credit under Chapter 101, Subchapter H result in a minor revision because Chapter 101 specifies how and when each

emission credit may be traded or used. Chapter 101, Subchapter H is included in the definition of applicable requirement. If a

permit revision was necessary every time a trade was made, the

flexibility provided by such programs would be reduced.

Comment

PC commented that §122.221(b)(3) should be amended to

specify that the conditions of the permit provide for compliance

with all applicable requirements for consistency with 40 CFR

§70.7(a)(1)(iv).

Response

Section 122.221(b)(2) requires any permit issued under Chapter

122 to provide for compliance with all conditions of Chapter 122.

Chapter 122 requires all applicable requirements be codified in

FOPs. Therefore, compliance with all conditions of Chapter 122

includes compliance with all applicable requirements.

Comment

BP supported the incorporation of operational flexibility.

Response

The commission appreciates the comment.

Comment

PC commented that §122.222 appears to allow changes that

contravene an express permit term without a permit revision

and that these changes will not be subject to review by the

public, affected states, the EPA, or even the executive director.

Also, these changes will not be incorporated into the permit

until renewal, which may be longer than five years, depending

on the pace of renewal application processing. Therefore,

the commission should define and limit the types of changes

allowed under §122.222. Section 122.222(3) states that the

change may not exceed emission limits in the permit, but it does

not address the type of emissions. PC questioned whether a

new pollutant could be emitted under this section that is not

addressed by the permit, whether a permit holder could make

changes that would require different control technologies under

§122.222, whether any changes in monitoring, recordkeeping,

reporting or compliance certification would be allowed under

this section, whether changes made under this section would be

subject to annual compliance certification or deviation reporting,

and whether Chapter 122 would specifically list any change that

could occur under §122.222 and the commission should provide

an opportunity for the public and the EPA to comment on the list.

Response

The Chapter 122 operational flexibility provisions are consistent

with the Part 70 definition of "§502(b)(10) changes" and the provisions of 40 CFR §70.4(b)(12)(i). The commission includes this

amendment in response to an EPA comment noting that Chapter 122 must be revised to include the Part 70 provisions for operational flexibility. The rule as adopted defines the criteria for

changes that meet the conditions for operational flexibility. Part

70 does not require the changes for operational flexibility to be

incorporated into permits at renewal, but only requires the notice

to be attached to the permit. An attempt to further define these

changes in the rule may unnecessarily limit those changes that

26 TexReg 3774 May 25, 2001 Texas Register
would otherwise qualify under the criteria set forth by Part 70,

which does not require the state to list or further define operational flexibility in their implementing rule. The commission will

develop guidance and seek input from interested parties concerning the implementation of operational flexibility provisions.

Comment

The EPA commented that §122.222(a)(4) may conflict with

§122.222(a)(1). Many preconstruction authorizations are

also Title I modifications. Therefore, §122.222(a)(4) could be

inconsistent with §122.222(a)(1) and with 40 CFR §70.4(b)(12)

which exclude Title I modifications. The commission should

clarify which types of preconstruction authorizations would not

be Title I modifications and §122.222(a)(4) should be revised

to clarify that it does not include preconstruction authorizations

which are also Title I modifications.

Response

The commission agrees with this comment and changes

§122.222(a)(4) to specify that such preconstruction authorization cannot be a Title I modification. The commission also

agrees that clarification is needed for the types of preconstruction authorizations that are Title I modifications. In the July 1,

1996 Federal Register promulgating the 40 CFR Part 71 rule

(61 FR 34202), the EPA discussed the status of the definition of

Title I modification. The EPA stated that it "is not yet prepared to

adopt a final definition for the term, in implementing the Phase

I, Part 71 program {and} EPA will treat the issue consistently

with the approach the Agency has advised states to take under

the current Part 70 regulation. Consequently, it will not consider

Title I modifications to include changes subject to state minor

NSR programs." (61 FR 34213). As discussed previously,

the commission believes that the only actions that are Title I

modifications are modifications under §111, §112(g) and (j),

PSD and nonattainment permitting.

Comment

The EPA commented that, although a time frame for written notification to the executive director is specified, §122.222 does

not set a time frame for written notice to the EPA. Title 40 CFR

§70.4(b)(12) specifies that written notification be submitted to the

state and the EPA.

Response

The commission agrees with this comment and changes

§122.222(c) to specify that written notification must also be

submitted to the EPA on the same schedule as to the executive

director.

Comment

The EPA commented that §122.222 does not include the provisions in 40 CFR §70.4(b)(12)(iii), a requirement that the state

program must include in order to receive full program approval.

Response

The commission agrees with this comment and adds

new §122.222(e) to specify the requirements in 40 CFR

§70.4(b)(12)(iii). The commission also adds new §122.222(d)

to incorporate the operational flexibility requirements in 40 CFR

§70.4(b)(12)(ii).

Comment

TIP requests amendments to §122.222(b) that will allow operational flexibility changes with less than seven days advance notice, provided that the commission determines that the shorter

advance notice is merited due to an emergency situation. This

is consistent with 40 CFR §70.4(b)(12).

Response

In response to this comment, the commission adopts changes to

§122.222(c) to specify that notice may be provided to the commission within two working days of the implementation of operational flexibility changes due to an emergency. Such notice

shall also include an explanation of the emergency. For clarification the commission amends §122.222(c) to specify that written

notice must be submitted to the commission and EPA at least

seven days in advance of the proposed change, except for an

emergency.

Comment

The EPA commented that §122.231 must be amended to comply

with 40 CFR §70.7(f)(2). The commission proposed to amend

§122.231 to require the commission to institute proceedings to

reopen permits to incorporate minor NSR no later than renewal

of the permit. The commission also clarified in the preamble that

the time frame will somewhat correspond with the renewal date

of a permit. Thus, the commission will not incorporate minor

NSR into some permits for up to five years. The EPA finds this

unacceptable and states that 40 CFR §70.7(f)(2) requires that all

reopenings for new applicable requirements be completed within

18 months after promulgation of applicable requirements. PC

agreed with the EPA. Operating permits should be reopened,

within 18 months to add minor NSR requirements, as specified

in 40 CFR §70.7(f)(1)(i). Likewise, the proposed amendment to

§122.231(d) should not be made.

Response

The commission does not change the rule in response to this

comment. The commission acknowledges that minor NSR will

have to be incorporated over a period of time and thus will institute proceedings to reopen permits in accordance with 40 CFR

§70.4(d)(3)(ii)(D). The majority of the permits issued thus far

have been authorizations to operate under GOPs. However, the

commission anticipates that the majority of permit holders operating under a GOP (almost 900) will apply for the executive director issued GOPs by October 26, 2001. These GOPs by rules

are required to be renewed by October 26, 2001. Because of the

extensive changes to the applicable requirements in every GOP,

the commission is not renewing the GOPs by rule. Instead, the

executive director will issue new GOPs which will include minor

NSR. The executive director will institute proceedings to reopen

previously approved authorizations to operate. Each owner or

operator authorized to operate under a GOP by rule will be required to apply for a new authorization to operate under the executive director issued GOP or submit an application for a site

operating permit (SOP).

The EPA raises two issues in its comments concerning the incorporation of minor NSR permits into operating permits. First, the

EPA states that 40 CFR §70.7(f)(2) requires all reopenings for

new applicable requirements to be completed within 18 months

after promulgation of applicable requirements. Since minor NSR

will be a new applicable requirement, §122.231 must be revised

to comply with §70.7(f)(2). {The 18-month requirement is actually in 40 CFR §70.7(f)(1)(i)}. Second, the EPA notes that the

June 20, 1996 Federal Register notice which revised Part 70 to

allow for a streamlined reopening process to incorporate minor

ADOPTED RULES May 25, 2001 26 TexReg 3775
NSR permit terms into operating permits did not "contemplate

that minor NSR could be excluded until renewal, which could be

up to five years after full program approval." Read together, the

EPA’s comment is that minor NSR is a new applicable requirement and, as such, must be incorporated into operating permits

under the 18-month deadline in §70.7(f)(1)(i) and not at renewal.

This position can be refuted by the actual provisions of Part 70

as it was revised to address the issue of incorporation of minor

NSR authorizations.

Minor NSR is not a new applicable requirement subject to 40

CFR §70.7(f)(1)(i). The FCAA, §502(b)(9) provides that permitting authorities "in the case of permits with a term of three or

more years for major sources, shall require revisions to the permit to incorporate applicable standards and regulations promulgated under this Act after the issuance of such permit. Such

revisions shall occur as expeditiously as practicable and consistent with the procedures established under paragraph (6) but

not later than 18 months after the promulgation of such standards and regulations." In order to give meaning to the provision

in FCAA, §502(b)(9), the assumption must be that Congress anticipated situations where new applicable standards and regulations would be promulgated (Blacks Law Dictionary defines "promulgate" as "to publish; to announce officially; to make public as

important or obligatory. The formal act of announcing a statute

or rule of court.") after the operating permit was already issued.

In the preamble to the proposed Part 70 at 56 FR 21745 (May

10, 1991), the EPA stated that it "believes that §502(b)(9) should

be read to require that the permitting authority reopen permits

for major sources with three or more years remaining in the permit’s life...to incorporate standards and regulations promulgated

under the Act which are promulgated after the issuance of such

a permit." In the preamble for the final Part 70 at 57 FR 32256

(July 21, 1992), the EPA stated that "any approvable program, at

a minimum, must require that the permitting authority will revise

all major source permits with a remaining life of three or more

years to incorporate applicable requirements under the Act that

are promulgated after the issuance of the permits. Such revisions must be made using the revision procedures that meet the

requirements for permit revision and must be made within 18

months after the promulgation of the new requirement. No revision is required if the effective date of the requirement is after the

expiration of the permit term." The EPA implemented §502(b)(9)

in 40 CFR §70.7(f)(1)(i) which provides "additional applicable requirements under the Act become applicable to a major Part 70

source with a remaining permit term of three or more years. Such

a reopening shall be completed no later than 18 months after

promulgation of the applicable requirement. No such reopening

is required if the effective date of the requirement is later than

the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended

pursuant to 40 CFR §70.4(b)(10)(i) or (ii) of this part."

While the EPA has faithfully implemented the provisions of

§502(b)(9) through 40 CFR §70.7(f)(1)(i), it is erroneously

applying those provisions to the issue of incorporation of minor

NSR. The clear intent of both §502(b)(9) and §70.7(f)(1)(i) is to

establish a procedure to incorporate applicable requirements

that are promulgated after the issuance of an operating permit,

such as a new NSPS, a MACT, or a new RACT requirement.

Section 70.7(f)(1)(i) provides that "such a reopening shall be

completed not later than 18 months after promulgation of the

applicable requirement." Although it is true that Chapter 122 is

being revised to add minor NSR authorizations to the definition

of "applicable requirement," this does not mean that minor NSR

is a new requirement, promulgated after issuance of operating

permits, that facilities in Texas must now meet. The EPA

has consistently maintained that minor NSR is an applicable

requirement. In addition, facilities in Texas have been subject to

the minor NSR program since 1971. Minor NSR is not a newly

promulgated applicable requirement.

Part 70 does not require reopenings for incorporation of minor

NSR authorizations prior to renewal. In the June 20, 1996 Federal Register notice (61 FR 31443), the EPA added a new 40

CFR §70.4(d)(3)(ii)(D) to provide a method for the incorporation

of minor NSR terms. The EPA states at 61 FR 31444 that it is

"adding rule language clarifying that, upon conversion to full approval, permits issued during the interim period would have to be

revised or reopened to include any excluded minor NSR terms.

Regarding reopening, today’s rule also provides for a streamlined reopening process for excluded minor NSR terms that does

not require the full permit issuance process." The EPA also noted

at 61 FR 31446 that "in proposing to allow this type of interim approval, {the EPA} did not contemplate that minor NSR applicable

requirements could be excluded until renewal which could be up

to five years after full program approval."

However, in the actual rule text, the EPA did not include a specific deadline for the incorporation of minor NSR terms into operating permits. Nowhere in the June 20, 1996 notice does the

EPA refer to the 18-month provision in 40 CFR §70.7(f)(1)(i) as

being an element of the streamlined process for the incorporation of minor NSR. Nor does the rule specifically state the minor

NSR cannot be incorporated into operating permits at renewal.

Section 70.4(d)(3)(ii)(D) provides that a "program receiving interim approval for the reason specified in §70.4(d)(3)(ii)(B) of this

section must, upon or before granting of full approval, institute

proceedings to reopen Part 70 permits as required by 40 CFR

§70.7(f)(1)(iv). Such reopening need not follow full permit issuance procedures nor the notice requirement of §70.7(f)(3), but

may instead follow the permit revision procedure in effect under

the State’s approved Part 70 program for incorporation of minor

NSR permits."

The EPA could have specified a deadline for reopenings in 40

CFR §70.4(d)(3)(ii)(D) but instead, it required states to "institute

proceedings" to reopen operating permits in order to incorporate

minor NSR authorizations. Again, the reopening will not incorporate newly promulgated applicable requirements; therefore, the

18-month deadline specified in 40 CFR §70.7(f)(1)(i) does not

apply. The commission intends to institute proceedings to reopen permits and authorizations to operate shortly after adoption of the revisions to Chapter 122.

Comment

PC commented that §122.231(a)(1) is inconsistent with 40 CFR

§70.7(f)(1)(i) and should be amended to specify that a permit

may be reopened if an additional applicable requirement under

the FCAA becomes applicable to a source, for any reason. PC

commented that §122.231(a)(1)(A) should be deleted because

it is inconsistent with §70.7(f)(1)(i).

Response

The commission does not change the rule in response to this

comment. The commission believes §122.231(a)(1) is consistent with 40 CFR §70.7(f)(1)(i) which states that a reopening shall

be completed not later than 18 months after "promulgation" of the

applicable requirement. Part 70 ties a permit reopening to a rule

promulgation and not to "any reason" that an applicable requirement becomes applicable. For example, when the permit holder

26 TexReg 3776 May 25, 2001 Texas Register
makes a change at a site that results in a change to applicable

requirements in the permit, then the permit revision process under §§122.213 - 122.221 should be used.

Comment

TIP commented that minor NSR authorizations should be

incorporated into operating permits for which applications

have already been submitted at renewal and not before that

time and requested confirmation in the preamble that it will

not reopen operating permits until renewal. BP suggested

amending §122.231(c) to specify that the executive director will

reopen permits at renewal. TCC requested that the commission

specify in the preamble or document in the final rule that, for

permit applications submitted by July 22, 2000, minor NSR

authorizations will not be incorporated until permit renewal.

TIP also commented that the process of incorporating minor

NSR authorizations may delay permit revisions, if done at that

time, and thus impact the permit holder’s ability to operate the

change at the site. By incorporating minor NSR at renewal, the

commission can assure that the process of integrating minor

NSR and existing operating permits will not affect a site’s ability

to conduct time- sensitive activities. BP endorsed comments

submitted by TCC and TXOGA and generally supported the

integration of NSR and Part 70. However, this transition should

be streamlined, concise, and understandable, and should not be

unduly burdensome on either the commission or the operator in

terms of additional resources or time to incorporate. Integration

of existing NSR permits into the operating permit program

should be handled in a manner that will minimize additional

expense and paperwork for our plants. TXOGA requested that

the commission clarify the intent to incorporate NSR permit

requirements and operating permit requirements into a single

document at, and not before, renewal of the operating permit.

Any operating permit revision or reopening prior to renewal may

have critical time constraints associated with it and should not

be delayed due to incorporation of the administrative revisions

related to the inclusion of NSR provisions. Permit holders need

to have an assured time frame for resource and manpower

scheduling purposes. TXOGA supported the concept of incorporating Chapter 106 and Chapter 116 at permit renewal and

requested assurance to schedule the workload for the inclusion

of information and also to avoid delay of critical permitting

actions with strict time constraints. ExxonMobil supported

comments submitted by TIP, TXOGA, and TCC and supported

the commission’s efforts to incorporate Part 70 language into

Chapter 122. Specifically, ExxonMobil commented that minor

NSR authorizations should be incorporated into operating

permits and not before that time. The process of incorporating

those authorizations may delay the permit revision and thus

impact the permit holder’s ability to operate the change at the

site. The commission can ensure that the process of integrating

minor NSR and existing operating permits will not affect a site’s

ability to conduct time-sensitive activities if NSR is incorporated

at renewal. ExxonMobil requested that the commission confirm

in the preamble that it will not reopen operating permits for the

purpose of incorporating minor NSR authorizations until renewal

and that the commission consider the resources available when

developing the implementation process. The process should be

designed with some flexibility to allow minor NSR authorizations

to be incorporated into the operating permits by reference.

ExxonMobil also supports stringency determinations which

streamline and simplify redundant and duplicative standards.

TCC commented that §122.231(c) be amended to clarify that

the executive director institute proceedings to reopen permits

for those holding operating permits as of the effective date of the

rule, instead of permits for which applications were submitted

to the executive director prior to the effective date of §122.231.

BP supported this and further suggested to add that operators

who have submitted applications to the executive director prior

to the effective date of §122.231, but have not yet received

their operating permit, will incorporate Chapter 106, Subchapter

A or Chapter 116 preconstruction permits at renewal. TCC

also requested that the commission clarify that preconstruction

authorizations for applications submitted by July 22, 2000,

not be incorporated into the permit until renewal. Also, TCC

requested that §122.231 be amended to specify that operating

permits for which applications were submitted to the executive

director prior to the effective date of the amended Chapter 122

incorporate minor NSR at renewal.

Response

After reviewing these comments, and based on negotiations with

the EPA regarding its comments pertaining to the incorporation

of minor NSR, the commission changes §122.231(c). The rule

language in §122.231(c) states that for permits already issued,

the incorporation of minor NSR will occur no later than permit renewal. Applications for which the executive director has authorized initiation of public notice by the effective date of the rule will

incorporate the requirements for minor NSR no later than permit

renewal. Applications for which the executive director has not

authorized initiation of public notice by the effective date of the

rule will include NSR at initial issuance.

Comment

PC commented that §122.231(a)(1)(B) should be amended to be

consistent with 40 CFR §70.7(f)(1)(i) to indicate that the effective

date of the requirement is later than the permit expiration date,

unless the original permit or any of its terms and conditions have

been extended pursuant to the provisions for timely and complete applications for renewal.

Response

The commission agrees with this comment and amends

§122.231(a)(1)(B) to be consistent with 40 CFR §70.7(f)(1)(i).

Comment

PC commented that §122.231(a)(1)(D) should be added to state

that additional requirements (including excess emission requirements) become applicable to an affected source under the Acid

Rain program and that upon approval by the EPA administrator,

excess emissions offset plans shall be deemed to be incorporated into the permit, to be consistent with §70.7(f)(1)(ii).

Response

The commission agrees with this comment and adds new

§122.231(a)(6) for consistency with §70.7(f)(1)(ii).

Comment

PC commented that §122.231(a)(4) should be amended for consistency with 40 CFR §70.7(f) and (g) to indicate that the executive director or the EPA determines that the permit must be

revised or terminated to assure compliance with applicable requirements. Because the EPA may reopen for the reasons listed

in §122.231(a)(4), this list must include a determination by the

EPA that the permit must be revised or terminated to assure compliance.

Response

ADOPTED RULES May 25, 2001 26 TexReg 3777
The commission agrees with this comment and adds the suggested language to §122.231(a)(4).

Comment

PC commented that the exception in §122.231(c) to incorporate

minor NSR into operating permits is unacceptable. If the state

had initially included minor NSR, as it was required, full public

participation would have been provided. The commission cannot now illegally avoid this public participation. Also, Part 70 provides no provision to justify the commission’s attempt to exempt

minor NSR incorporation from normal notice and comment procedures. PC also commented that they oppose any provision

that would allow initial incorporation of minor NSR without public

participation, which is required by the 42 USC §7661a(b)(6).

Response

The commission does not change the rule in response to this

comment. Part 70 was revised on June 20, 1996 (61 FR 31443)

to authorize the granting of interim approval to states with programs that did not include minor NSR as an applicable requirement. For every incorporation of NSR that occurs at initial issuance or at renewal, full public participation requirements, including public notice, will be satisfied. However, the adopted

rule implements the provisions of 40 CFR §70.4 which allow for a

truncated reopening process for the incorporation of minor NSR.

Comment

TIP commented that §122.231(d) should be amended to be consistent with 40 CFR §70.7(f)(2). The commission proposed the

language, " as soon as possible," whereas §70.7(f)(2) states, "as

expeditiously as practicable."

Response

The commission does not change the rule in response to this

comment. The commission believes that the two phrases are

equivalent.

Comment

TCC commented that the commission define that a cause for permit reopening does not exist if a material mistake or inaccurate

statement made in the permit terms and conditions is discovered

by the permit holder and corrected through the submission of the

appropriate documentation to revise the permit.

Response

The commission agrees with the comment and adds language

clarifying that cause for reopening includes the determination by

the executive director or the EPA that the permit contains a material mistake. This is consistent with 40 CFR §70.7(f)(1)(iii). However, the permit holder will be required to revise the permit in accordance with the appropriate permit revision process and will

not necessarily be relieved of any possible enforcement action.

Comment

QLEP, NFN, and 118 individuals commented that the proposed

Title V rules do not protect citizens’ right to know what pollutants facilities in their communities are allowed to emit and the

air pollution laws for which compliance must be demonstrated.

An individual also commented that the Title V rules should ensure that all applicable facilities are required to comply with every air quality requirement and that enforcement action is taken

against all facilities that do not comply. Another individual commented that the Title V rules do not protect citizen’s rights to be

able to determine what pollutants citizens are exposed to and

expressed specific concern about proper guidelines to improve

air quality with respect to greenhouse gases. Allowing citizens to

take part is an important venue that should not be denied. In addition, EEP submitted a copy of a handbook for citizens on how

to participate in the Title V program, and also commented that

once Title V is fully implemented and if the program is working

properly, it should be relatively easy for federal and state enforcement officials and for members of the public to know what the requirements are that apply to a given facility. The program should

therefore serve as an important law enforcement tool. Sierra also

commented that the operating permit program is important because for a long time citizens who live in affected communities

near large industrial sources have been interested in trying to

understand the permit requirements and the other requirements

in the past were not always written into these traditional air permits. This is a very powerful tool because these plants typically

are only inspected maybe once a year or once every two years

by the commission’s staff. Also, for the first time, these requirements will help to ensure compliance on a 24-hour, seven-day

basis, which is an effective tool for community people that want

to know if a facility is operating in compliance and in compliance

with its permits.

Response

The commission does not change the rule in response to this

comment. The primary goal of the operating permit program is

to provide a mechanism, via a permit, to assure compliance with

all applicable rules and regulations. The commission agrees that

these permits are an effective compliance and enforcement tool

for the public, the applicant, the EPA, and the commission. The

commission acknowledges the importance of public participation

and the benefits associated with it. The commission assures that

Chapter 122 provides public participation as required under 40

CFR Part 70 and, in certain cases, exceeds those requirements.

The addition of NSR as an applicable requirement adds information to support a citizens’ right to know what pollutants facilities in

their communities are allowed to emit. In addition, SOPs already

contain a pollutant column in the applicable requirements table

that identifies the pollutant regulated by the applicable requirement. In response to this comment, when the GOPs are proposed for renewal in October 2001, the heading for each GOP

table will include the pollutant(s) regulated within the table. Part

70 does not define greenhouse gas guidelines to be an applicable requirement. Currently, there are no green house gas applicable requirements for the commission to include in an operating

permit. If and when such is promulgated, an operating permit application will include it.

Comment

QLEP and 118 individuals commented that the rules should be

amended to require that notice of operating permit applications

be mailed to all persons living within one-half mile of a site applying for an operating permit. PC also commented that notice

should be mailed to all persons within a certain distance from the

facility.

Response

The commission does not change the rule in response to this

comment. Title 40 CFR Part 70 does not require mailed notice

to persons within a given distance of the site, and Chapter 122

remains consistent with those requirements. The commission

appreciates the commenters’ interest and encourages continued

26 TexReg 3778 May 25, 2001 Texas Register
public participation in the operating permit program and in individual permit actions. The commission has established a procedure for individuals to receive all notices of permitting actions for

an individual site or within a requested county. The commission

believes the ability to be added to this mailing list provides sufficient opportunity for citizens to receive a notice for each site to

which they are interested.

Comment

PC commented that Chapter 122 should be amended to provide

for mailed and published notice more consistent with other air

permitting notice provisions. Specifically, notice, or at least a

reference to the full notice, should be published in a prominent

location in the non-legal notice section of the newspaper consistent with 30 TAC §116.132(b). PC commented that §122.320(b)

should be consistent with the public notice proceedings in

§116.132(b). PC also commented that §122.340(e) should

require notice of a public hearing to be published in the non-legal

notice section of the paper.

Response

The commission agrees that both air permit programs’ notice

requirements should be as consistent as possible. Regarding

mailed notices, both the operating permit and NSR programs

mail notice of receipt of applications to affected state representatives and senators. In addition, both air permitting programs

require a sign posting and bilingual public notice, responses to

comments, an appeals process, a requirement to publish in a

newspaper, the ability to be placed on a mailing list, and holding

a public meeting when requested. In addition, to provide for

easier public access to permit information, the commission

provides electronic access to both NSR and operating permit

actions and correspondence via the remote document server

(RDS) located at: http://www.tnrcc.state.tx.us/permitting/airperm/rdsinstr.htm. As minor NSR is incorporated into operating

permits and procedures for integrated permits are developed,

the commission will evaluate its air permit newspaper notice

requirements to further ensure consistent newspaper notice,

appropriate placement of hearing notice in newspapers, as well

as eliminate any duplicative air permit notice requirements.

Comment

PC commented that a mailing list should be maintained for persons who wish to receive notice of all operating permit applications. Also, the notice of existing mailing lists, only contained in

the Texas Register, is so poor that few people know that they

can have their names added to a mailing list. TCE commented

that citizens should be able to get on a list for a particular facility

or group of facilities in their area so that they can be informed

in terms of permit problems and enforcement issues, violations,

etc. SEED noted that they requested notification on 16 different

plants, but was told that can be done for water but not for air.

They would like to see that corrected.

Response

The commission does not change the rule in response to this

comment. The commission does not rely strictly on any Texas

Register notification to provide information about the option of

being placed on a mailing list. Information concerning mailing

lists is included in each air, water, and waste permit notice published in newspapers. TCAA, §382.056(b)(6) requires newspaper notices for air permit applications to provide a description of

the procedures by which a person may be placed on a mailing

list in order to receive additional information about the application. Section 122.320(b)(9) requires newspaper notices for draft

operating permits to contain a description of the procedures by

which a person may be placed on a mailing list in order to receive

additional information about the application or draft permit. Enforcement actions or violations are matters of public record and

information on these actions are available upon request. Citizens may also request a summary of all violations for a specific

time period for any facility.

The opportunity to be placed on a mailing list is available for

all permit actions the commission requires to have a newspaper notice. The following procedures explain how to be placed

on a mailing list for permit applications that undergo newspaper public notice. Specifically, a person may submit a request to

be added to the mailing list for one or more sites by submitting

the request to the TNRCC Office of the Chief Clerk. The request must include the requestor’s name and address (with zip

code), the name of the site or sites of interest, and the application project number or permit number. In addition, the requestor

may instead ask to be placed on a mailing list to receive permit

notices for every site in a given county.

Comment

PC commented that the commission should work towards providing notice of all operating permit activities on its Title V website.

Response

In addition to the current list of pending and issued operating

permits contained on the website, the commission agrees to add

a list of all draft operating permits in public notice.

Comment

PC and Neighbor for Neighbors do not support concurrent public

notice and EPA review, since this would deny the EPA the benefit

of reviewing citizen comments on a draft permit. Because facilities are allowed to continue to operate while their operating permit applications are pending, the permitting process should not

be expedited at the expense of public participation and thorough

review. TCC was supportive of the proposed §122.350(b)(1),

to enable concurrent public notice and EPA review. TCC believes that this amendment will help make the NSR/Part 70 authorization more efficient and lessen the impacts on the permit

holder’s operations, especially on time-sensitive items. PC commented that §122.350(b)(1) should not be amended to allow public and EPA review periods. Part 70 does not provide for current

public and EPA review period. TCC was supportive of the proposed §122.350(b)(1), to enable concurrent public notice and

EPA review. TCC believes that this amendment will help make

the NSR/Part 70 authorization more efficient and lessen the impacts on the permit holder’s operations, especially on time-sensitive items. PC commented that §122.350(b)(1) should not be

amended to allow concurrent public and EPA review periods.

Part 70 does not provide for current public and EPA review periods.

Response

In response to this comment, the commission amends

§122.350(b)(1) to state that EPA review may run concurrently

with public notice and that, if appropriate, the executive director

may extend the EPA review period. The commission also

amends the definition of draft permit to clarify that it may be the

same as a proposed permit. The commission adopts the option

for concurrent review, since less than 4% of the issued SOPs

have received public comment.

ADOPTED RULES May 25, 2001 26 TexReg 3779
The draft permit is the permit the executive director intends to

issue unless comments are received that result in a change to the

permit. When no comments are received during public notice,

the draft permit and the proposed permit are the same document.

It is this same document that the executive director intends to

issue as a proposed final action, which is consistent with Part 70.

If comments are not received, public participation and thorough

EPA review are in no way impacted by concurrent notice and

review.

When comments are received, the concurrent EPA review period may be extended. Consistent with §122.345, Notice of Proposed Final Action, a notice of proposed final action (action) is

prepared and sent to each commenter, each person on a mailing

list for that permit, the applicant, and the EPA. This action must

contain: a listing of all comments received, the commission’s responses, identification of any changes to the permit, the dates

for the 45-day EPA review period, the dates for the public petition

period, and the procedures by which a petition may be filed. In

this case, the EPA review period may be extended.

Comment

TXOGA supported the revisions to Subchapter D.

Response

The commission appreciates TXOGA’s support of the revisions

to Subchapter D.

Comment

PC commented that §122.320(b)(5) be amended to specify that

notice include the air pollutants with emission changes involved

in any modification.

Response

The commission does not change the rule as a result of this

comment. Section 122.320(b)(5) is consistent with 40 CFR

§70.7(h)(2) because newspaper notice is only required for

significant revisions. The commission provides for a public

announcement period for minor revisions, but this is above and

beyond what is required in Part 70.

Comment

PC commented that §122.320(f) should be amended to specify

that a copy of the permit application, draft permit and any required notices will be provided to the EPA, not just made accessible to the EPA, for consistency with 40 CFR §70.7(a)(1)(iv). Section 122.501(e), General Operating Permits, and §122.502(h),

Authorization to Operate, should also be amended to specify that

copies of draft GOPs and a copy of the authorizations to operate

be provided to the EPA, either in electronic or paper format, and

not merely made accessible to the EPA, to be consistent with 40

CFR §§70.4(b)(3)(v), 70.7(a)(1)(v) and (d)(3)(ii), and 70.8(a).

Response

The preamble to the adopted October 1997 Chapter 122 rules

stated that the EPA commented on the requirement appearing

throughout the rule that information be submitted to the EPA. In

response to that comment, the commission amended to the rule

to specify that information will be made accessible to the EPA.

Comment

PC commented that the word "substantially" should be removed

from §122.320(h)(1), since the amendment may result in public

notice signs with lettering too small to adequately alert the public or signs with insufficient information. Conversely, TCC was

supportive of adding the word "substantially" to §122.320(h)(1)

to adequately meet public notice requirements.

Response

The commission does not change the rule in response to this

comment. The commission believes the language provides the

executive director with necessary discretionary authority and that

40 CFR Part 70 does not require a sign to be posted. This

change is added for consistency with Chapter 39 sign posting

requirements.

Comment

SEED commented that no one has ever seen postings and these

notifications are inadequate. People do not look for these notifications. There needs to be a better way for citizens to find out

who is applying for an operating permit and obtain information in

a timely manner so that citizens can have input to the process

and have it be meaningful. SEED has also attempted to contact the agency and found that it was difficult and frustrating to

call and obtain information about operating permits, to contact

and obtain information via E-mail, or to obtain information at the

TNRCC offices. Staff seemed uninformed about Title V and Air

Permits staff, specifically, had difficulty in obtaining information

quickly and easily and aid citizens in finding information. Even

permits that have not been issued were not in the public information office where they can be viewed with the other permits,

applications, and history of the company so that they can be

viewed together, because that is the reason why Title V is potentially such a good tool. Permits that were viewed were very

sketchy compared with those that have been held up as examples. These permits were already in place before citizens even

knew about the process and the extent of the difficulty involved in

trying to get a hold of this material. Therefore, SEED encourages

the commission to make a system that works better. SEED recommended that the notification process be an easy, accessible

process so citizens don’t have to rely on catching some notification that they may easily miss in the newspaper if they don’t read

notifications every day of the year.

Response

As discussed in response to previous comments, the commission provides several avenues for providing notice to the public

regarding operating permit actions. Some of these avenues are

more comprehensive than federal requirements.

In addition, the commission commits to list all draft operating permits authorized to publish notice on the website and currently

lists all pending and issued operating permits. To further assist

the public, the commission will add the permit reviewer’s name

on the website. In September 1999, the commission amended

§122.320(b)(9) to require that the newspaper notice include information on how a citizen may request to be on a mailing list.

To provide for quicker transmission of open records requests,

the commission has a specific e-mail address which is openrecs@tnrcc.state.tx.us. Each permitting division, including air,

has a public notice coordinator and one or more open records

request coordinators to assist in proper and prompt handling of

information requests. Also, all notices for air, water, and waste

permits include information on how to be placed on a mailing list

for notices and include the toll-free Office of Public Assistance

number.

Starting in January 2000, air operating permit application public notices have been available through the Office of the Chief

Clerk. Each notice specifies that the permit file may be viewed

26 TexReg 3780 May 25, 2001 Texas Register
and copied at the TNRCC Austin Central Offices, the appropriate Regional Office, and in the public location that the applicant

makes the permit application and draft permit available. In addition, to provide for easier public access to permit information,

the commission provides electronic access to both NSR and operating permit actions and correspondence via the remote document server (RDS) located at: http://www.tnrcc.state.tx.us/permitting/airperm/rdsinstr.htm. Specifically the RDS provides electronic access to draft, proposed, and issued operating permits.

Comment

PC requested that §122.320(j) be amended to eliminate the requirement that a hearing be requested by a person who may be

affected by emissions from a site. Operating permit hearings

are not contested case hearings and should, therefore, not be

so limited. Title 40 CFR §70.7(h) does not restrict the availability

of a hearing. PC also commented that §122.340(d) should not

give the executive director discretion to deny a public hearing request that is "unreasonable." PC commented that §122.340(d),

which specifies that the executive director is not required to hold

a hearing if the basis is determined to be unreasonable, should

be amended to state that a public hearing will be held on an

operating permit application if such hearing is requested. Operating permit hearings are notice and comment hearings and

are not overly burdensome for the commission. The commission formerly used a "reasonable" standard in contested case

hearings, which was ambiguous and led to numerous lawsuits,

and the "reasonableness" standard was removed from the contested case hearing rules by the Texas Legislature and should

be deleted from Chapter 122. PC commented that §122.508,

Notice and Comment Hearings for General Operating Permits,

should be amended to require a notice and comment hearing to

be held if one is requested. It should not be limited to reasonable

requests by an affected person.

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption. TCAA,

§382.0561(c) specifies that a person who may be affected by

emissions may request a hearing during the public notice period.

It further specifies that the commission is not required to hold a

hearing if the basis of the request by a person who may be affected is determined to be unreasonable. On May 6, 1996, the

commission submitted an opinion from the Office of the Attorney

General of Texas addressing the issue of standing to participate

in contested case hearings. This opinion was requested by the

EPA following the passage of SB 1546, of the 74th Texas Legislature, 1995. SB 1546 added a definition of "affected person" or

"person affected" or "person who may be affected" for purposes

of administrative hearings held by or for the commission involving

a contested case. It was the opinion of the Attorney General that

SB 1546 was intended to amend §5.115 of the TWC to address

standing for the specific purpose of public participation in permitting matters for which a contested case hearing is required by the

Administrative Procedures Act (APA) and the TCAA. Because

§382.0561 specifically exempts operating permits from the contested case hearing requirements of the APA, the definition in SB

1546 does not apply to "affected persons" or "persons affected"

or "persons who may be affected" as those terms may be used

in reference to the operating permit program. Section 382.0561

continues to be the statutory authority for standing to participate

in operating permit hearings. Thus, the commission believes

that the reasonableness standard continues to apply to requests

for hearings for operating permits. Procedurally, for operating

permits, the commission has interpreted that a person that may

be affected by emissions includes any interested person, which

is consistent with Part 70. The commission has received eight

hearing requests. Of these requests, five were granted, one was

withdrawn by the requestor, and one was not granted since the

request was dated after the end of public notice. So far, no hearing has been denied based upon executive director discretionary

authority.

Comment

PC commented that the proposed language in §122.360(c)

should not be adopted. The provision appears to run the public

petition period for GOPs during the public notice and EPA

review periods. This will not allow the public to know if the EPA

objected to a permit and if there is a need to petition and is also

inconsistent with Part 70.

Response

The commission does not change the rule in response to this

comment. The commission wishes to clarify that by adopting

this language, the commission is not running the public petition

period during the public notice and EPA review periods. The

public petition period for GOPs will start after completion of both

the public notice period and the EPA review period. Adopting

§122.360(c) allows the commission to extend the start of the petition period to the date of GOP issuance. The GOP will never

be issued before the completion of the EPA review period.

Comment

PC commented that §122.501(a)(1), (d)(1)(B), (2)(B), (3)(B), and

§122.505(f)(1), Renewal of the Authorization to Operate Under a

General Operating Permit, should be amended to include the requirement to comply with all applicable requirements and with

all requirements of Chapter 122 for consistency with 40 CFR

§70.4(b)(3)(v) and §70.7(a)(1)(iv). GOPs should assure compliance with all applicable requirements as well as all of the requirements in Chapter 122.

Response

The commission did not propose amendments to the sections

identified by the commenter; therefore, under Texas administrative law, the sections cannot be amended at this adoption. The

commission does not believe that these sections require amendments. Chapter 122 requires that all permits comply with any

applicable requirements as defined in Chapter 122. Therefore,

compliance with Chapter 122 requires compliance with all applicable requirements.

Comment

PC commented that §122.502(a) should be amended to specify

that GOP applications be required to include, at least, a compliance plan and certification as well as information regarding emissions and applicable requirements. Also, the application needs

to include sufficient information to allow for public participation

and affected state and EPA review.

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption.

The commission disagrees with the comments regarding

§122.502(a) and the suggestion to specify that GOP applications be required to include a compliance plan. A qualification

ADOPTED RULES May 25, 2001 26 TexReg 3781
criterion is in each GOP that requires emission units which are

authorized to operate under the respective GOP to be in compliance with all codified requirements at the time of application

submittal. If all units are in compliance, there is no need for

a compliance plan to be submitted. Regarding a compliance

certification, §122.501(a)(1) requires that the conditions of the

GOPs provide for compliance with all requirements of Chapter

122. Therefore, the annual compliance certification requirement

in §122.143(16) is inherent in all GOPs. The applications for

GOPs do not require a submittal of applicable requirements

because the purpose of the GOPs is to codify the applicable

requirements for the applicants. GOP applications are not

required to undergo public participation, affected state review,

and EPA review because each GOP has already met these

requirements prior to issuance under §122.501(a). Further,

40 CFR §70.6(d)(2) specifies that the permitting authority may

grant a request for an authorization to operate under a GOP

without repeating the public participation procedures. The

applications are simply requests for approval to operate under

the GOP.

Comment

PC commented that §122.503, Application Revisions for

Changes at a Site, inappropriately allows sites authorized by

GOPs to operate under provisional terms and conditions.

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption. The

provisional terms and conditions require permit holders to comply with the underlying applicable requirements as those requirements are changed in state and federal rules. Provisional terms

and conditions do not allow for exemptions or any other condition

of noncompliance with the state and federal rules.

PC commented that §122.506(a), Public Notice for General Operating Permits, should require notice of GOPs to be mailed to

all persons who request to be included on an operating permit

mailing list.

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption. The

commission agrees with this comment, will address it procedurally and may consider this comment for future rulemaking.

Comment

PC commented that §122.509, Public Announcement for General Operating Permits, should be amended to specify that permit

revisions to GOPs comply with the revision process in §§122.210

- 122.221. The public announcement provisions do not provide

for adequate notice to the public.

Response

The commission did not propose amendments to §122.509;

therefore, under Texas administrative law, the section cannot

be amended at this adoption. The commission believes the

GOP permit revision processes contained in §122.501(d) and

§§122.506 - 122.509 parallel the permit revision processes

in §§122.210 - 122.221. Specifically, §122.501(a) specifies

the public participation required for issuance of a GOP which

includes public notice, affected state review, EPA review, and

public petition. Section 122.501(d) provides for administrative,

minor, and significant revisions for GOPs. Section 122.501(d)(1)

and (2), related to administrative and minor permit revisions,

are included in case they are needed; although, the commission

believes that GOP revisions will exclusively or almost exclusively

use the significant revision process. Section 122.506 contains

the public notice requirements for GOP issuance, significant

permit revision, or rescission of any GOP. This section also

requires notice of a draft GOP to be published in the Texas

Register; on the commission’s publicly accessible electronic

media; and in the daily newspaper of largest general circulation

in Austin, Dallas, and Houston if the GOP applies state-wide.

Section 122.506 also specifies the information that must be

contained in the newspaper notice, including an opportunity to

request a notice and comment hearing. Section 122.508 contains the provisions for notice and comment hearings for GOPS

and the hearing notice requirements. Section 122.509 contains

the public announcement provisions that the commission will

use to process a GOP minor revision which exceeds the 40

CFR §70.7(h) requirements.

Comment

PC commented that §122.510, General Operating Permits

Adopted by the Commission, should be amended to specify that

GOPs expire every five years and requested an explanation

of the commission’s authority to automatically transfer an

authorization to operate under one GOP to an authorization to

operate under another GOP.

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption.

Additionally, it is not necessary to amend §122.510 because

§122.501(f) requires that GOPs be renewed at least every five

years after the effective date. The basis for the commission’s

authority to automatically transfer an authorization to operate

under one GOP adopted by the commission to an authorization

to operate under another GOP adopted by the executive

director is found under the TCAA, §382.012, which provides the

commission the authority to create a comprehensive plan for

the proper control of the state’s air; §382.017, which provides

the commission authority to adopt rules; §382.051(b)(2), which

provides the commission authority to issue permits for numerous similar sources; and §382.054, which prohibits operation of

a federal source of air pollution without a FOP obtained from

the commission.

Comment

PC commented that GOPs do not appear to incorporate all applicable requirements. NSR permits are excluded, specifically

in §122.511(b)(4)(A), Oil and Gas General Operating Permit -

Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend,

Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties. Also, the rules do not appear to include monitoring and reporting sufficient to meet the

requirements of 40 CFR §70.6(a)(3)(i)(B) and §70.6(c)(1).

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption.

However, the commission is currently in the process of revising

the GOPs to include any new applicable requirement (including

minor NSR), monitoring, recordkeeping, and reporting requirements. In addition, the executive director is implementing

26 TexReg 3782 May 25, 2001 Texas Register
periodic monitoring and CAM through a phased approach.

The executive director reviewed all applicable requirements to

determine which requirements contain no monitoring and added

any appropriate periodic monitoring to the GOPs scheduled

to be issued in October 2001. The existing GOPs by rule are

required to be renewed by October 26, 2001. Because of the

extensive changes to the applicable requirements in every GOP,

the commission is not renewing the GOPs by rule. Instead, the

executive director will issue new GOPs which will include minor

NSR. The executive director will institute proceedings to reopen

previously approved authorizations to operate. Each owner or

operator authorized to operate under a GOP by rule will be

required to apply for a new authorization to operate under the

executive director issued GOP or submit an application for an

SOP.

The executive director, working with the EPA, developed acceptable procedures and appropriate monitoring requirements to satisfy the Part 70 periodic monitoring provisions. These requirements are included in initially issued permits. The EPA is agreeable to phasing in the remainder of the needed periodic monitoring requirements. The executive director called in full applications based on Standard Industrial Classification (SIC) codes.

CAM and periodic monitoring GOPs are being developed and

phased in accordance to this call-in schedule. Therefore, the

commission can ensure that adequate and appropriate CAM and

periodic monitoring are available when needed for incorporation

into permits.

Comment

PC commented that the site-wide GOP provided for in §122.516,

Site-wide General Operating Permit, does not apply to similar

sources.

Response

The commission did not propose amendments to the section

identified by the; therefore, under Texas administrative law, the

section cannot be amended at this adoption. The commission

disagrees with the comment that the site-wide GOP provided for

in §122.516 does not apply to similar sources. The site-wide

GOP was developed for simple sites having only site-wide requirements or for major source sites with no applicable requirements.

Comment

PC commented on §122.516(b)(3)(A)(i), (B)(i), (D)(i) and (E)(i).

The compliance certification should be based on any credible

evidence and not limited to a once per year visual observation of

stationary vents.

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption. Section 122.146(4) specifies that the certification be based on, at a

minimum, the monitoring method (or recordkeeping method, if

appropriate) required by the permit to be used to assess compliance. Title 40 CFR §70.6(c)(5)(iii)(B) specifies that permits shall

include a requirement that the compliance certification include

the identification of the method or other means used by the owner

or operator for determining the compliance status with each term

and condition and that such methods and other means shall include, at a minimum, the methods and means required under

40 CFR §70.6(a)(3), Monitoring and Related Recordkeeping and

Reporting Requirements. Likewise, the Chapter 122 definition of

deviation is any indication of noncompliance with a term or condition of the permit as found using, at a minimum, compliance

method data from monitoring, recordkeeping, reporting, or testing required by the permit. This also is consistent with the information contained in 40 CFR §70.6(c)(5)(iii)(B).

The commission’s rules do not prevent the consideration of any

credible evidence to determine compliance with a Title V permit, including instances where the commission receives that information from citizens. The commission’s regional offices are

charged with reviewing Title V certifications and may include

consideration of all credible evidence in evaluating certifications

of compliance. The commission has preferred using evidence

obtained by commission staff because they are trained to collect

evidence in accordance with standard and legal methods and to

handle that evidence properly to preserve the chain of custody.

These standards of collection and handling are established to

protect the reliability of that evidence. Whether the evidence is

collected by the commission or by citizens, the information to be

used as credible evidence must meet Texas Rules of Evidence

before the commission can consider it in making decisions related to compliance or non-compliance. The commission is currently developing guidance concerning the use of evidence obtained from sources outside the commission and the criteria that

must be met for the evidence to be considered in making decisions related to compliance. Once issued, the guidance will be

consistent with any Texas legislation currently being considered

that deals with credible evidence.

The commission determined that a once per year visual observation is acceptable periodic monitoring under

§122.516(b)(3)(A)(i), (B)(i), (D)(i) and (E)(i). The EPA has

accepted this through their review of SOPs containing the same

terms and conditions.

Comment

PC commented on §122.516(c) in that general terms and conditions are subject to the same problems as that for the general

terms and conditions of individual operating permits.

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption. The

executive director is currently reviewing the GOPs and expects

to revise them in the near future. The revisions will be consistent,

as appropriate, with the general terms and conditions of individual operating permits.

Comment

The EPA commented that the commission never submitted

Chapter 122, Subchapters G, Periodic Monitoring, and Subchapter H, Compliance Assurance Monitoring, for approval. It is

not clear that the provisions of Subchapter H meet 40 CFR Part

64 (Part 64). If the commission intends to submit these subchapters to the EPA for approval, it must include documentation

that these subchapters meet the requirements of Part 64 and

other federal requirements applicable under Part 70.

Response

The commission is submitting Subchapters G and H as part of

the full program submittal. Documentation demonstrating that

the subchapters meet the requirements of Parts 64 and 70 will

be provided with the submittal.

Comment

ADOPTED RULES May 25, 2001 26 TexReg 3783
PC commented that the implementation of the CAM GOP, periodic monitoring GOP, and site- wide GOP are inconsistent with

40 CFR §70.6(d) in that they apply to sources that are not similar. Instead, CAM and periodic monitoring GOPS can cover

every source and are not permits at all, but are required conditions of an operating permit and should be included in operating permits in the same manner as all other required conditions. PC also commented that periodic monitoring, provided in

§122.600(a)(1), Implementation of Periodic Monitoring, should

not be implemented through a GOP. Periodic monitoring does

not apply to numerous similar sources and is a site-specific determination. It is a permit condition, not a permit, and is required

to be included in each operating permit. Any new permit must

include periodic monitoring.

Response

The commission does not change the rules in response to this

comment. While 40 CFR §70.6(d) references sources that are

similar, the implementation of the CAM and periodic monitoring GOP are for similar sources subject to applicable requirements. While these emission units may be found at different

sites, the emission units subject to the applicable requirements

must have similar attributes. Therefore, the commission believes

that the implementation of CAM and periodic monitoring through

the GOPs is consistent with 40 CFR §70.6(d). The commission

would like to note that periodic monitoring is implemented in two

phases. The first phase is at initial issuance for those emission limitations or standards with no monitoring, testing, recordkeeping, or reporting. The second phase is through the GOPs

for those emission limitations or standards which only require a

one-time test at start-up or when requested by the EPA.

Comment

PC commented that the commission’s implementation of CAM is

inconsistent with the EPA’s CAM rule.

Response

The commission does not change the rules in response to

this comment. Although Part 64 focuses on a "case-by-case"

approach, it allows permitting authorities the flexibility to use

a programmatic approach, such as the CAM GOP approach,

for the implementation of CAM. The commission submitted

several comments to the EPA during the development of Part

64 recommending that permitting authorities be allowed to

establish CAM requirements on a programmatic basis. This

programmatic approach would allow permitting authorities to

design CAM monitoring requirements for a class of emission

units that can be used across the state. The preamble to the

promulgated Part 64 rule states that "{t}he EPA encourages

States to consider adding monitoring requirements to existing

and new rules that are consistent with 40 CFR 64 requirements."

In this manner, the burdens associated with source-specific

monitoring development could be reduced. To provide an

incentive for this type of rule, the final rule includes a provision

(see 40 CFR §64.4(b)) that allows the owner or operator

to rely upon this type of programmatic rule as the primary

documentation of the appropriateness of its monitoring. This

approach would reduce the number of case-by-case reviews

necessary to implement Part 64 (62 FR 54903). Although the

40 CFR 64 preamble discusses the programmatic approach

in the context of rulemaking, the commission believes that

the CAM GOP approach is consistent with the goals of the

programmatic approach and achieves the same results. Thus,

the CAM GOP streamlined approach is designed to address 40

CFR 64 requirements in a programmatic manner.

Comment

PC commented that it is not appropriate to incorporate periodic

monitoring, as specified in §122.608, Procedures for Incorporating Periodic Monitoring or CAM, as specified in §122.708,

through GOPs. Section 122.608(b)(1) allows the incorporation

of periodic monitoring with no public participation. CAM GOPs

and periodic monitoring GOPs do not allow public participation in

determining the appropriateness of monitoring or deviation limits for specific facilities. Public comments on the CAM or periodic monitoring GOP itself is insufficient, since the public doesn’t

have the facility-specific information it needs for full participation

at the time the GOP is issued, only until the facility submits an

application for an individual permit. Thus, there is no real opportunity for the public to participate in the detailed site-specific

determinations that must be made when determining monitoring.

Since monitoring and reporting and the associated requirements

are the only things that are added to an operating permit that are

not included in underlying applicable requirements, it is very important that citizens have full participation in deciding what kind

of reporting and monitoring requirements go into operating permits.

Response

The commission does not change the rule in response to this

comment. The CAM and periodic monitoring GOPs are subject to public notice, affected state review, notice and comment

hearing (if requested), EPA review, and public petition, as are all

GOPs when initially issued by the executive director. As permit

holders apply to use a CAM and periodic monitoring GOP, the executive director will review the appropriateness of any monitoring

option selected, as well as any additional, site-specific requirements that may be necessary to satisfy Part 64 if the emission

unit is subject to CAM. Once approved, the monitoring option

will be codified in either a FOP or a GOP. Therefore, when incorporating CAM or periodic monitoring into a FOP the monitoring

option chosen, the deviation limits, and the justification for the

deviation limit will be subject to public notice or public announcement, affected state review, public petition, notice and comment

hearing (if applicable and if requested), and EPA review. For permit holders operating under traditional GOPs and using a CAM

GOP, the approved monitoring options become representations

under which the permit holder shall operate.

Comment

PC commented that Part 70 requires adequate testing, monitoring, reporting and recordkeeping requirements to be incorporated into operating permits if the underlying applicable requirements do not contain them. Section 70.6(a)(3)(i)(B) requires periodic monitoring and §70.6(c)(1) requires monitoring sufficient to

assure compliance. Compliance assurance monitoring is actually a separate requirement from the CAM requirement and the

EPA has made it clear in its regulations that operating permits

still need to include their own compliance assurance monitoring

if the CAM isn’t going to be in effect. Chapter 122 should be

amended to make it clear that each and every permit has to include compliance assurance monitoring for every requirement.

Response

The commission does not change the rules in response to this

comment. The commission disagrees that 40 CFR §70.6(c)

requires a separate compliance assurance monitoring program

26 TexReg 3784 May 25, 2001 Texas Register
from that required by Part 64. Section 70.6(c) provides general

conditions for compliance purposes. On October 22, 1997, the

EPA established the CAM Program with the promulgation of

40 CFR Part 64 to respond to FCAA, §114(a)(3), concerning

enhanced monitoring and compliance certifications, and FCAA,

§504(b), concerning monitoring and analysis (62 FR 54901).

The EPA states that "the general purpose of the monitoring

required by Part 64 is to assure compliance with emission

standards through requiring monitoring of the operation and

maintenance of the control equipment and, if applicable, operating conditions of the pollutant-specific emissions unit" (62

FR 54918). While 40 CFR 64 requires additional monitoring

and analysis for emission units which exceed the major source

threshold, periodic monitoring is required for all other emission

units with applicable requirements which require only a one-time

test or do not require any monitoring, testing, recordkeeping, or

reporting. Therefore, with the implementation of the CAM and

periodic monitoring GOPs, each permit will contain monitoring

so that compliance can be determined.

Comment

PC commented that §122.142(c) only requires periodic monitoring to be included as required by the executive director. Since

Part 70 requires that all operating permits include periodic monitoring for each applicable requirement, this condition should be

removed. EEP also commented that each operating permit requires periodic monitoring.

Response

The commission does not change the rules in response to this

comment. On April 14, 2000, the United States Court of Appeals for the District of Columbia Circuit decided Appalachian

Power Company, et al, vs. Environmental Protection Agency.

Appalachian Power set aside, in its entirety, the EPA’s "Periodic

Monitoring Guidance for Title V Operating Permits Programs,"

released in September 1998. The court stated that "state permitting authorities may not, on the basis of the EPA’s Guidance

or 40 CFR §70.6(a)(3)(i)(B), require in permits that the regulated source conduct more frequent monitoring of its emissions

than that provided in the applicable State or Federal standard,

unless that standard requires no periodic testing, specifies no

frequency, or requires only a one-time test." The commission

would like to note that periodic monitoring is implemented in two

phases. The first phase is at initial issuance for those emission limitations or standards with no monitoring, testing, recordkeeping, or reporting. The second phase is through the GOPs

for those emission limitations or standards which only require a

one-time test (at start-up or when requested by the Administrator). Each permit will contain periodic monitoring as appropriate.

Comment

PC commented that §122.604, Periodic Monitoring Application

Due Dates, and §122.704, Compliance Assurance Monitoring

Application Due Dates, require that no facility need submit an

application for periodic monitoring or CAM for approximately

two years or longer; periodic monitoring and CAM should be

included in operating permits. Those permits already issued

that do not include periodic monitoring are defective and should

be reopened. PC commented that periodic monitoring is a

requirement of every operating permit and cannot be deferred

as specified in §122.604.

Response

The commission does not change the rules in response to this

comment. As previously discussed, the executive director is implementing CAM and periodic monitoring through a phased approach based on permit issuance and SIC codes. The commission considered several factors when developing the schedule

for application due dates. Due to the technical requirements in

40 CFR Part 64, compliance with CAM and periodic monitoring

may require permit holders to purchase and install new equipment or conduct performance testing. The application submittal

schedule should allow permit holders a reasonable amount of

time to budget for, purchase, install, and test equipment necessary to comply with CAM and periodic monitoring requirements.

Furthermore, the schedule allows the executive director time to

develop comprehensive monitoring options for inclusion in various CAM and periodic monitoring GOPs issued over time. Finally, under the schedule, permit holders will submit applications to the executive director in manageable numbers throughout each calendar year. The executive director will be able to

review these applications in a more timely fashion than if all applications were due at the same time.

Comment

PC commented that §122.142 does not specify that operating

permits must include compliance assurance monitoring.

Response

The commission agrees with the comment and adopts new

§122.142(h) which includes a requirement for CAM.

Comment

Sierra commented that the commission’s rules do not provide

for sufficient monitoring, reporting, and recordkeeping in order

to ensure that there is continuous compliance around the clock,

365 days a year, in terms of all of the applicable requirements.

Response

The commission does not change the rule in response to this

comment. The commission believes that the requirements in

Chapter 122 are sufficient to determine compliance with the applicable requirements because the program implements all required monitoring and recordkeeping required under Part 70.

Comment

PC commented that if it were appropriate to incorporate

periodic monitoring through a GOP (it is not), the addition of

periodic monitoring would be a significant change in monitoring

provisions of the existing permit and, for consistency with

40 CFR §70.7(e)(4)(i), would be required to be incorporated

through a significant permit revision. It is also not appropriate

to incorporate periodic monitoring through a minor permit

revision, provided in §122.608(b)(2) and (c). Incorporating CAM

requirements would be a significant change in monitoring and

would require a significant permit revision, consistent with 40

CFR §70.7(e)(4)(i).

Response

The commission does not change the rule in response to this

comment. Section 122.608(b)(2) specifies that permit holders

operating under a permit other than a GOP and applying for a

periodic monitoring GOP must comply with §122.217(f) and (g).

The EPA states in the preamble to the adopted Consolidated Air

Rule that an instance where a permit holder has significant discretion over the monitoring to be contained in a FOP constitutes

a significant permit revision (65 FR 78272). These changes are

ADOPTED RULES May 25, 2001 26 TexReg 3785
not significant permit revisions because significant permit revisions to monitoring requirements are those over which the permit holder has significant discretion. Because the permit holder

is selecting a monitoring option already determined by the executive director to satisfy periodic monitoring, the permit holder does

not have significant discretion over those requirements. In addition, each periodic monitoring GOP is subject to public notice, affected state review, notice and comment hearing (if requested),

EPA review, and public petition; therefore, it is unnecessary to

repeat these procedural requirements using the significant permit revision process.

Comment

PC commented that the periodic monitoring permit content

in §122.610, Periodic Monitoring General Operating Permits

Content, and the CAM permit content in §122.710, Compliance

Assurance Monitoring General Operating Permit Content, do

not meet the requirements of 40 CFR §70.6(a) and (b). PC

commented that the periodic monitoring and CAM application

requirements in §122.612, Periodic Monitoring Requirements

in Permits and General Operating Permit Applications, and

§122.706, Applications for Compliance Assurance Monitoring,

do not contain all the information required by 42 USC §7661b,

necessary to determine qualification for the GOP, and necessary

to assure compliance with the GOP.

Response

The commission does not change the rules in response to this

comment. The CAM and periodic monitoring GOPs were not

designed to mimic a SOP; therefore, the content will not be identical to the requirements of 40 CFR §70.6(a) and (b). The CAM

and periodic monitoring GOPs are unique in that the information

submitted will become a part of the existing SOP or GOP and

are supplemental to an existing operating permit. The commission believes that Part 70 implements the requirements listed in

42 USC §7661b, Permit Applications. The commission believes

its application requirement is consistent with 40 CFR §70.6(a)

and (b). These requirements have been incorporated into a previously issued SOP or GOP and are not required for CAM or

periodic monitoring GOP applications.

Comment

PC commented on §122.700(a)(1), Implementation of Compliance Assurance Monitoring. Part 64 does not provide for the use

of a GOP for establishing CAM. CAM is a permit requirement of

all operating permits and should not be implemented through a

GOP.

Response

The commission does not change the rule in response to this

comment. Although 40 CFR Part 64 focuses on a "case-by-case"

approach, it allows permitting authorities the flexibility to use a

programmatic approach, such as the CAM GOP approach, for

the implementation of CAM. The commission submitted several

comments to the EPA during the development of 40 CFR 64,

recommending that permitting authorities be allowed to establish CAM requirements on a programmatic basis. This programmatic approach would allow permitting authorities to design CAM

monitoring requirements for a class of emission units that can

be used across the state. The preamble to the promulgated 40

CFR 64 rule states that "{t}he EPA encourages States to consider adding monitoring requirements to existing and new rules

that are consistent with 40 CFR 64 requirements." In this manner, the burdens associated with source-specific monitoring development could be reduced. To provide an incentive for this

type of rule, the final rule includes a provision (see §64.4(b)) that

allows the owner or operator to rely upon this type of programmatic rule as the primary documentation of the appropriateness

of its monitoring. This approach would reduce the number of

case-by-case reviews necessary to implement 40 CFR 64 (62

FR 54903). Although the 40 CFR 64 preamble discusses the

programmatic approach in the context of rulemaking, the commission believes that the CAM GOP approach is consistent with

the goals of the programmatic approach and achieves the same

results. In addition, the CAM GOP approach would more easily

accommodate changes in applicable requirements. The ability

to quickly address revised applicable requirements is particularly

important to ensure that FOPs reflect a site’s most current compliance obligations.

Comment

PC commented that §122.702(c)(6), Compliance Assurance

Monitoring Applicability, should be amended to state " ...continuous compliance determination method as defined in 40 CFR

§64.1, unless the...".

Response

The commission does not change the rule in response to this

comment. Section 122.10 defines "continuous compliance determination method." This definition is consistent with the definition contained in 40 CFR §64.1.

Comment

PC commented that the exemptions in §122.702(c)(7) and (8)

are not provided for in §64.2.

Response

The commission does not change the rule in response to this

comment. Section 122.702(c)(7) exempts emission limitations

or standards, in addition to those identified in 40 CFR 64, that

the EPA identifies in guidance as exempt from CAM. This exemption will allow the regulated community to take advantage

of exemptions that the EPA identifies in guidance for 40 CFR

64. For example, the EPA states in its Compliance Assurance

Monitoring Technical Guidance Document issued in August 1998

that the amendments to 40 CFR 61, Subpart L are exempt from

CAM although the original emission limitations or standards were

proposed before November 15, 1990. Section 122.702(c)(8)

also exempts emission limitations or standards regulating fugitive emissions to be consistent with the EPA’s 40 CFR 64 preamble which states that "fugitive emissions are not subject to any

specific part 64 monitoring requirements" (62 FR 54909).

Comment

PC commented that §122.704 allows for submittal of untimely

CAM applications. CAM applications are required to be submitted in accordance with 40 CFR §64.5. In addition to CAM, all

operating permits are required to include monitoring sufficient to

assure compliance.

Response

The commission does not change the rule in response to this

comment. The executive director is implementing CAM and periodic monitoring through a phased approach based on permit

issuance and SIC codes. The commission considered several

factors when developing the schedule for application due dates.

26 TexReg 3786 May 25, 2001 Texas Register
Due to the technical requirements in 40 CFR Part 64, compliance

with CAM and periodic monitoring may require permit holders

to purchase and install new equipment or conduct performance

testing. The application submittal schedule should allow permit

holders a reasonable amount of time to budget for, purchase,

install, and test equipment necessary to comply with CAM and

periodic monitoring requirements. Furthermore, the schedule allows the executive director time to develop comprehensive monitoring options for inclusion in various CAM and periodic monitoring GOPs issued over time. Finally, under the schedule, permit

holders will submit applications to the executive director in manageable numbers throughout each calendar year. The executive

director will be able to review these applications in a more timely

fashion than if all applications were due at the same time.

Comment

PC commented that a deviation limit is a very significant permit

condition that should not be determined outside the public participation process and must be established in accordance with

§64.3(d).

Response

The commission does not change the rule in response to this

comment. Some monitoring options contained in a CAM GOP

may have a deviation limit established in the CAM GOP. If this

is not the case, the permit holder will submit a proposed deviation limit and supporting justification for approval by the executive director in accordance with §122.706(a)(1)(E). The deviation limit will be based on information about the specific operation of the control device and emission unit. As specified in

§122.706(a)(3), the permit holder will typically use performance

testing, engineering calculations, historical data, and manufacturer’s recommendations to justify the proposed deviation limit.

However, the CAM GOP may more specifically define the approach for justifying the deviation limit or provide alternatives to

those specified in Subchapter H. In addition, 40 CFR §64.6(c)(1)

specifies what monitoring needs to be codified in permit terms

and conditions. Title 40 CFR §64.6(c)(1) states that the permit shall contain, at a minimum, the following: the indicator(s)

to be monitored, the means or device to measure the indicator,

and the performance requirements established to satisfy 40 CFR

§64.3(b) and (d). Neither 40 CFR §64.3(b) or (d) contain indicator ranges or deviation limits, and the inclusion of the deviation

limit is not required to be incorporated into the permit by 40 CFR

§64.6.

Comment

PC commented that the phrase "Unless otherwise approved by

the executive director," should be deleted from §122.706(a)(4)

for consistency with 40 CFR §64.3, which requires that CEMS,

COMS or PEMS be used. PC also commented that the phrase

"Unless otherwise approved by the executive director," should

be deleted from §122.714(b), Compliance Assurance Monitoring

Requirements in Permits and General Operating Permit Applications, for consistency with 40 CFR §64.3(d), which requires that

CEMS, COMS, or PEMS be used.

Response

The commission does not change the rule in response to this

comment. As required by 40 CFR §64.3(d)(1), §122.706(a)(4)

specifies that owners or operators of emission units subject

to applicable requirements that require continuous emission

monitoring systems (CEMS), continuous opacity monitoring

systems (COMS), or predictive emission monitoring systems

(PEMS) must submit a CAM GOP monitoring option that

includes the use of the CEMS, COMS, or PEMS to satisfy CAM

requirements for the other emission limitations or standards

that are subject to CAM for that particular emission unit. Since

Subchapter H applies on a pollutant-by- pollutant basis, this

requirement also applies on a pollutant-by-pollutant basis. For

example, a nitrogen oxides (NOx

) CEMS would be used for NOx

emission limits that apply to the emission unit but would not

be used for SO2 emission limits. Therefore, §122.704(a)4) is

consistent with 40 CFR Part 64.

Comment

PC commented that the CAM GOP provided in §122.710 does

not include the elements required by 40 CFR §64.4 or §64.6.

Response

The commission does not change the rule in response to this

comment. The CAM GOP will include a list of emission limitations or standards that are subject to Subchapter H. Monitoring

options established by the executive director to satisfy CAM will

be associated with each emission limitation or standard. In addition, a CAM GOP will be subject to public notice, affected state

review, notice and comment hearing (if requested), EPA review,

and public petition as are all GOPs when initially issued. The

monitoring option from the CAM GOP will then be incorporated

into the traditional GOP or SOP. Therefore, the commission believes that the CAM GOP in combination with a traditional GOP

or a SOP meets all the permit content requirements.

Comment

PC commented that §122.716, Compliance Assurance Monitoring Quality Improvement Plans, should provide that operating

permits may specify an appropriate threshold for requiring the

implementation of a quality improvement plan (QIP). The QIP

should include the requirements listed in 40 CFR §64.8.

Response

The commission did not propose amendments to the section

identified by the commenter; therefore, under Texas administrative law, the section cannot be amended at this adoption. Section

122.716 provides the executive director the authority to require

permit holders to implement quality improvement plans (QIPs).

Title 40 CFR §64.8 establishes that QIPs are optional, at the permitting authorities’ discretion. The commission chose to establish QIPs on a "case-by-case" basis, as appropriate. A QIP may

be required based on the frequency of deviations, the cause of

deviations, the magnitude of deviations, the permit holder’s response to deviations, or other information that indicates that the

emission unit or control device is not being maintained and operated consistently with good air pollution control practices. The

data to evaluate these criteria will be collected from deviation reports, compliance certifications, site inspections, and any other

appropriate sources. Nothing in this section is intended to limit

the commission’s options for taking other enforcement action.

Since QIPs are optional, at the permitting authorities’ discretion,

the commission does not believe this section needs to be revised.

Comment

PC commented that the commission should ensure that every file

from which confidential information is withheld contains a clearly

recognizable notice to the public that such information has been

withheld and review the substance for confidentiality claims.

Response

ADOPTED RULES May 25, 2001 26 TexReg 3787
The commission maintains a records retention and management

system to address statutory requirements for public records,

open records requests and confidentiality of records, including

requirements under the Public Information Act. Public notice

authorization packets sent to instruct an applicant on how to

properly publish notice for a draft operating permit state that

if the application is submitted to the TNRCC with information

marked as confidential, the applicant is required to indicate

which specific portions of the application are not being made

available to the public. These portions of the application must

be accompanied with the following statement: "Any request

for portions of this application that are marked as confidential

must be submitted in writing, pursuant to the Public Information

Act, to the TNRCC Public Information Coordinator (MC 197), P.

O. Box 13087, Austin, Texas 78711-3087." The commission’s

procedures include handling permit data and files in the same

manner as specified above. So far, the commission is unaware

of any open records request for an operating permit application

that contained any confidential data. The commission has

informed applicants that the whole operating permit application

cannot be considered confidential and that data needed to

determine which applicable requirements apply to the site are

also not confidential. As discussed in a previous comment,

the commission is obligated to address claims of confidential

information consistent with the Texas Government Code, Title 5,

Chapter 552, regarding public information and exceptions from

required disclosure and THSC, §382.041 regarding confidential

information.

Comment

QLEP and 118 individuals commented that the commission’s

rules should be amended to allow credible evidence of violations,

including evidence gathered by citizens, to be used to prove air

pollution violations and that the commission drafts operating permits so polluters can ignore citizen gathered evidence. NFN also

requested that the agency recognize credible evidence gathered

by responsible citizens whom Title V seeks to protect. PC commented that citizen gathered evidence is excluded form enforcement actions and requested the commission to amend 122 to

specifically acknowledge that any credible evidence may be used

to demonstrate a violation at a Title V facility. If citizens come

up with credible evidence that there have been violations at a

facility, the commission should be required to consider that evidence. PC also noted that public participation is crucial to the

success of the operating permit program. The TNRCC cannot

be everywhere at once, and citizens often have more information

regarding facilities in their communities than the TNRCC does.

The participation of those citizens in ensuring that all applicable requirements are included in permits and that facilities are

complying with those requirements is essential. An individual

also commented on the commission’s inability to gather, accept,

recognize and act upon credible evidence to prove air pollution

violations, including evidence gathered by its own employees, as

well as citizens. Further, EEP commented that Title V provides

for the use of any credible evidence to prove violations, that evidence gathered by members of the public should be used in enforcement actions, and that such citizens should be thanked and

encouraged by the commission. (An example was given that if

opacity is monitored on a continuous basis, such monitoring is

legitimate evidence of an opacity violation. You can’t be limited

to visual inspection by the operator of the facility.) The fact that

the commission does not recognize this evidence damages the

credibility of the commission. Title V rules should be amended,

and operating permits should be written, to allow the use of all

credible evidence, regardless of how it is collected.

Response

The commenters have raised two different, but related issues:

the use of credible evidence in demonstrating compliance with

Title V requirements and the use of credible evidence to prove

the existence of a violation in an enforcement action. With regard

to the Title V issues, the commission’s rules do not prevent the

consideration of any credible evidence to determine compliance

with a Title V permit, including instances where the commission

receives that information from citizens. The commission’s regional offices are charged with reviewing Title V certifications

and may include consideration of all credible evidence in evaluating certifications of compliance. The commission has preferred

using evidence obtained by commission staff because they are

trained to collect evidence in accordance with standard and legal

methods and to handle that evidence properly to preserve the

chain of custody. These standards of collection and handling

are established to protect objectivity. Whether the evidence is

collected by the commission or by citizens, the information to be

used as credible evidence must meet Texas Rules of Evidence

before the commission can use it as the basis for, or as a component of, decisions related to compliance or non-compliance. The

commission is currently developing guidance concerning the use

of evidence obtained from sources outside the commission and

the criteria that must be met for the evidence to be considered in

making decisions related to compliance. Once issued, the guidance will be consistent with any Texas legislation currently being

considered that deals with credible evidence.

Comment

QLEP and 118 individuals commented that the commission’s

rules do not protect citizen’s right to breathe clean air, the rules

contain loopholes that allow facilities to illegally avoid pollution

limits and penalties through claims of grandfathering, upsets and

audit privilege and that it will be impossible to clean Texas’ air

until the commission closes these loopholes. Further, the commission’s Title V rules should ensure that facilities are required

to comply with every applicable requirement and that enforcement action is taken against facilities that do not comply. NFN

commented that exemptions such as grandfathering, upsets and

audit privilege laws, combined with the agency’s failure to conduct meaningful investigations of whether the privilege of such

exemptions is merited, allow emissions in excess of permit limits

with no real threat of enforcement. Also, there is no assurance

that a previously exempted facility will come under real scrutiny in

advance of, or in connection with or after the permitting process.

PC concurred and added that these loopholes prevent the commission from having the enforcement authority required by 40

CFR §70.11. Grandfathering should be eliminated altogether or,

at the very least, operating permits should be used as a tool to

ensure that facilities do not falsely claim grandfathered status

and, thereby, avoid pollution control requirements. Because the

commission is granting negative applicability permit shields, it is

especially important that the commission does not wrongly allow facilities to claim grandfathered status. To be consistent with

Part 70, Chapter 122 should specify that applications must include a detailed explanation of how the facility qualifies for any

exemption claimed and documented to support that explanation.

Also, operating permits should also contain an explanation for

any exemption from applicable requirements. Also, the commission is not actually examining whether or not the facility qualifies for an exemption and is not including any such explanation

26 TexReg 3788 May 25, 2001 Texas Register
in permits, as required by Part 70. The commission should require permits to contain a detailed explanation of how the facility

complies with each of the requirements of the exemption and

the facility should be required to certify in its annual compliance

certification whether or not it continues to meet each of the requirements for the exemption. The commission should not have

the authority to issue permit shields unless its rules have procedures to ensure that facilities are not illegally claiming exemptions. NFN also expressed concern with grandfathered facilities

and the possibility of a negative applicability permit shield as a

result of a meaningless permit application review. Another individual commented that grandfather clauses and expecting companies to police themselves in an effort to clean up the environment will never adequately provide a healthy environment. Monetary penalties for failure to act or shutting down those who fail

to comply with clean air acts will aid in providing air that is fit to

breathe.

PC commented that the Texas Environmental, Health, and

Safety Audit Privilege Act (the Act) prevents the commission

from having adequate authority to enforce the requirements

of Title V permits. This is contrary to §502(b)(5) of Title V,

which requires that states have the authority to enforce the

terms and conditions of operating permits. The Act is broad

and allows facilities to claim audit privilege exemptions for a

wide range of violations, thereby avoiding penalties or injunctive

relief. Further, the Act prevents inspectors from having access

to information they need to determine a facility’s compliance

history and even provides special penalties for commission staff,

and anyone else, who discloses information that is privileged

under the Act. The Act does not adequately prevent claims of

immunity by repeat or continuous violators; facilities that benefit

economically from their violations and have economic incentive

to violate; facilities whose violations cause injuries or the risk

of injuries. It appears that the Act is being abused by facilities

that perform audits not to discover unknown violations, but to

gain immunity for violations they for which they are already

aware. PC commented that the rules should clearly state that

the self reported notices of violation pursuant to the Act must be

included with deviation reports.

Response

The commission disagrees with the commenters and believes

its rules protect air quality and public health. Grandfathered facilities are exempt only from the requirement to obtain a preconstruction permit. They are not exempt from the emission

rates and other restrictions on emissions of air contaminants

contained in the commission’s rules and state implementation

plans. The commission does not currently have the authority to

require grandfathered facilities to obtain a state NSR permit. The

commission does not intend to grant permit shields for NSR requirements.

The commission recognizes that upsets at industrial facilities can

cause the release of significant amounts of air contaminants over

restrictions in permits or rules. The commission also recognizes

that upsets occur despite the exercise of good operating practices by a facility owner or operator. The commission believes a

procedure should exist for exempting upset emissions from enforcement provided that procedure requires that the owner or operator demonstrate that the upset was unavoidable and that he

or she took prompt corrective action. The commission’s rules

provide this procedure and require that the event not be the result of improper design, maintenance, or operation. The commission also requires that logs of corrective action be kept and

that upsets not be part of a recurring pattern in order to qualify

for an exemption from enforcement. The commission has previously explained how the criteria it uses to exempt upsets from

enforcement is equivalent to the procedures identified in Part 70.

The Audit Privilege Act (the Act) provides incentives for facility

owners or operators to conduct a self audit. The intent of the audit is to identify emission units and other facility operations that

are in violation of permits, laws, and commission rules. Disclosure under the Act only provides immunity from penalties if all of

the statutory requirements are met, not immunity from enforcement, up to and including injunctive relief if necessary. The Act

specifically excludes immunity for violations that result in injury

or imminent and substantial risk of injury, violations that result

in substantial economic benefit to the entity, and repeated violations that constitute a pattern of disregard of environmental laws.

Additionally, immunity is conditioned upon correction of all violations. Failure to complete corrective action in accordance with

a compliance schedule would be grounds for another enforcement action that would carry penalties. All disclosures of violations, notices of violations, and commission orders are part of a

company’s compliance record regardless of how the violations

were disclosed. The Act does not limit an investigator’s ability to

inspect a facility. Pursuant to the Act, all documents, data, and

reports required by the commission to be collected, developed,

maintained, or reported under a federal or state law are not privileged. The commission believes this Act provides an incentive

for owners and operators to identify and correct violations more

quickly than would otherwise occur. Violations disclosed under

the Act are deviations. Section 122.145(2)(A) requires all deviations to be reported.

In the June 25, 1996 EPA notice, the EPA commented that the

commission would have to demonstrate that the passage of

Texas HB 2473 (1995), the Texas Environmental, Health and

Safety Audit Privilege Act does not limit the commission’s ability

to adequately administer and enforce the federal operating

permit program.

EPA and the commission negotiated a set of technical amendments to the Act with the purpose of removing any barriers to

state assumption of federal programs. The 75th Texas Legislature enacted Texas HB 3459 (1997) to adopt the amendments

agreed upon without any other significant changes in the law.

The amendments to the Act have been in effect since September 1, 1997, and the commission implements the Act consistent

with the intent of the legislation and the agreement with EPA.

EPA has agreed to conclude that the commission retains adequate authority to enforce the requirements of any authorized or

delegated program.

Comment

PC commented that the operating permit program should provide members of certain environmental groups with access to

monitoring and reporting data and enable them to be active participants in ensuring that facilities in Texas comply with air pollution requirements.

Response

Monitoring and reporting data is supplied to the commission and

is a public record. Any member of the public can request to review that data.

Comment

ADOPTED RULES May 25, 2001 26 TexReg 3789
NFN, while commenting on the operating permit program, also

expressed specific concerns with ALCOA. Similarly, QLEP expressed concerns with Jobe Concrete and encouraged the commission to amend the Title V rules to protect and give equal protection to breathe clean air to all neighborhoods.

Response

The ALCOA and Jobe Concrete permit applications will be processed under the commission’s adopted rules. However, the

specific compliance status of any site is independent of this rulemaking and, therefore, will not be discussed here.

Comment

Sierra commented that the proposed rules do not consider Title

VI of the 1964 Civil Rights Act and the environmental justice implications of that statute. Although the EPA did not require anything in the state rules for Title V, Sierra requests the commission

to consider the incorporation of environmental justice concerns

into Chapter 122. The fact that there may be circumstances with

chronic violators raises issues of violation of Title VI of the 1964

Civil Rights Act because the commission is a recipient of federal funding and, therefore, it is required by federal law in its own

rules and regulations to comply with Title VI. Sierra thinks that a

lot of the staff people are very aware of the fact that Texas has a

lot of communities of color. Not all live on the fence lines of big

industrials sources, but Title VI does raise this concern about

disproportionate impacts, cumulative impacts, and that operating permits provide an opportunity for these kinds of issues to

be addressed because, otherwise, it would be inconsistent and

a violation of Title VI of the 1964 Civil Rights Act. There are also

a number of outstanding Title VI administrative civil rights complaints that are pending and involve allegations that the agency

has not fully complied with Title VI. Therefore, Title V of the FOP

program does offer an opportunity for the agency to do the right

thing.

Response

The commission does not believe the rule needs to be changed

to incorporate Title VI issues in response to this comment but

wishes to clarify how it addresses complaints under Title VI of

the 1964 Civil Rights Act. It is important to note that all Title

VI complaints challenging the issuance of a permit are formally

filed with and investigated by the EPA. In addition, any person

may submit comments regarding Title VI issues on any operating

permit application during the public comment period.

Any violation of an applicable requirement contained in an operating permit is grounds for enforcement action, regardless of

whether or not there is a violation under Title VI of the 1964 Civil

Rights Act. The commission’s rules require compliance by the

regulated facilities without regard to the ethnic makeup of the

community. The commission believes its rules protect air quality

and public health.

The FOP program will incorporate all applicable requirements for

federal sources into one permit so that the permit holder is aware

of all regulations that govern the operation of a site. FOPs are

issued based on the accuracy and completeness of the application and whether the application ensures compliance with all

applicable requirements. The commission implements these requirements through Chapter 122. FCAA, Title V requires permits

to assure compliance with all applicable requirements and does

not provide for the denial of a permit based on a complaint under

the 1964 Civil Rights Act, Title VI.

Nonetheless, all environmental justice issues (including Title VI

complaints) are addressed by the Environmental Equity Program

within the Office of Public Assistance (OPA). The goals of the

Environmental Equity Program are to thoroughly consider all citizens’ concerns and handle them fairly. This is accomplished by

seeking to: 1.) determine the nature of the problem or concern;

2.) identify the principal parties affected; 3.) provide opportunities for input by all interested parties; 4.) develop a plan of

intervention or mediation; 5.) establish effective communication

among all parties; 6.) educate affected parties about all sides

of the issue; and 7.) negotiate or mediate mutually acceptable

solutions. The commission believes that addressing problems in

the early stages can keep the issue from escalating into more

confrontational situations such as class action lawsuits or Title

VI complaints. The commission further believes early intervention promotes a spirit of cooperation and often saves everyone

money and time.

Comment

TCE submitted a report on the TNRCC citizen complaint

process, completed by Public Research Works, and made

the following comments. The citizen complaint process is

seriously flawed and changes can be incorporated into the

operating permit program. Citizens have difficulty in finding

out to whom complaints should be submitted. In 1999, the

legislature required the commission to have a toll-free number,

but it is not listed on the homepage or citizen page of the

TNRCC website. It was pointed out to the agency in August,

2000, and it still has not changed, indicating that it was not just

an oversight. Citizens, unlike facilities that get investigated,

do not get adequate information about the complaint process.

Most people (75%) do not get a written response from the

commission as to what happened with their complaints. This is

true for written complaints as well, which are required by law to

receive a written response.

Response

The report referenced by the commenter does not relate directly

to this rulemaking but has been sent to the appropriate internal

division of the commission. The commission did establish

a toll-free number to register complaints as required by the

legislature and made it available on commission’s website at

www.tnrcc.state.tx.us/enforcement/complaints.html.

Comment

TCE commented that the commission is required to keep a

record of all complaints that it receives, however numerous

examples have been found where the commission did not record

complaints. TCE stated that this occurred when over 3,000

signed affidavits that were submitted to the Odessa regional

office were never recorded in the database, falsely showing

that the number of complaints in the state is declining. Also,

in Harlingen, citizens were actually being dissuaded from filing

complaints. Staff first accused them of being fellow community

members instigating calls, then explained that further complaints would just slow the process down. When three nuisance

violations for a similar problem within five years yields automatic

enforcement action, it is critical that citizen’s complaints not

only be recorded, but be investigated promptly so that problems

can be dealt with through automatic enforcement actions. They

were told by the commission and other air pollution officials that,

in many cases, the only way the agency learns of air pollution

problems may be from citizen complaints. The agency also

does not investigate complaints promptly, has an unfair rating

26 TexReg 3790 May 25, 2001 Texas Register
'" 

., 

syst8m to address complaints, :a'nd some complaints were not 

given the correct rating or were not an ·accurate indicator of 

problems. 1

This ranking systeni should be done away with and 

the c~mmission should just go out and investigate complaints 

as quickly as t~ey ,co11.1e. in like t?t~e~ agencies do. 

Response 

The commission·sets a priority on complaints so that the most 

potentially serious are- addressed first, . but all complaints are 

recorded and ipvestigated in accordarJce with commission procedures. . 1

, • 

These proCedures are not addressed through this rulemaking. 

Comment "'·' 

TCE commen.ted that exam~ies' ::.Were found where cle~r violations of air pollutiori laws were nOt given violatiOns and made the 

following comments .. Fa~ilities operating without a permit tOr. Up 

to a year still conti,nue to op~i"ate. ·They·stated that an investigator, rn response to a c~mplamt, left a citizen's property noticing 

no odor because th_e wrnd had shifted. The inspector then went 

to the facility and had to leave beca'use the odor was so strong, 

but. the complaint ~as written up as no violations occurred. They 

behave the commrssion must·change its policies so that an investigator's experience of noxious odors is enough to write violations, and that if the wind has shifted, every effort is made to 

have a complainant go to. the place where the wind has shifted 

so that violations can be noted, that it does not necessarily have 

to continue to be on their property. TCE also commented that 

investigations·are flawed because they do· not occur 24 hours 

a daY. seven .. days· a week; as· the controller ·recommended in 

t 990. TCE speCifically noted photographs and videos of parents 

in Lakeway trying to protect their children from being sprayed 

wrth sewage were rgnored by the commission's staff. Further 

they stated the corl}mission's. staff would· not nieet with the par: 

ents until a governor's staffer was ccintacte'd and got invOlved to 

schedule the meeting. · .. ·. · · · '· .. 

Response. \ .~:: '·.~ . _ 

The report and individual drcUrTistances referenced by the commanter ·are issues that are addressed through the inteinal policies of the commission and are not addreSsed in this rulemaking. The report. will be made available to the Field Operations 

Division to deternline if any cha'nges to-policy and procedures 

are needed. · · 

Comment 

SEED Coalition supported com men~ submitted ~Y the EEP, PC, 

Srerra, TCE, and NFN and ~dded concerns from a citizen activist 

perspective. No one knows.aboutoperating permits; they don't 

know what they are, and they've never heard of them. This contr~·st~ with industri~s that are rapidly·submitting operating permit 

applications before citizens ~an eVen find out about the process 

itself. · • 1 · 

Response ·; 

The commission does nOt change the rule ifl reSP.onse to these 

comments. Interested groups can contact the comrTiission or 

the EPA concerning participation cind outrSach prOgrams: The 

commission cu~rently provi~es outreach through its website and, 

_ i,n response ·to this commEmt,''int8i1dS to deVelop and publish a 

basic overview of the operating ·permit proQram, along with a diagram that identifies the opportunities for public participatiOn in· 

the operating permit process. The commission also notes that 

.its Office of Public Assistance website currently contains contact 

inforn:ation for in~i~iduals who seek information ~bout agency 

per.":lrts, the permJ.tting pr~cess, and public participation opportumtres. Publtc notrce requrrements for operating permits exceed 

~art 7? notice requirements. For example, operating permit pub-

~rc notice re.quires.a sign posting and bilingual public notice which 

IS not required by Part 70. · 

UBCHAPTER A. DEFINITIONS 

The endment is adopted under THSC, TCAA, §§382.015 -

382.0 , which provide for power to enter property· monitoring 

require ents; examination of records; and the auth~rity to adopt 

rules co sistent with the policy and purposes of the TCAA; 

§382.021 nd §382.022, which provide for sampling methods 

and _pr<;~ce res; and investigations; §382.032, which provides 

for appeal. f commission actions; §382.040 and §382.041, 

whrch provrd for public records and submission of confidential 

information;§ 82.051, which provides the commission authority 

to issue ~OPs and adopt rules as necessary to comply with · 

changes rn fed al law or regulations applicabl~ to permits; 

§§382.0513- 38 0515 and 382.0517, which provide the commiss!on authority t establish and enforce permit conditions; to 

requrre ~~mpling, nitoring, and certification; to require permit 

appl~cat~ons; and to etermine, administrative cOmpleteness of 

applications; §§382. 4- 382.0543,-which provide" for FOPs; 

admrmstratron and en cement of FOPs; issuance of FOPs and 

ap~eal of delays; and r iewand renewals of FO~s; §382.056, 

whrch provrdes.for notJc of rntent to. obtain a permit or permit 

review and provides for p mit hearings for FOPs; §§382.0561 

- 382.0564, which provide or FOP public.hearings; notices of 

de~ision for FOPs; public tition of FOPs to the administrator; and notificatiOn to othe governmental 8ntities for FOPs; 

§382.061, which provides for elegation of powers and duties 

under §§382.051- 382.0563 an· 382.059, appeals of executive 

director decisions and petitions nder §382.0563 and appeals 

under §382.056; and under C, including §5. 103, which 

provide~ the commission authori to adopt rules ConsiStent 

with the policy and purposes of the CAA and other laws of this 

state; §5.1 05, which provides the c mission authority to establish ~nd approve commissiori pOHc · §5. 122, whiCh provides 

delegation of uncontested matters to the executive director: 

§5.351, which provides for judicial revi of commission acts; 

§5.355, which provides for appeal of d1 trict court judgment; 

and §§7.001 - 7.358, which provide for en rcement 

§122.10. General DefinitiOns. 

The definitions in the Texas Clean Air Act, Cha er 101 of this title 

(relating to General Air Quality Rules), and Chapte 3 of this title (relating to Definitions) apply to this chapter. In !idditt n, the following 

word~ and terms, when used in this chapter,.shall ha the following 

m.ea~ungs, unless the context cl~~rly indicates otherwis . · 

• (1) Air pollutant':'-Any,of.the following regul~ ed air pollutants: 

(A) nitrogen oxides; 

(B) volatile organic compounds;~ 

(C) any pollutant for which a National· Ambie t Air 

Quality S~dard (NAAQS) has been Promulgated; 

· (D) ·any pollutant that is subject to any ·standard pro lgated under FCAA, §Ill (Standards of Performance for New Statio ~ 

ary Sources); 

ADOPTED RULES May 25, 2001 26 TexReg 3791 
§122.210. General Requirements for Revisions.

(a) The permit holder shall submit an application to the executive director for a revision to a permit for those activities at a site which

change, add, or remove one or more permit terms or conditions.

(b) The executive director shall make a copy of the permit application, the permit, and any required notices accessible to the EPA.

(c) Provisional terms and conditions are not eligible for a permit shield.

(d) The permit holder may be subject to enforcement action if

the change to the permit is later determined not to qualify for the type

of permit revision submitted.

(e) Changes qualifying as administrative permit revisions may

be processed as minor or significant permit revisions at the permit

holder’s discretion.

(f) Changes qualifying as minor permit revisions may be processed as significant permit revisions at the permit holder’s discretion.

(g) General operating permits and authorizations to operate

under general operating permits are not subject to the permit revision

requirements of this subchapter, but instead are subject to the requirements of Subchapter F of this chapter (relating to General Operating

Permits).

§122.211. Administrative Permit Revisions.

A change to a permit may qualify as an administrative permit revision

if the change satisfies one or more of the following:

(1) corrects typographical errors;

(2) identifies a change in the name, address, or phone number of any person identified in the permit, or provides a similar administrative change at the site;

(3) increases the frequency of monitoring or reporting requirements without changing any existing emission limitations or standards;

(4) changes the permit identification of ownership or operational control of a site where the executive director determines that no

other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility,

coverage, and liability between the old and new permit holder is maintained with the permit;

(5) incorporates the requirements from preconstruction authorizations under an EPA-approved program, provided that such a program meets procedural requirements substantially equivalent to those

of Subchapters C and D of this chapter that would be applicable to the

change if it were subject to review as a permit revision, and compliance

requirements substantially equivalent to those contained in §§122.143,

122.145, and 122.146 of this title (relating to General Terms and Conditions, Reporting Terms and Conditions, and Compliance Certification

Terms and Conditions, respectively);

(6) affects or adds a state-only requirement; or

(7) is similar to those in paragraphs (1) - (6) of this section

and approved by EPA.

§122.213. Procedures for Administrative Permit Revisions.

(a) If the following requirements are met, changes at a site

listed in §122.211 of this title (relating to Administrative Permit Revisions) requiring an administrative permit revision may be operated

before issuance of the revision:

(1) the permit holder records the information required in

§122.212 of this title (relating to Applications for Administrative Permit Revisions) before the change is operated; and

(2) the permit holder maintains the information required by

§122.212 of this title with the permit until the permit is revised.

(b) In every case, the applicable requirements and state-only

requirements are always enforceable.

(c) The permit holder need not comply with the original terms

and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or

renewal.

(d) The permit holder shall submit an application for an administrative permit revision to the executive director no later than 30

days after each permit anniversary.

(e) An administrative permit revision may be issued by the executive director provided the following:

(1) the change meets the criteria for an administrative permit revision;

(2) the executive director has received an application; and

(3) the conditions of the permit provide for compliance

with the requirements of this chapter.

(f) The executive director shall take final action on an administrative permit revision no later than 60 days after receipt of the application.

§122.215. Minor Permit Revisions.

Minor permit revisions include any change that satisfies the following:

(1) does not violate any applicable requirement;

(2) does not involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit;

(3) does not require or change a case-by-case determination of an emission limitation or other standard, or a source-specific

determination for temporary sources of ambient impacts, or a visibility

or increment analysis;

(4) does not seek to establish or change a permit term or

condition for which there is no corresponding underlying applicable

requirement and that the source has assumed to avoid an applicable

requirement to which the source would otherwise be subject. Such

terms and conditions include:

(A) a federally enforceable emissions cap assumed to

avoid classification as a modification under any provision of the FCAA,

Title I; and

(B) an alternative emissions limit approved pursuant to

regulations promulgated under the FCAA, §112(i)(5); and

(5) is not a modification under any provision of FCAA, Title I.

§122.216. Applications for Minor Permit Revisions.

An application for a minor permit revision must include, at a minimum,

the following:

(1) a description of each change;

(2) a description of the emission units affected;

(3) the provisional terms and conditions as defined in

§122.10 of this title (relating to General Definitions) that codify the

new applicable requirements;

ADOPTED RULES May 25, 2001 26 TexReg 3801
(4) a statement that the change qualifies for a minor permit

revision;

(5) a certification in accordance with §122.165 of this title

(relating to Certification by a Responsible Official); and

(6) the emissions resulting from the change.

§122.217. Procedures for Minor Permit Revisions.

(a) If the following requirements are met, changes at a site requiring a minor permit revision may be operated before issuance of the

revision:

(1) the permit holder complies with the following:

(A) all applicable requirements governing the change;

(B) all state-only requirements governing the change;

and

(C) the provisional terms and conditions as defined in

§122.10 of this title (relating to General Definitions) governing the

change;

(2) the permit holder submits to the executive director an

application containing the information required in §122.216 of this title

(relating to Applications for Minor Permit Revisions) before the change

is operated;

(3) the permit holder maintains the information required by

§122.216 of this title with the permit until the permit is revised.

(b) For changes to a permit required as the result of the revision of a compliance assurance monitoring general operating permit or

periodic monitoring general operating permit, the following requirements apply.

(1) The permit holder shall comply with the following:

(A) all applicable requirements governing the change;

(B) all state-only requirements governing the change;

and

(C) the provisional terms and conditions as defined in

§122.10 of this title governing the change.

(2) The information in §122.216(1) - (5) of this title shall

be submitted no later than the compliance date of the new requirement

or effective date of the repealed requirement, whichever is applicable.

(3) The permit holder shall maintain the information required in §122.216 (1) - (4) of this title with the permit until the permit

revision is final.

(c) In every case, the applicable requirements are always enforceable.

(d) The permit holder need not comply with the original terms

and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or

renewal.

(e) The executive director shall notify the EPA administrator

and affected state(s) of the requested permit modification within five

working days of receipt of a complete minor revision permit application.

(f) A minor permit revision may be issued by the executive

director provided the following:

(1) the changes meet the criteria for a minor permit revision;

(2) the executive director has received a complete application;

(3) the conditions of the permit provide for compliance

with the requirements of this chapter; and

(4) the requirements of this chapter for public announcement, affected state review, and EPA review have been satisfied.

(g) The executive director shall take final action on the permit

revision application no later than 90 days after receipt of an application,

or 15 days after the end of the EPA review period, whichever is later.

§122.218. Minor Permit Revision Procedures for Permit Revisions

Involving the Use of Economic Incentives, Marketable Permits, and

Emissions Trading.

Notwithstanding §122.215 of this title (relating to Minor Permit Revisions), minor permit revision procedures may be used for permit

revisions involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that

such minor permit revision procedures are explicitly provided for in the

Texas state implementation plan or in applicable requirements promulgated by the EPA.

§122.219. Significant Permit Revisions.

(a) Significant revision procedures shall be used for changes

to the permit at a site that do not qualify as administrative or minor

revisions.

(b) At a minimum, every significant change in existing monitoring permit terms or conditions and every relaxation of reporting or

recordkeeping permit terms or conditions shall be considered a significant permit revision.

(c) A change to a permit shield or a new permit shield is a

significant revision.

§122.222. Operational Flexibility and Off-Permit Changes.

(a) An owner or operator may make changes at a permitted

site without applying for or obtaining a permit revision provided that

the following conditions are met:

(1) the changes are not modifications under FCAA, Title I;

(2) the changes are allowed under FCAA, §502(b)(10);

(3) the changes do not exceed the emissions limitation under the permit; and

(4) the owner or operator has obtained any applicable preconstruction authorization. Such preconstruction authorization cannot

be a modification under FCAA, Title I.

(b) When an owner or operator removes a unit from the site,

the unit and its applicable requirements and any other associated permit terms and conditions may be removed from the permit when this

removal does not result in changes to applicable requirements or permit

terms and conditions for remaining units.

(c) The owner or operator shall provide the EPA and the executive director written notification for changes to the permit which

qualify under this section. The written notification shall be submitted

to the executive director and the EPA administrator at least seven days

in advance of the proposed changes, except for an emergency. Notice

may be provided within two working days of implementation of operational flexibility changes due to an emergency. Such notice shall also

include an explanation of the emergency.

(d) For those cases where the permit does not already provide

for emissions trading, an owner or operator may trade increases and

26 TexReg 3802 May 25, 2001 Texas Register