RobertJ. Huston, 

### Chairman R. B. "Ralph" Marquez, 

### Commissioner Kathleen HartnettWhite, 

### Commissioner JeffreyA Saitas, 

### ExecutiveDirector

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## IR PLANNING SEC. 02 AUG -1 AM 9: 23 

## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Protecting Texas by

### ReducingandPreventingPollution 

### July 

### 31, 2002 Mr. Gregg Cooke Regional Administrator U.S. Environmental ProtectionAgency, Region 6 1445 Ross Avenue Dallas, Texas 

### 75202-2733 DearMr. Cooke:**r-...~** ::t> =.:: 

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### OnMay 

### 22,2002, the Texas Natural Resource Conservation Commission (Commission) adopted revisions to the State Implementation Plan (SIP). The Commission adopted new and amended sections to Chapter 

### 39, Public Notice; and new and amended sections to Chapter 

### 116, Control ofAir Pollutionby Permits for New Construction or -Modification. The adopted changes to Chapter 

### 39 and Chapter 116 concern requirements and . procedures for the permitting ofgrandfathered facilities and an incentive programfor the reduction of emissions ofnitrogen oxides from**~ertain** 

### grandfatheredreciprocating interrial combustion engines associated withpipelines. The new and amended sections ofChapter 

### 39; all sections ofChapter 

### 116, SubchapterH except §116.776; and the new and amended sections ofChapter 116, Subchapters A and I are being submitted as a revision to the SIP. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearing, andthe accompanying order. I lookforward to your expeditious approval ofthese SIP revisions. ly,

Chairman 

### RJH/js cc: The Honorable Rick Perry, Governor ofTexas Ms. Wendy Wyman, Environmental and Natural Resources Policy Director, Office ofthe Governor ' Mr. Jeffrey A. Saitas, P.E., Executive Director, Texas Natural Resource Conservation Commission Enclosures

-

# . P.O. Box 13087 • Austin, Texas 78711-3087 • 5121239-1000 • Internetaddress: www.tnrcc.state.tx.us prinkJ un**r~·cyd~J** p<lper lIsing soy-bJ:.eJ ink

### Mr. Gregg Cooke Page 2 bee: Mr. RandolphWood, Deputy Director, Office of Environmental Policy, Analysis, and Assessment Mr. 

### JimMuse, Director, Policy and Regulations Division Ms. HeatherEvans, Strategic Assessment Division Ms. Jill Burditt, Policy and Regulations Division OEPAA fileTexas Natural Resource Conservation Commission Public Hearings January 22-24, 28, 29, 2002 Concerning revisions to 30 TAC Chapter 116, Subchapters A, H, and I, Control ofAir Pollution by Permits for New Construction or Modification; and Chapter 39, Subchapter H and Subchapter K, concerning Public Notice; and a revision to the state implementation plan Rule Log Number2001-076-116-AIINTRODUCTION The Texas Natural Resource Conservation Commission (commission) held public hearings to receive testimony regarding revisions to 30TAC Chapter39 and Chapter 116, and tothestate implementation plan (SIP). The public hearings were held at the following times and locations: January 22, 2002, 7:00 p.m., TylerJuniorCollege Regional Training and DevelopmentCenter, Room 104, 1530 South Southwest Loop 323, Tyler; January 23, 2002, 7:00 p.m., City of Houston, City Council Chambers, 2nd Floor, 901 Bagby, Houston; January 24, 2002, 7:00 p.m., City of Odessa, City Council Chambers; 5th Floor, 411 West 8th Street, Odessa; January 28, 2002, 6:30 p.m., City of Irving, Central Library Auditorium, 801 West Irving·· Boulevard, Irving; and January 29, 2002, 2:00 p.m., Texas Natural Resource Conservation Commission, 12100 North 1-35, Building F, Room 2210, Austin.

This volume concerns new and amended sections to Chapter 39, Public Notice; and new and amended sections to Chapter 116, Control of Air Pollution by Permits for New Construction or Modification. The adopted changes toChapter39 and Chapter 116concern requirements and proceduresforthe permitting. ofgrandfathered facilities and an incentive program forthe reduction ofemissions of nitrogen oxides from certain grandfathered reciprocating internal combustion engines associated with pipelines. The new and amended sectionsofChapter39are being submittedtothe United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). All sections ofSubchapter H except §116.776, are being submitted to the EPAas a revision to the SIP. The new and amended sections of SubchapterA and I are also being submitted to the EPA as a revision to the SIP.

Written comments were accepted through January 29, 2002. All testimony and comments have been reviewed and seriously considered. This hearing record contains acomplete record ofthe public hearings and is divided into the following foursections:o Public Notification and Proposal o Written and Oral Testimony o Evaluation ofTestimony o Staff Recommendations

Additional copies ofthis hearing record are maintained in theTNRCC central officeat 12100 Park35 Circle, Austin, Texas 78753. Forfurther information, please contact 

### Jill Burditt at (512) 239-0560.

# STAFF RECOMMENDATIONS

### CHAPTER 39: PUBLIC NOTICE SUBCHAPTER H: APPLICABILITYAND GENERAL PROVISIONS §§39.404, 39.411, 39.419, 39.420 §39.404. Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities. (a) Notwithstanding §39.403(a)(1) ofthis title (relating to Applicability), Subchapters H - M ofthis chapter also apply to: (1) applications for permits for electric generating facilities underTexas Health and Safety Code, §382.05185(c) and (d); (2) applications for existing facility permits underTexas Health and Safety Code, §382.05183; and (3) applications for pipeline facilities permits underTexas Health and Safety Code, §382.05186. (b) Applications for initial issuance of permits underTexas Health and Safety Code, §§382.05183, 382.05185(c) and (d), and 382.05186 are subject only to §39.401 ofthis title (relating to Purpose), §39.405 ofthis title (relating to General Notice.Provisions), §39.407 ofthis title (relating to Mailing Lists), §39.409 ofthis title (relating to Deadline for Public Comment, and for Requests for Reconsideration, Contested Case Hearing, or Notice and Comment Hearing), §39.411 ofthis title, §39.418 ofthis title (relating to Notice of Receipt ofApplication and Intentto Obtain Permit), §39.420 of this title (relating to Transmittal ofthe Executive Director's Response to Comments and Decision), §39.601 ofthis title (relating to Applicability), §39.602 ofthis title (relating to Mailed Notice), §39.603 of 

### 1this title (relating to Newspaper Notice), §39.604 ofthis 

### title (relating to Sign-Posting), §39.605 ofthis title (relating to Notice to Affected Agencies), and §39.606 ofthis title (relating to Alternative Means of Notice forVoluntary Emission Reduction Permits), except that any reference to requests for reconsideration or contested case hearings in §39.409 ofthis title or §39.411 ofthis title shall not apply. §39.411. Text of 

### Public Notice. (a) Applicants shall use notice text provided and approved by the agency. The executive director may approve changes to notice text before notice being given. (b) When notice of receipt ofapplication and intentto obtain permit by publication or by mail is required by Subchapters H - L ofthis chapter (relating to Applicability and General Provisions, Public Notice of Solid Waste Applications, Public Notice ofWater Quality Applications and Water Quality Management Plans, Public Notice ofAir Quality Applications, and Public Not,ice .of Injection Well and Other SpecificApplications), Subchapter G ofthis chapter (relating to Public Notice forApplications for Consolidated Permits), orfor Subchapter M ofthis chapter (relating to Mailed Notice for Radioactive Material Licenses), the text ofthe notice must include the following information: (1) the name and address ofthe agency and the telephone numberofan agency contact from whom interested persons may obtain further information; (2) the name, address, and telephone numberofthe applicant and a description ofthe manner in which a person may contact the applicant forfurther information; (3) a briefdescription ofthe location and nature ofthe proposed activity; (4) a briefdescription ofpublic comment procedures, including: 

### 2(A) a statementthatthe executive directorwill respond to comments raising issues that are relevantand material or otherwise significant; and (8) a statement in the notice for any permitapplication forwhich there is an opportunity for a contested case hearing, that only disputed factual issues that are relevant and material to the commissions's decision that are raised during the comment period can be considered ifa contested case hearing is granted. (5) a briefdescription of procedures by which the public may participate in the final permit decision and, ifapplicable, howto request a public meeting, contested case hearing, reconsideration ofthe executive director's decision, a notice and comment hearing, or a statement that later notice will describe procedures for public participation, printed in a font style orsize that clearly provides emphasis and distinguishes itfrom the remainder ofthe notice. The notice should include a statement that a public meeting,will be held by the executive director if requested by a memberofthe legislature who represents the general area where the facilityis to be located orthere is substantial public interest in the proposed activity; (6) the application or permit number; (7) ifapplicable, a statement thatthe application or requested action is sUbjectto the Coastal Management Program and must be consistentwith the Coastal Management Program goals and policies; (8) the location, at a public place in the county in which the facility is located or proposed to be located, atwhich a copy ofthe application is available for review and copying;



### 3(9) a description ofthe procedure by which a person may be placed on a mailing list in orderto receive additional information aboutthe application; (10) for notices ofairapplications: (A) at a minimum, a listing ofcriteria pollutants forwhich authorization is sought in the application which are regulated under national ambient air quality standards (NAAQS) or under state standards in Chapters 111, 112, 113, 115, and 117 ofthis title (relating to Control ofAir Pollution from Visible Emissions and Particulate Matter, Control ofAir Pollution from Sulfur Compounds, Control ofAir Pollution from Toxic Materials, Control ofAir Pollution from Volatile Organic Compounds, and Control ofAir Pollution from Nitrogen Compounds); (8) if notice is for applications described in §39.403(b)(11) or (12) ofthis title (relating to Applicability), or

### §39A04ofthis title (relating to Applicability for Certain Initial Applications for Air Quality Permits for Grandfathered Facilities), a statement that any person is entitled to request a notice and comment hearing from the commission. If notice is for any otherairapplication the following information which must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder ofthe notice: 

### (i) a statement that a person who may be affected by emissions of air contaminants from the facility or proposed facility is entitled to request a contested case hearing from the commission; (ii) a statementthat a contested case hearing request must include the requester's location relative to the proposed facility oractivity;



### 4(iii) a statementthat a contested case hearing request should include a description of how the requestorwill be adversely affected by the proposed facility or activity in a manner not common to the general public, including a description ofthe requestor's uses of property which may be impacted by the proposed facility oractivity; and (iv) and that only relevant and material issues raised during the comment period can be considered ifa contested case hearing request is granted; and (C) notification that a person residing within 440 yards of a concrete batch plant under an exemption from permitting or permit by rule adopted by the commission is an affected person who is entitled to request a contested case hearing; (D) the statement: "The facility's compliance file, ifany exists, is available for public review in the regional office ofthe Texas t;latural Resource Conservation Commission;" and (11) for notices of municipal solid waste applications, a statement that a person who may be affected by the facility or proposed facility is entitled to request a contested case hearing from the commission. This statement must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder ofthe notice; and (12) any additional information required by the executive director or needed to satisfy public notice requirements of any federally authorized program; or (13) for radioactive material licenses under Chapter 336 ofthis title (relating to Radioactive Substance Rules), ifapplicable, a statementthat a written environmental analysis on the application has been prepared by the executive director, is available to the public for review, and that written comments may be submitted. 5(14) for Class 3 modifications of hazardous industrial solid waste permits the statement "The permittees compliance history during the life ofthe permit being modified is available from the agency contact person." (c) Unless mailed notice is otherwise provided for underthis section, the chiefclerk shall mail Notice ofApplication and Preliminary Decision to those listed in §39.413 ofthis title (relating to Mailed Notice). When notice ofapplication and preliminary decision by publication or by mail is required by Subchapters G-L ofthis chapter, the text ofthe notice must include the following information: (1) the information reqUired by subsection (b)(1) - (12) ofthis section; (2) a briefdescription of public comment procedures, including a description ofthe manner in which comments regarding the executive directors preliminary decision may be submitted, or

.. a sta.tement in the notice forany permit application forwhich there is an opportunity for contestedcase

hearing, that only relevant and material issues raised during the comment period can be considered if

# a contested case hearing is granted. The public comment procedures must be printed in a font style or size that clearly provides emphasis and distinguishes itfrom the remainder ofthe notice; (3) ifthe application is subject to final approval by the executive director underChapter 50 ofthis title (relating to Action on Applications), a statementthat the executive director may issue final approval ofthe application unless a timely contested case hearing request or a timely request for reconsideration (if applicable) is filed with the chiefclerk aftertransmittal ofthe executive director's decision and response to public comment; (4) a summary ofthe executive director's preliminary decision and whetherthe executive director has prepared a draft permit; and



### 6

### (5) the location, at a public place in the county in which the facility is located or proposed to be located, atwhich a copy ofthe complete application and the executive director's preliminary decision are available for review and copying; (6) the deadline to file comments or request a public meeting. The notice should include a statementthat a public meeting will be held by the executive director if requested by a member ofthe legislature who represents the general area where the facility is to be located orthere is substantial public interest in the proposed activity; (7) for radioactive material licenses under Chapter336 ofthis title (relating to Radioactive Substance Rules), ifapplicable, a statementthat awritten environmental analysis on the application has been prepared by the executive director, is available to the pUblic for review, and that written comments may be submitted. (d) When notice ofa public meeting or notice ofa hearing by publication or by mail is required by SUbchapters G - L ofthis chapter, the text ofthe notice must include the following information: (1) the information required by subsection (b)(1) - (3), (6) - (8), and (12) ofthis section; (2) the date, time, and place ofthe meeting or hearing, and a briefdescription ofthe nature and purpose ofthe meeting or hearing, including the applicable rules and procedures; (3) for notices of public meetings only. a briefdescription of public comment procedures, including a description ofthe manner in which comments regarding the executive director's preliminary decision may be submitted and a statement in the notice for any permit application forwhich there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment period can be considered ifa contested case hearing is granted. 

### 7

### §39.419. Notice ofApplication and Preliminary Decision. (a) Aftertechnical review is complete, the executive directorshall file the preliminary decision and the draft permitwith the chiefclerk, except forairapplications undersubsection (e){1) ofthis section. The chiefclerk shall mail the preliminary decision concurrently with the Notice ofApplication and Preliminary Decision. Then, when this chapter requires notice underthis section, notice shall be given as required by subsections (b) - (e) ofthis section. (b) The applicant shall publish Notice ofApplication and Preliminary Decision at least once in the same newspaperas the Notice of Receipt ofApplication and Intentto Obtain Permit, unless there are different requirements in this section or a specific subchapter in this chapterfor a particulartype of permit. (c) Unless mailed

## n~tice is otherwise provided underthis section, the chiefclerk shall mail Notice ofApplication and Preliminary Decision to those listed in §39.413 ofthis title (relating to Mailed Notice). (d) The notice must include the information required by §39.411 (c) ofthis title. (e) For air applications: (1) the applicant is not required to publish Notice ofApplication and Preliminary Decision, if: (A) no hearing request is submitted in response to the Notice of Receipt of Application and Intentto Obtain Permit; 

### 8(8) a hearing request is submitted in response to the Notice of Receipt of Application and Intentto Obtain Permit and the request is withdrawn before the date the preliminary decision is issued; (C) the application is forany amendment, modification, or renewal application thatwould not result in an increase in allowable emissions and would not result in the emission ofan air contaminant not previously emitted unless the application involves a facility forwhich the applicant's compliance history contains violations which are unresolved and which constitute a recurring pattern of egregious conductwhich demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correctthe violations; or (D) the application is for initial issuance ofa permit described in §39.403(b)(11) or (12) ofthis title (related to Applicability) or §39.404 ofthis title (relating toApplicability for Certain Initial Applications forAir Quality Permits for Grandfathered Facilities); (2) If notice underthis section is required, the agency shall mail notice according to §39.602 ofthis title (relating to Mailed Notice); and (3) Notice ofApplication and Preliminary Decision shall be published as specified in SUbchapter K ofthis chapter (relating to Public Notification ofAir Quality Applications) for permits that are not exempt under paragraph (1)(A) - (D) ofthis subsection or are for the following federal preconstruction approvals: (A) applications underChapter 116, Subchapter 8, Division 5 ofthis title (relating to Nonattainment Review);



### 9(8) applications underChapter 116, Subchapter 8, Division 6 ofthis title (relating to Prevention ofSignificant Deterioration Review); and (C) applications under Chapter 116, SUbchapterC of 

### this title (relating to HazardousAir Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)). §39.420. Transmittal ofthe Executive Director's Response to Comments and Decision. (a) When required by and subject to §55.156 ofthis title (relating to Public Comment Processing), afterthe close ofthe comment period, the chiefclerk shall transmit to the people listed in subsection (b) ofthis section the following information: (1) the executive director's decision; (2) the executive director's response to public comments; (3) instructions for requesting that the commission reconsider the executive director's decision; and (4) instructions for requesting a contested case hearing. (b) The 

### following persons shall be sent the information listed in subsection (a) ofthis section: (1) the applicant; (2) any person who requested to be on the mailing listfor the permit action; 

### 10(3) any person who submitted comments during the public comment period; (4) any person who timely filed a requestfora contested case hearing; (5) Office ofthe Public Interest Counsel; and (6) Office of PublicAssistance. (c) Forair applicationswhich meetthe following conditions, items listed in subsection (a)(3) and (4) ofthis section are not required to be included in the transmittals: (1) applications for initial issuance of permits underTexas Health and Safety Code, §§382.05183, 382.05185(c) and (d), 382.05186 and 382.0519; (2)· applications for initial issuance ofelectric generating facility permits underTexas Utilities Code, §39.264; (3) applications forwhich no timely hearing request is submitted in response to the Notice of Receipt ofApplication and Intentto Obtain a Permit; (4) applications forwhich a timely hearing request is submitted in response to the Notice of Receipt ofApplication and Intentto Obtain Permit and the request is withdrawn before the date the preliminary decision is issued; or (5) the application is for any amendment, modification, or renewal application thatwould not result in an increase in allowable emissions and would not result in the emission ofan air contaminant not previously emitted unless the application involves a facility forwhich the applicant's 11compliance history contains violations which are unresolved and which constitute a recurring pattern of egregious conductwhich demonstrates a consistent disregard forthe regulatory process, including the failure to make a timely and substantial attemptto correctthe violations. 

### (d) For applications forwhich all timely**commen~s** and requests have been withdrawn before the filing ofthe executive director's response to comments, the chiefclerk shall transmit only the items listed in subsection (a)(1) and (2) ofthis section and the executive director may act on the application under §50.133 ofthis title (relating to Executive DirectorAction on Application orWQMP Update).



### 12SUBCHAPTER K: PUBLIC NOTICE OF AIR QUALITYAPPLICATIONS §§39.603, 39.604, 39.606

§39.603. Newspaper Notice. (a) Notice 

### of Receipt ofApplication and Intentto Obtain Permit under §39.418 

### ofthis title (relating to Notice 

### of Receipt ofApplication and Intentto Obtain Permit) is required to be published no laterthan 30 days afterthe executive directordeclares an application administratively complete. This notice must contain the text as required by §39.411 (b)(1) - (6) and (8) - (10) ofthis title (relating to Text of Public Notice). (b) Notice ofApplication and Preliminary Decision under §39.419 ofthis title (relating to Notice ofApplication and Preliminary Decision) is required to be published within 33 days afterthe chiefclerk has mailed the preliminary decision concurrently with the Notice ofApplication and Preliminary Decision to the applicant. This notice must contain the text as required by §39.411 (c)(1) - 

### (6) ofthis title (relating to Text of Public Notice). (c) General newspaper notice. Unless otherwise specified, when this chapter requires published notice ofan air application, the applicant shall publish notice in a newspaperofgeneral circulation in the municipality in which the facility is located or is proposed to be located or in the municipality nearestto the location or proposed location ofthe facility, as follows. (1) One notice shall be published in the public notice section ofthe newspaperand shall comply with §39.411 ofthis title (relating to Text of Notice).

13(2) Another noticewith a total size ofat least6 column inches, with a vertical dimension ofat least 3 inches and a horizontal dimension ofat least2 column widths, ora size ofat least 12 square inches, shall be pUblished in a prominent location elsewhere in the same issue ofthe newspaper. This notice shall contain the following information: (A) permitapplication number; (B) company name; (C) type offacility; (D) description ofthe location ofthe facility; and (E) a note that additional information is in the pUblic,notice section ofthe same issue. (d) Alternative language newspaper notice. (1) This subsection applies whenever notice is required to be pUblished under §39.418 ofthis tit/e, §39.419 ofthis title, and this section and eitherthe elementary or middle school nearestto the facility or proposed facility is required to provide a bilingual education program as required by Texas Education Code, Chapter29, Subchapter B, and 19 TAC §89.1205(a) (relating to Required Bilingual Education and English as a Second Language Programs) and one ofthe following conditions is met: (A) students are enrolled in a program at that school;



### 14(8) students from that school attend a bilingual education program at another location; or (C) the school that otherwise would be required to provide a bilingual education program waives out ofthis requirement under 19 TAC §89.1205(g). (2) Elementary or middle schools that offer English as a second language under 19 TAC §89.1205(e), and are not otherwise affected by 19 TAC §89.1205(a), will nottriggerthe requirements ofthis subsection. 

### (3) The notice shall be published in a newspaperor publication that is published primarily in the alternative languages in which the bilingual education program is orwould have been taught, and the notice must be in those languages. 

### (4) The newspaperor publication must be ofgeneral circulation in the municipality or county in which the facility is located or proposed to be located. Notice underthis subsection shall only be required to be published within the United States. (5) The requirements ofthis subsection are waived for each language in which no publication exists, or ifthe publishers ofall alternative language publications refuse to publish the notice. Ifthe alternative language publication is published less frequently than once a month, this notice requirement may be waived by the executive directoron a cas'e-by-case basis. 

### (6) Each alternative language publication shall follow the requirements ofthis chapter that are consistentwith this section.

15(7) 

### Ifa waiver is received underthis section, the applicant shall complete a verification and submit it as required under§39.605(3) ofthis title (relating to Notice to Affected Agencies). (e) Alternative publication procedures forsmall businesses. (1) The applicantdoes not have to complywith subsection (c)(2) ofthis section ifall of the following conditions are met: (A) the applicant and source meets the definition ofa small business stationary source in §382.0365 ofthe Texas Health and Safety Code including, but not limited to, those which: (i) are not a majorstationary source forfederal air quality permitting; (ii) do not emit 50 tons or more peryear ofany regulated airpollutant; (iii) emit less than 75 tons peryear ofall regulated air pollutants combined; and (iv) are owned oroperated by a person that employs 100 orfewer individuals; and 

### (8) ifthe applicant's site meets the emission limits in §106.4(a) ofthis title (relating to Requirements for Exemption from Permitting) itwill be considered to not have a significant effect on air quality. (2) The executive director may post information regarding pending air permit applications on its website, such as the permit number, company name, project type, facility type, 16nearestcity, county, date public notice authorized, information on comment periods, and information on howto contactthe agency forfurther information. (f) Ifan air application is referred to SOAH for a contested case hearing underChapter 80 of this title (relating to Contested Case Hearings), the applicant shall publish notice once in a newspaperas described in (c) ofthis section, containing the information under§39.411 (d) ofthis title. This notice shall be published and affidavits filed with the chiefclerk no laterthan 30 days before the scheduled date of the hearing. 

### §39.604. Sign-Posting. (a) At the applicant's expense, a sign orsigns shall be placed at the site ofthe existing or proposed facility declaring the filing ofan application for a permit and stating the manner in which the commission may be contacted forfurther informatiQn.Such signs shall beprovided by the applicant and shall sUbstantially meetthe following requirements: (1) Signs shall consist ofdark lettering on a white background and shall be no smaller than 18 inches by 28 inches and all lettering shall be no less than one and one-half inches in size and block printed capital lettering; (2) Signs shall be headed by the words listed below: (A) "PROPOSED AIR QUALITY PERMIT" for new permits and permit amendments; or (8) "PROPOSED RENEWAL OF AIR QUALITY PERMIT" for permit renewals.



### 17(3) Signs shall include the words "APPLICATION NO." and the numberofthe permit application. More than one application number may be included on the signs ifthe respective pUblic comment periods coincide; (4) Signs shall include the words "forfurther information contact"; (5) Signs shall include the words "Texas Natural Resource Conservation Commission," and the address ofthe appropriate commission regional office; (6) Signs shall include the telephone numberofthe appropriate commission office; (b) The sign orsigns must be in place by the date of publication ofthe Notice of Receipt of Application and Intentto Obtain Permit and must remain in place and legible throughout that public

.comment period. The applicant must provide a verification thatthe sign posting was conducted according to this section. (c) Each sign placed at the site must be located within ten feet ofevery property line paralleling a pUblic highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum ofone sign, but no more than three signs shall be reqUired along any property line paralleling a public highway, street, or road. The executive director may approve variations from these requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public. This section's sign requirements do not apply to properties underthe same ownership which are noncontiguous orseparated by intervening public highway, street, or road, unless directly involved by the permit application. (d) The executive director may approve variations from the requirements ofthis subsection if the applicant has demonstrated that it is not practical to comply with the specific requirements ofthis 

### 18subsection and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval from the executive director underthis subsection must be received before posting signs for purposes ofsatisfying the requirements ofthis section. (e) Alternative language sign posting is required wheneveralternative language newspaper notice would be required under§39.603 ofthis title (relating to Newspaper Notice). The applicant shall post additional signs in each alternative language in which the bilingual education program is taught. The alternative language signs shall be posted adjacentto each English language sign required in this section. The alternative language sign posting requirements ofthis subsection shall be satisfied without regard to whether alternative language newspaper notice is waived under§39.703(d)(5) ofthis title (relating to Newspaper Notice). The alternative language signs shall meet all other requirements ofthis section. 

### §39.606. Alternative Means of Notice for Permits for Grandfathered FaciHties. (a) An applicantfor a permit, underTexas Health and Safety Code, §§382.05183, 382.05185(c) and (d), 382.05186, or 382.0519, for a facility that constitutes or is part ofa small business stationary source, as defined in Texas Health and Safety Code, §382.0365(g)(2), may request that the executive directorapprove an alternative means from the notice methods required underthis subchapter. (b) The executive director may approve the request upon a determination that the alternative means will result in equal or bettercommunication with the public, considering the following factors: (1) the effectiveness ofthe method of notice in reaching potentially affected persons; (2) the cost ofthe method of notice; and

19(3) whetherthe method is consistentwith federal requirements. (c) The applicant may not use the alternative means of notice until the executive directorgives written approval. (d) Notice of hearing. The applicant shall publish notice ofthe hearing in a newspaperof general circulation in the municipality in which the facility is located oris proposed to be located or in the municipality nearestto the location or proposed location ofthe facility. The notice must be published not less than 30 days before the hearing.



### 20CHAPTER 116: CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION SUBCHAPTER A: DEFINITIONS §116.10, §116.18 §116.10. General Definitions.

Unless specifically defined in the TCM or in the rules ofthe commission, the terms used by the commission have the meanings commonly ascribed to them in the field ofair pollution control: In addition to the terms which are defined by the TCM, and in §101.1 ofthis title (relating to Definitions), the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Actual emissions - The highest rate ofemissions ofan aircontaminant actualiy achieVed from a qualified facility within the 120-month period priorto the change. This rate cannot exceed any applicable federal orstate emissions limitation. This definition applies only when determining whetherthere has been a net increase in allowable emissions under §116.116(e) ofthis title (relating to Changes to Facilities). (2) Allowable emissions - The authorized rate ofemissions ofan air contaminant from a facility as determined in accordance with this section. This rate cannot exceed any applicable state or federal emissions limitation. This definition applies only when determining whetherthere has been a net increase in allowable emissions under §116.116(e) ofthis title. (A) Permitted facility - For a facility with a permit underthis chapter, the allowable emissions shall be any emission limit established in the permiton a MAERT and any emission



### 1limit contained in representations in the permit application which was relied upon in issuing the permit, plus any allowable emissions authorized underChapter 106 ofthis title (relating to Permits by Rule). (B) Facility permitted by rule - Fora facility operating underChapter 106 of this title, the allowable emissions shall be the least ofthe emissions rate allowed in Chapter 106, SubchapterA ofthis title (relating to General Requirements), the emissions rate specified in the applicable permit by rule, orthe federally enforceable emission rate established on a PI-8 form. (C) Qualified grandfathered facility - Fora qualified grandfathered'facility, the allowable emissions shall be the maximum annual emissions rate afterthe implementation ofany air pollution control methods to become a qualified facility. plus'1 0% ofthe maximum annual emissions rate priorto the implementation ofsuch control methods, but in no case shall the allowable emissions be greaterthan the maximum annual emissions rate priorto the implementation ofsuch control methods. The maximum annual emissions rate is the emissions rate atthe maximum annual capacity according to the physical or operational design ofthe facility, data from actual operations over a period of no more than 12 months that demonstrates the maximum annual capacity, or other information that demonstrates the maximum annual capacity. Exceptwhere a grandfathered facility has been modified, the allowable emissions for the modification shall be determined as a permitted facility. (D) Standard permit facility - Fora facility authorized by standard permit, other than §116.617(2) ofthis title (relating to Standard Permits for Pollution Control Projects), the allowable emissions shall be the maximum emissions rate represented in the registration to use the standard permit. (E) Special exemption facility - Fora facility operating undera special exemption, the allowable emissions shall be the emissions rate represented in the original special exemption request. 

### 2

### (F) The allowable emissions for a qualified facility shall not be adjusted by the voluntary installation ofcontrols. (3) Best available control technology (BACT) - 

### BACTwith consideration given to the technical practicability and the economic reasonableness of reducing or eliminating emissions from the facility. (4) Facility - 

### A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances otherthan emission'control equipment. A mine, quarry, well test, or road is nota facility. (5) Federally enforceable - 

### All limitations and conditions which are enforceable by the EPA, including: (A) those requirements developed underTitle 40 ofthe Code of Federal Regulations (CFR) Parts 60 and 61 (40 CFR 60 and 61); (B) Chapter 113, SubchapterC ofthis title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR 63»; (C) requirements within any applicable state**i~plementation** 

### plan (SIP); (D) any permit requirements established under40 CFR §52.21; (E) any permit requirements established under regulations approved under40 CFR Part 51, Subpart I, including permits issued underthe EPA-approved program that is incorporated into the SIP and that expressly requires adherence to any permit issued undersuch program; or 

### 3(F) any permit requirements established underSubchapterC ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part63». (6) Grandfathered facility - Any facility that is not a newfacility and has not been modified since August 30, 1971. (7) Lead smelting plant - Any facility which produces purified lead by melting and separating lead from metal and nonmetallic contaminants and/or by reducing oxides into elemental lead. Raw materials consist of lead concentrates, lead-bearing ores or lead scrap, drosses, orother leadbearing residues. Additional processing may include refining and alloying. A facility which only remelts lead bars or ingots for casting into lead products is not a lead smelting plant. (8) Maximum allowable emissions rate table (MAERT) - A table included with a preconstruction permit issued underthis chapterthat contains the allowable emission rates established by the permit for a facility. (9) Modification of existing facility - Any physical change in, or change in the method ofoperation of, a facility in a mannerthat increases the amount ofany air contaminant emitted by the facility into the atmosphere orthat results in the emission ofany aircontaminant not previously emitted. The term does not include: (A) insignificant increases in the amount ofany air contaminant emitted that is authorized by one or more commission exemptions; (8) insignificant increases at a permitted'facility;



### 4

### (C) maintenance or replacement ofequipmentcomponents that do not increase ortend to increase the amount or change the characteristics ofthe air contaminants emitted into the atmosphere; (0) an increase in the annual hours ofoperation unless the existing facility has received a preconstruction permit or has been exempted, underthe TCM, 

### §382.057, from preconstruction permit requirements; (E) a physical change in, or change in the method ofoperation of, a facility that does not result in a net increase in allowable emission ofany air contaminant and that does not result in the emission of any air contaminant not previously emitted, provided thatthe facility: (i) has received a preconstruction permit or permit amendmentor has been exempted underthe TCM, 

### §382.057, from preconstruction permit requirements no earlierthan 

### 120 months before the change will occur; or (ii) uses, regardless ofwhetherthe facility has received a preconstruction permit or permit amendment or has been exempted underthe TCM, 

### §382.057, an air pollution control method that is at least as effective as the BACTthatthe commission reqUired orwould have required for a facility ofthe same class ortype as a condition of issuing a permitor permit amendment 

### 120 months before the change will occur; (F) a physical change in, or change in the method ofoperation of, a facility where the change is within the scope ofa flexible permit or a mUltiple plant permit; or (G) a change in the method ofoperation ofa natural gas processing, treating, or compression facility connected to or partofa natural gas gathering ortransmission pipeline which does 

### 5not result in an annual emission rate ofany air contaminant in excess ofthe volume emitted at the maximum designed capacity, provided thatthe facility is one forwhich: (i) construction or operation started on or before September 1, 1971, and atwhich either no modification has occurred after September 1, 1971, or atwhich modifications have occurred only underChapter 106 ofthis title; or (ii) construction started after September 1, 1971, and before March 1, 1972, and which registered in accordance with TCAA, §382.060, as that section existed prior'to September 1, 1991. (10) 

### Newfacility - A facility forwhich construction is commenced afterAugust 30, 1971, and no contract for construction was executed on or before August 30, 1971, and that contract specified a beginning construction date on or before February 29,1972. (11) 

### Newsource - Any stationary source, the construction or modification ofwhich is commenced after March 5, 1972. (12) 

### Nonattainment area - A defined region within the state which is designated by the EPAas failing to meetthe national ambient airquality standard for a pollutant forwhich a standard exists. The EPAwill designate the area as nonattainment underthe prqvisions of FCAA, §107(d). (13) 

### Public notice - The pUblic notice ofapplication for a permit as required in this chapter. (14) 

### Qualified facility - An existing facility that satisfies the criteria ofeither paragraph (9)(E)(i) or (ii) ofthis section. 

### 6(15) 

### Source - A point oforigin ofaircontaminants, whether privately or publicly owned . or operated. 

### §116.18. Electric Generating Facility Permits Definitions.

The following words and terms, when used in Subchapter I ofthis chapter (relating to Electric Generating Facility Permits) shall have the following meanings, unless the context clearly indicates otherwise. (1) 

### Allowance - As defined in §101.330(1) ofthis title (relating to Definitions). (2) 

### Capacity factor - Either: (A) the ratio ofan electric generating facility's (EGF) actual annual electric output (expressed in megawatt-hours) to the EGFs nameplate capacity times 8,760 hours; or (B) the ratio ofan EGFs annual heat input (in millions of British thermal units (MMBtu» to the EGF's maximum design heat input (in MMBtu per hour) times 8,760 hours. (3) 

### Coal - As defined in 

### §1 01.330(6) ofthis title. (4) 

### Coal-fired - As defined in §101.330(7) ofthis title. (5) 

### Compliance account - As defined in §1 01.330(8) ofthis title. (6) 

### Control period - As defined in §1 01.330(9) ofthis title.

7(7) Electing EGF - As defined in §101.330(11) ofthis title. (8) Electric generating facility (EGF) - As defined in §101.330(12) ofthis title. (9) Grandfathered EGF - As defined in §101.330(14) ofthis title. (10) Nameplate capacity - The maximum electrical output (expressed in megaw'atts) that an EGF can sustain overa specified period oftime when not restricted by seasonal or other deratings. (11) Natural gas-fired EGF - For purposes of SUbchapter 

### I ofthis chapter, an EGF that was designed to burn either natural gas oran EGF thatwas designed to burn both natural gas and fuel oil. (12) Normal Annual Operating Schedule - Forthe purposes of§116.911 (f)(1) ofthis title (relating to Electric Generating Facility PermitApplication), the maximum numberofoperating hours for an EGF in any 12 consecutive month period between January 1, 1997 and December 31, 1999. For sites with more than one EGF, the owner oroperator may use the EGF with the highest numberof operating hours. (13) Peaking unit - An EGF that has: (A) an average capacity factor of no more than 10% during the past three calendaryears; and (B) a capacity factorof no more than 20% in each ofthose calendaryears.



### 8(14) 

### Person - As defined in §101.330(17) ofthis title.



### 9SUBCHAPTER H: PERMITS FOR GRANDFATHERED FACILITIES DIVISION 1: GENERAL APPLICABILITY 

### §§116.770 -116.772 §116.770. Requirementto Apply.

The owner oroperatorofa grandfathered facility must apply for a permitto operate that facility underthis chapter, qualify for a permit by rule underChapter 106 ofthis title (reJating to Permits by Rule), orsubmit a notice ofshutdown before September 1, 2003 forfacilities located in the EastTexas region as defined in §101.330 ofthis title (relating to Definitions), and before September 1,2004 for facilities located in the WestTexas region as defined in §101.330 ofthis title or EI Paso County. 

### §116.771. Implementation Schedule forAdditional Controls. (a) Ifthe installation ofadditional controls is reqUired for a grandfathered facility to meet an emission limitfor a pollutant, the permit shall specify an implementation schedule for such additional controls. Any such schedule shall require installation and operation ofcontrols before March 1, 2007 for facilities located in the EastTexas region as defined in §1 01.330 ofthis title (relating to Definitions) or before March 1, 2008 forfacilities located in the WestTexas region as defined in §1 01.330 ofthis title or EI Paso County. (b) The owneroroperatorofa grandfathered facility.that does not obtain a permitwithin 12 months of receipt bythe commission ofan administratively complete application for a permit may petition the commission foran extension ofthe time period forthe installation ofcontrols under subsection (a) ofthis section. The commission may grant not more than one extension for a facility, for an additional period of not more than 12 months, ifthe commission finds good cause forthe extension.

10

### §116.772. Notice ofShutdown. (a) The owneroroperatorofa grandfathered facility who chooses to shutthe facility down ratherthan obtain a permit underthis chapterorqualify for a permit by rule underChapter 106 ofthis title (relating to Permits by RUle), shall notify the executive director in writing by completing Form PI1GSD, Notice of Shutdown, priorto the deadlines specified in §116.770 or§116.774 ofthis title (relating to Requirementto Apply; and Eligibility for Small Business Stationary Source Permits). The owneror operator of a grandfathered facility who submits a Form PI-1GSD, Notice ofShutdown, priorto the deadlines specified in §116.770 or §116.774 ofthis title shall cease emitting air contaminants by: (1) March 1, 2007. ifthe facility is not eligible for a small business stationary source permit and is located in the EastTexas region as defined in §1 01.330 ofthis title (relating to Definitions); or (2) March 1, 2008, ifthe facility is eligible for a small business stationary source permit or is located in the WestTexas region as defined in §101.330 ofthis title or EI Paso County. (b) The owner oroperatorofa grandfathered facility who applies for a permit priorto the deadlines specified in §116.770 or §116.774 ofthis title, but priorto permit issuance, decides to shutthe facility down must submit a Form PI-1 GSD, Notice ofShutdown, priorto withdrawal ofthe permit application and mustcease emitting air contaminants by the date specified in subsection (a)(1) or (2) of this section. (c) The owneroroperatorofa facility that has been shut down and forwhich a Notice of Shutdown has been submitted mustobtain the properauthorization underthis chapter or Chapter 106 of this title priorto operating the facility.

11(d) The Notice ofShutdown shall include, as a minimum, an identification ofthe facility to be shut down, the date the owneror operator intends to cease operating the facility, and an inventory ofthe type and amount ofemissions that

### will be eliminated when the facility ceases to operate.



### 12DIVISION 2: SMALL BUSINESS STATIONARY SOURCE PERMITS, PIPELINE FACILITIES PERMITS, AND EXISTING FACILITY PERMITS 

### §§116.774, 116.775, 116.777, 116.779 -116.781, 116.783, 116.785 -116.788, 116.790 §116.774. Eligibilityfor Small Business Stationary Source Permits. (a) The owneror operatorofa grandfathered facility located at a small business stationary source, as defined in TCM, §382.0365(h), and which is not required .to reportto the commission under TCM, §382.014 may apply for a small business stationary source permit before September 1, 2004. (b) The deadlines contained in §116.770 ofthis title (relating to Requirementto Apply) and §116.771 ofthis title (relating to Implementation Schedule forAdditional Controls) do not apply to facilities eligible to apply for a small business stationary source permit. Any grandfathered facility, including any facility forwhich the owneror operatorhas submitted a notice ofshutdown under §116.772 ofthis title (relating to Notice of Shutdown), located at a small business stationary source may not emit air contaminants on or after March 1, 2008, unless the facility is permitted, or has a permit application pending underthis chapter, or has a registration or pending registration for a permit by rule under Chapter 106 ofthis title (relating to Permits by RUle). (c) Applications for a small business stationary source permit shall be submitted underthe seal ofa Texas licensed professional engineer, if required by §116.110(e) ofthis title (relating to Applicability). (d) The owneroroperatorofthe grandfathered facility, group offacilities, or account is responsible for applying forthe small business stationary permit and for complying with this subchapter.

13§116.775. Eligibilityfor Pipeline Facilities Permits. (a) The owner or operatorofa grandfathered reciprocating internal combustion engine or group ofengines that is a part of processing, treating, compression, or pumping facilities connected to or part ofa gathering ortransmission pipeline may apply fora pipeline facilities permit. (b) Applications for a pipeline facilities permit shall be submitted underthe seal ofa Texas licensed professional engineer, if required by 

### §116.11 O(e) ofthis title (relating to Applicability). (c) The owneroroperator ofthe grandfathered facility, group offacilities, or account is responsible for applying for the pipeline facilities permit and for complying with this subchapter. (d) The owner oroperator of more than one grandfathered reciprocating internal combustion engine may apply for a pipeline facilities permit for a single grandfathered reciprocating internal combustion engine or a groupofthe grandfathered reciprocating internal combustion engines connected to or part ofa gathering ortransmission pipeline. §116.777. Eligibility for Existing Facility Permits. (a) The owner oroperator ofa grandfathered facility may apply for an existing facility permit. (b) Applications for an existing facility permit shall be submitted underthe seal ofa Texas licensed professional engineer, if required by §116.110(e) ofthis title (relating to Applicability). (c) The owneror operator ofthe grandfathered facility, group offacilities, or account is responsible for applying forthe existing facility permit and for complying with this subchapter.



### 14

### §116.779. Applications for Small Business Stationary Source"Permits, Pipeline Facilities Permits, or Existing Facility Permits. (a) Any application for a small business stationary source permit, a pipeline facilities permit, or an existing facility permit must include a completed Form PI-1 G, Grandfathered Facility Permit Application. The Form PI-1 G must be signed by an authorized representative ofthe applicant. The Form PI-1G specifies additional support information which must be provided before the application is deemed complete. In orderto be granted a permit, the owner or operator ofthe grandfathered facility shall submit information to the commission which demonstrates that all ofthe following are met. (1) Protection of public health and welfare. The emissions from the grandfathered facility will comply with all rules and regulations ofthe commission and with the intent ofthe TCAA, including protection ofthe health and physical property ofthe people. (2) Measurement ofemissions. The permit may have provisions for measuring the emission ofair contaminants as determined by the commission. These provisions may include the installation ofsampling ports on exhaust stacks and construction ofsampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual," portable analyzers, or emissions calculations ifa known process variable is monitored. (3) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR) Part60 will meet at leastthe requirements of any applicable NSPS as listed under40 CFR Part 60, promUlgated by EPA under authority granted under FCAA, 

### §111, as amended. (4) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from each facility as defined in 40 CFR Part61 will meet at leastthe requirements ofany 

### 15applicable NESHAP, as listed under40 CFR Part61, promulgated by EPA underauthority granted under FCAA, §112, as amended. (5) NESHAPs for source categories. The emissions from each affected facility shall meet at leastthe requirements ofany applicable maximum achievable control technology (MACT) standard as listed under40 CFR Part63, promulgated by EPA under FCAA, §112, or as listed in Chapter 113, Subchapter C ofthis title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA Section 112,40 CFR 63)). (6) Performance demonstration. The grandfathered facility will achieve the performance specified in the permit application. The commission may require the applicantto submit additional engineering data afterthe permit has been issued in orderto demonstrate furtherthatthe facility will achieve the performance specified in the permit. In addition, the commission may require initial compliance testing to determine ongoing compliance through engineering calculations based on measured process variables, parametric or predictive monitoring, stack monitoring, or stacktesting. (7) Nonattainment review. A grandfathered facility in a nonattainment area shall comply with all applicable requirements under Subchapter 8, Division 5 ofthis chapter (relating to Nonattainment Review). (8) Prevention of Significant Deterioration (PSD) review. A grandfathered facility in an attainment area shall comply with all applicable requirements under Subchapter 8, Division 6 ofthis chapter (relating to Prevention ofSignificant Deterioration Review). (9) Air dispersion modeling or ambient monitoring. The commission may require computerized air dispersion modeling and/or ambient monitoring to determine the air quality impacts from the grandfathered facility.

16(10) Federal standards of review for constructed or re·constructed majorsources of hazardous air pollutants. Ifthe grandfathered facility is an affected source as defined in §116.15(1) of this title (relating to Section 112(g) Definitions), the affected source shall comply with all applicable requirements under Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part63». (11) Application content. In addition to any other requirements ofthis subchapter, the applicant shall: (A) identify each facility to be included in the permit; (8) identify the aircontaminants emitted; and (C) provide emission rate calculations. (b) In addition to the requirements ofsubsection (a) ofthis section, an application for a pipeline facilities permit shall propose a control method and identify the date by which the control method will be implemented. The proposed control method shall demonstrate compliance with the following requirements. (1) Facilities located in the EastTexas region as defined in §101.330 ofthis title (relating to Definitions), shall demonstrate that each grandfathered reciprocating internal combustion engine will achieve at least a 50% reduction ofthe hourly emissions rate of nitrogen oxides (NOx)' expressed in terms ofgrams per brake horsepower-hour (g/bhp-hr). The commission may also require a 50% reduction ofthe hourly emissions rate ofvolatile organic compounds (VOC), expressed in terms of g/bhp-hrfor each engine located in the EastTexas region as defined in §1 01.330 ofthis title.



### 17(2) The commission shall require up to a 20% reduction ofthe hourly emissions rate of NOx and may also require up to a 20% reduction ofthe hourly emissions rate ofVOC, both expressed in terms ofg/bhp-hr, from grandfathered reciprocating internal combustion engines located in the West Texas region as defined in §101.330 ofthis title or EI Paso County. (3) Notwithstanding the requirements of paragraphs (1) and (2) ofthis subsection, the owneroroperator of more than one grandfathered reciprocating internal combustion engine may average the reductions achieved among more than one reciprocating internal combustion engine connected to or part ofa gathering ortransmission pipeline in orderto demonstrate the reductions required in paragraphs (1) and (2) ofthis subsection. Ifthe owner or operator chooses to average among engines located in both the East and WestTexas regions as defined in §1 01.330 ofthis title it must be demonstrated thatthe sum ofthe reductions achieved from all ofthe engines located in the EastTexas region as defined in §1 01.330 ofthis title will achieve the reductions reqUired in paragraph (1) ofthis subsection. For purposes ofthis paragraph, EI Paso County is included in the West Texas. region as defined in §101.330 ofthis title. (4) Ifthe emissions reductions required by paragraphs (1) and (2) ofthis subsection will be achieved by averaging reductions as allowed by paragraph (3) ofthis subsection, the average may not include emission reductions achieved in orderto comply with any other state orfederal law. Ifthe emission reductions required by paragraphs (1) and (2) ofthis subsection will be achieved at one account, the reduction may include emission reductions achieved since January 1, 2001 in orderto comply with another state orfederal law. (c) In addition to the requirements ofsubsection (a) ofthis section, an application for an existing facility permit shall propose an air pollution control method that is at least as beneficial as the best available control technology (BACT) thatthe commission required orwould have required for a facility of the same class ortype as a condition of issuing a permit or permit amendment 120 months before the 

### 18submittal ofthe existing facility permit application, considering the age and remaining useful life ofthe facility. The application shall identify the date by which the control method will be implemented. 

### §116.780. Public Participation for 

### Initial Issuance of Pipeline Facilities Permits and EXisting Facility Permits. (a) An applicant for a pipeline facilities permit or an existing facility permit shall publish a notice of intentto obtain the permit in accordance with Chapter39, Subchapters Hand K ofthis title (relating to Applicability and General Provisions; and Public Notice ofAir Quality Applications). (b) Any person who may be affeCted by emissionsfrom a grandfathered facility may requestthe commission to hold a notice and comment hearing on the pipeline facilities permit application orthe existing facility permit application. The public comment period shall end 30 days afterthe publication of Notice of Receipt ofApplication and Intentto Obtain Permit in accordance with §39.418 ofthis title (relating to Notice of Receipt ofApplication and Intentto Obtain Permit). Any requestfor a notice and comment hearing must be made in writing during the 30-day public comment period. (c) Any notice and comment hearing regarding initial issuance ofa pipeline facilities permit or an existing facility permit shall be conducted in accordance with the procedures in §116.781 ofthis title (relating to Notice and Comment Hearings for Initial Issuance of Pipeline Facilities Permits and Existing Facility Permits) and not underthe APA. (d) The commission's response to public comments and the notice of its decision on whetherto issue or deny a pipeline facilities permit or an existing facility permitwill be conducted in accordance with the procedures in §116.783 ofthis title (relating to Notice of Final Action on Pipeline Facilities Permit Applications and Existing Facility PermitApplications).

19(e) A person affected by a decision to issue ordeny a pipeline facilities permit or an existing facility permit may seek review, as appropriate, underthe appropriate procedure in Chapter50 ofthis title (relating to Action on Applications and OtherAuthorizations), and may seekjudicial review under TCAA, §382.032, relating to Appeal ofCommission Action. 

### §116.781. Notice and Comment Hearings for Initial Issuance of Pipeline Facilities Permits and Existing Facility Permits. (a) The notice and comment hearing requirements apply only to the initial issuance ofa pipeline facilities permit or an eXisting facility permit. (b) The commission shall decide whetherto hold a hearing. The commission is not required to hold a hearing if it determines that the basis ofthe request by a person who may be affected by emissions from a grandfathered facility is unreasonable. Ifa hearing is requested by a person who may be affected by emissions from agrandfathered facility, and that request is reasonable, the commission will hold a hearing. (c) At the applicant's expense, notice ofa hearing on a draft permit must be published in the public notice section ofone issue ofa newspaperofgeneral circulation in the municipality in which the grandfathered facility is located, or in the municipality nearestto the location ofthe facility. The notice must be published at least 30 days before the date set**fo~** the hearing. The notice must include the folloWing: (1) the time, place, and nature ofthe hearing; (2) a briefdescription ofthe purpose ofthe hearing; and

20(3) the name and phone numberofthe commission office to be contacted to verify that a hearing will be held. (d) Any person, including the applicant, may submit oral orwritten statements and data concerning the draft permit. (1) The commission may set reasonable time limits for oral statements, and may require the submission ofstatements in writing. (2) The period for sUbmitting written comments is automatically extended to the close of any hearing. (3) At the hearing, the commission may extend the period for submitting written comments beyond the close ofthe hearing. (e) The commission will make an audio recording orwritten transcript ofthe hearing available to the public. (f) Any person, including the applicant, who believes that any condition ofthe draft permit is inappropriate orthatthe preliminary decision to issue or deny the permit is inappropriate, shall raise all issues and submit all arguments supporting that position by the end ofthe public comment period. (g) Any supporting materials for comments submitted undersubsection (f) ofthis section must be included in full and may not be incorporated by reference, unless the materials are one ofthe following: (1) already part ofthe administrative record in the same proceedings; 

### 21(2) state orfederal statutes and regulations; (3) EPA documents ofgeneral applicability; or (4) other generally available reference materials. (h) The commission will keep a record ofall comments received and issues raised in the hearing. This record will be available to the public. (i) The draft permit may be changed based on comments pertaining to whetherthe permit provides for compliance with the requirements ofthis subchapter. 

### U) The commission will respond to comments consistentwith §116.783 ofthis ti.tle (relating to Notice of Final Action on Pipeline Facilities PermitApplications and Existing Facility PermitApplications). 

### §116.783. Notice of Final Action on Pipeline Facilities PermitApplications and Existing Facility PermitApplications. (a) Afterthe public comment period expires orthe conclusion ofany notice and comment hearing, the commission will send notice by first-class mail ofthe final action on the pipeline facilities permit application orthe existing facility permit application to anyperson who commented during the public comment period or atthe hearing, and to the applicant. (b) The notice must include the following: (1) the response to any comments submitted during the pUblic comment period; 22(2) identification ofany change in the conditions ofthe draft permit and the reasons for the change; and (3) a statementthat any person affected by the decision ofthe executive director may file a motion to overturn underthe appropriate procedure in Chapter50 ofthis title (relating to Action on Applications and OtherAuthorizations) and may seekjudicial review underTCAA, §382.032, relating to Appeal ofCommission Action. 

### §116.785. PermitFee. (a) Fees required. Any person who applies for a permit underthis division relating to small business stationary source permits, pipeline facility permits, and existing facility permits must remit a fee of$450 atthe time ofapplication for such permit. Ifthe facility is a small business stationary source facility as defined in TCAA, §382.0365(h), the fee shall be $100. (b) Payment offees. All permitfees must be remitted in the form ofa check or money order made payable to the Texas Natural Resource Conservation Commission and delivered to the Texas Natural Resource Conservation Commission, P. O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the commission will begin examination ofthe application. (c) Return offees. Fees must be paid atthe time an application for a permit is submitted in accordance with this division. Ifthe applicantwithdraws the application priorto issuance ofthe permit, one-halfofthe fee will be refunded, exceptthatthe entire fee will be refunded for any such application forwhich a permit by rule in accordance with Chapter 106 ofthis title (relating to Permits by Rule) is allowed. No fees will be refunded aftera deficient application has been voided, denied, or after a permit has been issued by the commission.

23

### §116.786. General and Special Conditions. (a) Permits issued underthis division relating to small business stationary source permits, pipeline facility permits, and existing facility permits may contain general and special conditions. The holders ofa permit underthis division shall comply with any and all such conditions. (b) General conditions. Holders of permits issued underthis division shall complywith the following general conditions, regardless ofwhetherthey are specifically stated within the permit document. (1) Sampling requirements. (A) Ifsampling is required, the permit holdershall contact the commission's Office ofCompliance and Enforcementpriorto sampling to obtain the proper data forms and procedures. (B) All sampling and testing procedures must be approved by the executive directorand coordinated with the regional representatives ofthe commission. (C) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations, orcontracting with an independent sampling consultant. (2) Equivalency of methods. The permit holder must demonstrate or otherwisejustify the equivalency ofemission control methods, sampling orotheremission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions ofthe permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director priorto their use in fulfilling any requirements ofthe permit. 

### 24(3) Recordkeeping. The permit holdershall: (A) maintain a copy ofthe permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours; (8) keep all required records in a file atthe plant site. If, however, the facility normally operates unattended, records shall be maintained atthe nearest staffed location within the State ofTexas as specified in the application; (C) make the records available at the request of personnel from the commission or any air pollution control program havingjurisdiction; (D) comply with any additional recordkeeping requirements specified in special conditions attached to the permit; and (E) retain information in the file for at leasttwo years following the date that the information or data is obtained. (4) Maximum allowable emission rates. The total emissions ofair contaminants from any ofthe sources ofemissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources--Maximum Allowable Emission Rates." (5) Maintenance ofemission control. The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holdershall provide notification for upset and maintenance in accordance with §1 01.6 and §1 01.7 ofthis title (relating to Upset Reporting 

### 25and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements). (6) Compliance with rules. (A) Acceptance'ofa permit by an applicant constitutes an acknowledgment and agreementthat the permit holderwill comply with all rules, regulations, and orders ofthe commission issued in conformity with the TCAA and the conditions precedent to the granting ofthe permit. (8) If more than one state orfederal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard bywhich compliance shall be demonstrated. (C) Acceptance includes consent to the entrance ofcommission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration ofaircontaminants, including compliance with the permit. (c) Special conditions. The holders of permits issued underthis division shall comply with all special conditions contained in the permit document. (1) Special conditions may be attached to a permit that are more restrictive than the requirements ofthis title. (2) Special conditions forwritten approval. (A) The executive director may require as a special condition that the permit holderobtain written approval before constructing a source under: 

### 26(i) a standard permit in accordance with Subchapter F ofthis chapter (relating to Standard Permits); or(ii) a permit by rule in accordance with Chapter 106 ofthis title (relating to Permits by Rule). (8) Such written approval may be required ifthe executive directorspecifically finds that an increase ofa particular pollutant could either: 

### (i) result in a significant impact on the air environment; or (ii) cause the facility to become subject to review in accordance with: 

### (I) Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part63»; or 

### (II) the provisions in §116.150 and §116.151 ofthis title (relating to Nonattainment Review), and §§116.160 - 116.163 ofthis title (relating to Prevention of Significant Deterioration Review). 

### §116.787. Amendments and Alterations of Permits Issued Underthis Division.

The owner or operator planning the modification ofa facility permitted underthis division relating to small business stationary source permits, pipeline facilities permits, and existing facility permits must comply with the requirements of Subchapter 8 ofthis chapter (relating to New Source Review Permits)



### 27before work begins on the construction ofthe modification. Amendments and alterations for permits issued underthis division are subject to the requirements ofSubchapter B ofthis chapter. 

### §116.788. Renewal of Permits Issued Underthis Division.

Permits issued underthis division (relating to Small Business Stationary Source Permits, Pipeline Facilities Permits, and Existing Facility Permits) shall be renewed in accordance with the· requirements of Subchapter 0 ofthis chapter (relating to Permit Renewals).. 

### §116.790. Delegation.

The commission delegates to the executive directorthe authority to take any action on a permit issued underthis division relating to small business stationary source permits, pipeline facility permits, and existing facility permits.



### 28

### DIVISION 3: EXISTING FACILITY FLEXIBLE PERMITS 

### §§116.793 -116.802, 116.804 -116.807 §116.793. Eligibility for Existing Facility Flexible Permits. (a) Existing facility flexible permit. The owner or operator ofa grandfathered facility orgroup of grandfathered facilities at a site may apply for an existing facility flexible permit. The existing facility flexible permit may also include facilities permitted underTCAA, §382.0519.. A person may apply for an**exis~ing** facility flexible permit in accordance with §116.794 ofthis title (relating to Existing Facility Flexible PermitApplication) for a facility, group offacilities, or account, provided that: (1) only one existing facility flexible permit may be issued at an account site;

(3) permitting ofa new facility may be handled through the amendment ofan existing facility flexible permit; and (4) an existing facility flexible permit may not cover sources at more than one account site. (b) Change in ownership. The new owner ofa facility, group offacilities, or account shall comply with §116.11 

### O(d) ofthis title (relating to Applicability) prOVided however, that all facilities covered by an existing facility flexible permit must change ownership atthe same time and to.the same person, or both the new owner and existing permit holder must obtain a permit alteration allocating the emission caps or individual emission limitation priorto the transfer ofthe permit by the commission. Afterthe sale 29ofa facility orfacilities, but priorto the transferofa permit requiring a permit alteration, the original permit holder remains responsible for ensuring compliance with the eXisting facility flexible permit and all rules and regulations ofthe commission. (c) Applications foran existing facility flexible permit shall be submitted underthe seal of a Texas licensed professional engineer if required by §116.110(e) ofthis title. (d) Responsibility forexisting facility flexible permit application. The ownerofthe facility, group offacilities, oraccount orthe operator ofthe facility, group offacilities, oraccountwho is authorized to act fo'rthe owner is responsible for complying with this section, except as provided by subsection (b) of this section. §116.794. Existing Facility Flexible Permit Application. Any application for a new eXisting facility flexible permit must include a completed Form PI-1G, Grandfathered Facility PermitApplication. The Form PI-1G must be signed by an authorized representative ofthe applicant. The Form PI-1 G specifies additional support information which must be provided before the application is deemed complete. In orderto be granted an existing facility flexible permit, the owner or operatorofthe grandfathered facility shall submit information to the commission which demonstrates that all ofthe following are met. (1) Protection of public health and welfare. The emissions from the facility, group of facilities, oraccount as determined under§116.800 ofthis title (relating to Emission Caps and Individual Emission Limitations), will comply with all rules and regulations ofthe commission and with the intent of the TCM, including protection ofthe health and physical property ofthe people.



### 30

### (2) Measurement ofemissions. The facility, group offacilities, oraccountwill have provisions for measuring the emission ofair contaminants as determined by the executive director. This may include the installation ofsampling ports on exhaust stacks and construction ofsampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual. n 

### (3) Control method. The grandfathered facility or group ofgrandfathered facilities shall use an air pollution control method that is at least as beneficial as the best available control technology (BACT) thatthe commission required orwould have required fora facility ofthe same class ortype as a condition of issuing a permit or permit amendment 120 months before the submittal ofthe existing facility permit application, considering the age and remaining useful life ofthe facility. Facilities located in nonattainment or near nonattainment areas which obtained avoluntary emission reduction permit (VERP) under Division 4 ofthis subchapter (relating to Voluntary Emission Reduction Permits) shall use generally available control technology (GACT). Control technology beyond ten year old BACT, GACT, or a combination often year old BACT and GACTmay be used on certain facilities to provide the emission reductions necessary to comply with this requirement on a group offacilities oraccount basis, provided however, that the existing level ofcontrol may not be lessened for any facility. (4) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR), Part60 will meet at leastthe requirements ofany applicable NSPS as listed under40 CFR Part 60, promulgated by the EPA underauthority granted under FCAA, §111, as amended. (5) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from each facility as defined in 40 CFR Part 61 will meet at leastthe requirements ofany applicable NESHAP. as listed under40 CFR Part 61, promulgated by EPA underauthority granted under FCAA, §112, as amended. 

### 31(6) NESHAPs forsource categories. The emissions from each affected facility shall meet at leastthe requirements ofany applicable maximum achievable control technology (MACT) standard as listed under40 CFR Part63, promulgated by the EPA under FCM, 

### §112 oras listed under Chapter 113, SubchapterC ofthis title (relating to National Emission Standards for Hazardous Air· Pollutants for Source Categories (FCM Section 112,40 CFR 63)). (7) Performance demonstration. The facility, group offacilities, or accountwill achieve the performance specified in the existing facility flexible permit application. The applicant may be required to submit additional engineering data afteran existing facility flexible permit has been·issued in orderto demonstrate furtherthatthe facility, group offacilities, oraccountwill achieve the performance specified in the existing facility flexible permit. In addition, initial compliance testing with ongoing compliance determined through engineering calculations based on measured process variables, parametric or predictive monitoring, stack monitoring, orstacktesting may be required. (8) Nonattainment review. Ifthe facility, group offacilities, or account is located in a nonattainment area, each facility shall comply with all applicable requirements in accordance with SUbchapter 

### 8, Division 5 ofthis chapter (relating to Nonattainment Review). (9) Prevention of Significant Deterioration (PSD) review. Ifthe facility, group of facilities, or account is located in an attainment area, each facility shall comply with all applicable reqUirements in accordance with Subchapter 8, Division 6 ofthis chapter (relating to Prevention of Significant Deterioration Review). (10) Airdispersion modeling or ambient monitoring. Computerized air dispersion modeling and/or ambient monitoring may be required bythe commission's Air Permits Division to determine the airquality impacts from the facility, group offacilities, or account.

32(11) Federal standards of review for constructed or reconstructed majorsources of hazardous air pollutants. Ifthe source is an affected source (as defined in §116.15(1) ofthis title (relating to Section 112(g) Definitions)), itshall comply with all applicable requirements in accordance with SubchapterC ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63)). (12) Mass cap and trade allocations. Ifsubject to Chapter 101, Subchapter H, Division 3 ofthis title (relating to Mass Emissions Cap and Trade Program) the facility, group offacilities, or account mustobtain allocations to operate. (13) Application content. In addition to any other requirements ofthis chapter, the applicant shall: (A) identify each aircontaminant forwhich an emission cap is desired; (8) identify each facility to be included in the existing facility flexible permit; (C) identify each source ofemissions to be included in the existing facility flexible permit, and for each source ofemissions identify the Emission Point Number (EPN) and the air contaminants emitted; (D) for each emission cap, identify all associated EPNs and provide emission rate calculations based on the expected maximum capacity and the proposed control technology; and (E) for each individual emission limitation, identify the EPN and provide emission rate calculations based on the expected maximum capacity and the proposed control technology. 33(14) Proposed control technology and compliance demonstration. The applicant shall specify the control technology proposed for each unitto meet the emission cap and demonstrate compliance with all emission caps at expected maximum production capacity. §116.795. Public Participation for 

### Initial Issuance of Existing Facility Flexible Permits. (a) An applicant for a permit underthis division relating to existing facility flexible permits shall publish notice of intent to obtain the permit in accordance with Chapter 39, Subchapters Hand Kofthis title (relating to Applicability and General Provisions; and Public Notice ofAir Quality Applications). (b) Any person who may be affected by emissions from a grandfathered facility may request the commission to hold a notice and comment hearing on the application. The public comment period shall end 30 days afterthe publication of Notice of Receipt ofApplication and Intentto Obtain Permit in accordance with §39.418 ofthis title (relating to Notice of Receipt ofApplication and Intentto Obtain Permit). Any hearing request must be made in writing during the 3D-day public comment period. (c) Any hearing regarding initial issuance ofa permit underthis division shall be conducted in accordance with the procedures in §116.796 ofthis title (relating to Notice and Comment Hearings for Initial Issuance of Existing Facility Flexible Permits) and not underthe APA. (d) The commission's response to public comments and the notice of its decision on whetherto issue ordeny a permit underthis division will be conducted in accordance with the procedures in §116.797 ofthis title (relating to Notice of Final Action on Existing Facility Flexible PermitApplications). (e) A person affected by a decision to issue ordeny a permit underthis division may seek review, as appropriate, in accordance with the appropriate procedure in Chapter50 ofthis title (relating

34to Action on Applications and OtherAuthorizations), and may seekjudicial review underTCAA, §382.032, relating to Appeal ofCommission Action. (f) Any person who applies for an amendmentto an existing facility flexible permit regarding an affected source (as defined in §116.15(1) ofthis title (relating to Section 112(g) Definitions» sUbject to Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63» shall comply with the provisions in Chapter 39 ofthis title (relating to Public Notice). 

### §116.796. Notice and Comment Hearings for Initial Issuance of Existing Facility Flexible Permits. (a) The notice and comment hearing requirements apply only to the initial issuance ofan existing facility flexible permit. (b) The commission shall decide whetherto hold a hearing. The commission is not required to hold a hearing if it determines thatthe basis ofthe request by a person who may be affected by emissions from a grandfathered facility is unreasonable. Ifa hearing is requested by a person who may be affected by emissions from a grandfathered facility, and that request is reasonable, the commission will hold a hearing. (c) Atthe applicant's expense, notice ofa hearing on a draft permit must be published in the public notice section ofone issue ofa newspaperof general circulation in the municipality in which the grandfathered facility is located, or in the municipality nearest to the location ofthe facility. The notice must be published at least 30 days before the date setforthe hearing. The notice must include the following: (1) the time, place, and nature ofthe hearing; 35(2) a briefdescription ofthe purpose ofthe hearing; and (3) the name and phone numberofthe commission office to be contacted to verify that a hearing will be held. (d) Any person, including the applicant, may submit oral orwritten statements and data concerning the draft permit. (1) The commission may set reasonable time limits fororal statements, and may require the submission ofstatements in writing. (2) The period for submitting written comments is automatically extended to the close of any hearing. (3) Atthe hearing, the commission may extend the period forsubmitting written comments beyond the close ofthe hearing. (e) The commission will make an audio recording orwritten transcript ofthe hearing available to the public. 

### (f) Any person, including the applicant, who believes that any condition ofthe draft permit is inappropriate orthatthe preliminary decision to issue or deny the permit is inappropriate, shall raise all issues and submit all arguments supporting that position by the end ofthe public comment period. (g) Any supporting materials for comments submitted undersubsection 

### (f) ofthis section must be included in full and may not be incorporated by reference, unless the materials are one ofthe following: 

### 36(1) already part ofthe administrative record in the same proceedings; (2) state orfederal statutes and regulations; (3) EPA documents ofgeneral applicability; or (4) othergenerally available reference materials. (h) The commission will keep a record ofall comments received and issues raised in the hearing. This record will be available to the pUblic. (i) The draft permit may be changed based on comments pertaining to whetherthe permit provides for compliance with the requirements ofthis subchapter. 

## U> The commission will respond to comments consistentwith 

### §116.797 ofthis title (relating to Notice of Final Action on Existing Facility Flexible PermitApplications). §116.797. Notice of Final Action on Existing Facility Flexible PermitApplications. (a) Afterthe public comment period orthe conclusion ofany notice and comment hearing, the commission will send notice by first-class mail ofthe final action on the existing facility flexible permit application to any person who commented during the public comment period or at the hearing, and to the applicant. (b) The notice must include the following: (1) the response to any comments submitted during the public comment period; 37(2) identification ofany change in the conditions ofthe draft permit and the reasons for the change; and(3) a statement that any person affected by the decision ofthe executive director may file a motion to overturn underthe appropriate procedure in Chapter50 ofthis title (relating to Action on Applications and OtherAuthorizations) and may seekjudicial review underTCAA, §382.032, relating to Appeal ofCommission Action. 

### §116.798. PermitFee. (a) Fees required. Any person who applies for a permit underthis division relating to existing facility flexible permits must remit a fee of$450 atthe time ofapplication for such permit. Ifthe facility is a small business stationary source facility as defined in TCAA, §382.0365(h), the fee shall be $100. (b) Payment offees. All permit fees must be remitted in the form ofa check or money order made payable to the Texas Natural Resource Conservation Commission and delivered to the Texas Natural Resource Conservation Commission, P. O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the commission will begin examination ofthe application. (c) Return offees. Fees must be paid at the time an application for a permit is submitted in accordancewith this division. Ifthe applicantwithdraws the application priorto issuance ofthe permit, one-halfofthe fee will be refunded, exceptthatthe entire fee will be refunded for any such application forwhich a permit by rule in accordance with Chapter 106 ofthis title (relating to Permits by Rule) is allowed. No fees will be refunded aftera deficient application has been voided, denied, or after a permit has been issued by the commission.

38

### §116.799. General and Special Conditions. (a) Existing facility flexible permits may contain general and special conditions. The holders of existing facility flexible permits shall comply with any and all such conditions. Upon a specificfinding by the executive directorthat an increase ofa particularair contaminant could result in a significant impact on the air environment, or could cause the facility, group offacilities, oraccountto become subject to review in accordance with §§116.150, 116.151, and 116.160 - 116.163 ofthis title (relating to Nonattainment Review or Prevention ofSignificant Deterioration Review); or SubchapterC ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part63)), the permit may include a special condition which requires the permittee to obtain written approval from the executive director before constructing a facility undera standard permit or a permit by rule under Chapter 106 ofthis title (relating to Permits by Rule). (b) A pollutant specific emission cap or multiple emission caps and/or individual emission limitations shall be established for each air contaminant for all facilities authorized by the existing facility flexible permit. (c) The following general conditions shall be applicable to every existing facility flexible permit. (1) Sampling requirements. Ifsampling ofstacks or process vents is required, the existing facility flexible permit holdershall contact the commission's Office of Compliance and Enforcement, Engineering Services Section priorto sampling to obtain the properdata forms and procedures. All sampling and testing procedures must be approved by the executive directorand coordinated with the appropriate regional office ofthe commission. The existing facility flexible permit holder is also responsible for providing sampling facilities and conducting the sampling operations, or contracting with an independent sampling consultant. 

### 39(2) Equivalency of methods. It shall be the responsibility ofthe existing facility flexible permit holderto demonstrate orotherwisejustifythe equivalency ofemission control methods, sampling or other emission testing methods, and 

### monitoring methods proposed as alternatives to methods indicated in the conditions ofthe existing facility flexible permit. Alternative methods shall be applied for in writing and must be reviewed and approved bythe executive director priorto their use in fUlfilling any requirements ofthe permit. (3) Recordkeeping. A copy ofthe existing facility flexible permit along with information and data sufficient to demonstrate continuous compliance with the emission caps and individual emission limitations contained in the existing facility flexible permit shall be maintaiiled in a fife at the plant site, and made available at the request of personnel from the commission orany air pollution control program having jurisdiction. Forfacilities that normally operate unattended, this information shall be maintained atthe nearest staffed location within the State ofTexas specified by the permit holderin the permit application. This information may include, but is not limited to, emission cap and individual emission limitation calculations based on a 12-month rolling basis and production records and operating hours. Additional recordkeeping requirements may be specified 

### in special conditions attached to the existing facility flexible permit. Information in the file shall be retained for at leasttwo years follOWing the date that the information or data is obtained. (4) Maximum allowable emission rates. An existing facility flexible permit covers only those sources ofemissions and those aircontaminants listed in the table entitled "Emission Sources, Emissions Caps and Individual Emission Limitations" attached to the existing facility flexible permit. Existing facility flexible permitted sources are limited to the emission limits and otherconditions specified in the table attached to the existing facility flexible permit. (5) Emission cap readjustment. Ifa schedule to install additional controls is included in the existing facility flexible permit and a facility subject to such a schedule is taken out ofservice, the 

### 40emission cap contained in the existing facility flexible permitwill be readjusted forthe period the unit is out ofservice to a level as if no schedule had been established. Unless a special provision specifies the method of readjustment ofthe emission cap, a permit alteration shall be obtained. (6) Maintenance ofemission control. The facilities covered by the existing facility flexible permit shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for upset and maintenance shall be made in accordance with §101.6 and §101.7 ofthis title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements). (7) Compliance with rules. Acceptance ofan existing facility flexible permit by a permit applicant constitutes an acknowledgmentand agreement that the holderwill comply with all rules, regulations, and orders ofthe commission issued in conformity with the TCM and the conditions precedent to the granting ofthe permit. If more than one state orfederal rule or regulation or existing facility flexible permit condition are applicable, then the most stringent limit orcondition shall govern and be the standard by which compliance shall be demonstrated. Acceptance includes consent to the entrance ofcommission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration ofair contaminants, inclUding compliance with the existing facility flexible permit. (d) There may be additional special conditions attached to an existing facility flexible permit upon issuance or amendment ofthe permit. Such conditions in an existing facility flexible permit may be more restrictive than the requirements ofthis title.



### 41§116.800. Emission Caps and Individual Emission Limitations. (a) Emission caps. Each emission cap for a specific pollutantwill be established as follows. (1) Emissions will be calculated for each facility based on application of best available control technology (BACT) that the commission required orwould have required fora facility ofthe same class ortype as a condition of issuing a permit or permitamendment 120 months before the submittal of the eXisting facility permit application considering the age and remaining useful life ofthe facility, generally available control technology (GACT) forfacilities with a voluntary emission reduction permit located in nonattainment areas or near nonattainment areas, ora combination often yearold BACT and GACT at expected maximum capacity. (2) The calculated emissions will be summed. (b) Individual emission limitations. An individual emission limitation will be established in the same permit for each pollutant not covered by an emission cap for facilities covered by the existing facility flexible permit. In addition, an individual emission limitation may be established for a pollutant covered by an emission cap when the expected capacity of afacility is less than the expected maximum capacity to prevent a facility from exceeding emission levels appropriate forthe proposed controls. (c) Readjustment ofemission cap. Ifa facility subjectto an emission cap is shut down for a period longerthan 12 months, the emission cap shall be readjusted by lowering the emission cap by an amountthat the shut down facility contributed to the original calculation ofthe emission cap. Ifa new facility is brought into the existing facility flexible permit, an emission cap shall be adjusted by modifying the emission cap accordingly.



### 42(d) An emission cap will be readjusted downward forany facility covered by an existing facility flexible permit ifthatfacility becomes subjectto any new state orfederal regulation which would lower emissions or require an emission reduction. The adjustmentwill be made atthe time the existing facility flexible permit is amended oraltered. Ifan amendment to an existing facility flexible permit is not required to meetthe new regUlation, the permittee must submit a request to alterthe permit and include information describing how compliance with the new requirementwill be demonstrated within 60 days of making the change. 

### §116.801. Implementation Schedule forAdditional Controls.

Ifthe installation of additional controls is required for a grandfathered facility to meet an emission cap for a pollutant, the existing facility flexible permit shall specify an implementation schedule for such additional controls. Any such schedule shall require installation ofcontrols before March 1, 2007 for facilities located in the EastTexas region as defined in §1 01.330 ofthis title (relating to Definitions), or before March 1, 2008 for facilities located in the WestTexas region as defined in §1 01.330 ofthis title or EI Paso County. The permit may also specify howthe emission cap will be adjusted ifsuch a facility is taken out ofservice orfails to install the additional control equipment as provided by the implementation schedule. 

### §116.802. Significant Emission Increase.

An increase in emissions from operational or physical changes at an existing facility covered by an existing facility flexible permit is insignificantforthe purposes ofstate new source review underthis I subchapter, ifthe increase does not exceed eitherthe emission cap or individual emission limitation for the facility covered by the existing facility flexible permit. This section does not apply to an increase in emissions from a newfacility norto the emission ofan air contaminant not previously emitted by an existing facility. 

### 43

### §116.804. Limitation on Physical and Operational Changes.

Neitheroperational nor physical changes at an account may result in an increase in actual emissions at facilities not covered by the existing facility flexible permit unless those affected facilities are authorized in accordance with §116.110 ofthis title (relating to Applicability). 

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

The owneroroperator planning a modification ofa facility permitted underthis division, relating to existing facility flexible permits, mustcomply with the requirements ofSubchapte"r8 ofthis chapter (relating to New Source Review Permits) before work begins on the construction ofthe modification. Amendments and alterations for existing facility flexible permits are subject to the requirements of Subchapter 8 ofthis chapter. 

### §116.806. Existing Facility Flexible Permit Renewal.

Permits issued underthis division, relating to existing facility flexible permits, will be renewed in accordance with the requirements of Subchapter

### 0 ofthis chapter (relating to Permit Renewals). 

### §116.807. Delegation.

The commission delegates to the executive directorthe authority to take any action on a permit issued underthis division, relating to existing facility flexible permits.



### 44DIVISION 4: VOLUNTARY EMISSION REDUCTION PERMITS 

### §§116.810 -116.814, 116.816, 116.820, 116.840 -116.842, 116.850, 116.860, 116.870 §116.810. Eligibility. (a) The owneror operator ofa grandfathered facility may apply for a permitto operate that facility underthis subchapter. Applications underthis sUbchapter must be submitted before September 1,2001.(b) Applications for a voluntary emission reduction permit (VERP) shall be submitted underthe seal of a Texas licensed professional engineer, if required by §116.11 O(e) ofthis title (relating to Applicability). (c) .The owner or authorized operator ofthe grandfathered facility, group offacilities, or account is responsible for applying forthe VERP and for complying with this subchapter. 

### §116.811. Voluntary Emission Reduction PermitApplication. Any application for a voluntary emissions reduction permit (VERP) must include a completed Form PI-1VVoluntary Emission Reduction PermitApplication. The Form PI-1V must be signed by an authorized representative ofthe applicant. The Form PI-1V specifies additional support information which must be provided before the application is deemed complete. In orderto be granted aVERP, the owner or operator ofthe grandfathered facility shall submit information to the commission which demonstrates that all ofthe following are met.



### 45(1) Protection of public health and welfare. The emissions from the grandfathered facilitywill comply with all rules and regulations ofthe commission and with the intent ofthe TCM, including protection ofthe health and physical property ofthe people. (2) Measurement ofemissions. The VERP may have provisions for measuring the emission ofaircontaminants as determined by the commission. These may include the installation of sampling ports on exhaust stacks and construction ofsampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual," portable analyzers, or emissions calculations ifa known process variable is monitored. (3) Control method. (A) Control method in attainment areas. A grandfathered facility in an attainment area shall use an air pollution control method that is at least as beneficial as the best available control technology (BACT) thatthe commission required orwould have required for a facility of the same class ortype as a condition ofissuing a permit or permit amendment 120 months before the submittal ofthe VERP application considering the age and remaining useful life ofthe facility, except as provided by subparagraphs (8), (C), and 

### (0) ofthis paragraph. (8) Control method in nonattainment areas and the following attainment counties: Bexar, Gregg, Harrison, Nueces, Smith, Travis, and Victoria. A grandfathered facility located in a nonattainment area for a national ambient airquality standard, or a grandfathered facility which emits volatile organic compounds or nitrogen oxides in an attainment county listed in this'subparagraph, shall use the more stringent of: (i) a control method at least as beneficial as that described in sUbparagraph (A) ofthis paragraph; or 

### 46(ii) a control method that the commission finds is demonstrated to be generally achievable forfacilities in that area ofthe same type that are permitted underthis section, considering the age and remaining useful life ofthe facility. (C) Emissions reductions may be deferred at grandfathered facilities according to §116.816 ofthis title (relating to Deferral of Emission Reductions). (D) A VERP may be issued for a grandfathered facility: (i) that makes a good faith effort to make equipment improvements and emission reductions necessary to meetthe requirements ofsubparagraph (A) or (8) ofthis paragraph; (ii) that, in spite ofthe effort, cannot reduce the facility's emissions to the degree necessary for the issuance ofthe permit; and (iii) whose owner or operator acquires a sufficient numberofemission reduction credits underthe program established under §116.812 ofthis title (relating to Project Emission Reduction Credits) to offsetthe emissions exceeding those which would otherwise be allowed under subparagraph (A) or (8) ofthis paragraph. (4) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet at leastthe requirements of any applicable NSPS as listed underTitle 40 CFR Part 60, promulgated by EPA underauthority granted under FCAA, §111, as amended. (5) National Emission Standards for Hazardous Air Pollutants (NESHAPS). The emissions from each facility as defined in 40 CFR Part 61 will meet at leastthe requirements ofany 

### 47applicable NESHAPS, as listed under40 CFR Part 61, promulgated by EPA underauthority granted under FCAA, §112, as amended. (6) NESHAPS forsource categories. The emissions from each affected facility shall meet at leastthe requirements ofany applicable maximum available control technology (MACT) standard as listed under40 CFR Part63, promulgated by EPA under FCAA, §112, or as listed under Chapter 113, SubchapterC ofthis title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR 63)). (7) Performance demonstration. The grandfathered facility will achieve the performance specified in the permit application. The commission may require the applicant to submit additional engineering data afteraVERP has been issued in orderto demonstrate furtherthat the grandfathered facility will achieve the performance specified in the permit. In addition, the commission may require initial compliance testing to determine ongoing compliance through engineering calculations

. . . based on measured process variables, parametric or predictive monitoring, stack monitoring, orstack testing. (8) Nonattainment review. A grandfathered facility in a nonattainment area shall comply with all applicable requirements under Subchapter B, Division 5 ofthis chapter (relating to Nonattainment Review). (9) Prevention of Significant Deterioration (PSD) review. A grandfathered facility in an attainment area shall comply with all applicable requirements under Subchapter B, Division 6 ofthis chapter (relating to Prevention of Significant Deterioration Review).



### 48

### (10) Airdispersion modeling orambient monitoring. The commission may require computerized airdispersion modeling and/orambient monitoring to determine the airquality impacts from the grandfathered facility. (11) Federal standards of review for constructed or reconstructed majorsources of hazardous air pollutants. Ifthe grandfathered facility is an affected source (as defined in §115.15(1) of this title (relating to Section 112(g) Definitions)), the affected source shall comply with all applicable requirements underSubchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 53)). (12) Application content. In addition to any other requirements ofthis subchapter, the applicant shall: (A) identify each facility to be included in the VERP; (8) identify the air contaminants emitted; (C) provide emission rate calculations; (D) propose a control method; and (E) identify the date bywhich the control method will be implemented.



### 49

### §116.812. Project Emission Reduction Credits. (a) Project emission reduction credits (PERC) shall be granted to the owneror operator of a grandfathered facility forthe purpose ofcomplying with §116.811 (3)(D) ofthis title (relating to Voluntary Emission Reduction PermitApplication) ifthe owneroroperatorconducts an emission reduction project to compensate forthe facility's emissions exceeding the emission rate which would otherwise be required under §116.811(3) ofthis title, provided: (1) the emission reduction project reduces emissions in the airshed in which the grandfathered facility is located; and (2) the emission reduction project reduces net emissions from one or more sources in this state in an amount and type sufficientto prevent air pollution to a degree comparable to the amount ofthe reduction in the facility's emissions thatwould be necessary to comply with §116.811 (3) ofthis title. (b) Qualifying emission reduction projects include, but are not limited to: (1) generation ofelectric energy by a low-emission method, including: (A) wind power; (8) biomass gasification power; and (C) solar power; (2) the purchase and destruction ofhigh-emission automobiles or other mobile sources; 

### 50

### (3) the reduction ofemissions from a permitted facility that emits air contaminants to a level significantly belowthe levels necessary to comply with the facility's permit; (4) a carpooling oralternative transportation program forthe owner's oroperator's employees; (5) a telecommuting program forthe owner's oroperator's employees; and (6) the replacement by a motorvehicle fleet owneroroperatorofthe fleet's primary fuel to eithera lower-sulfurfuel than required by state orfederal law, orthe use ofan alternative fuel approved by the commission underTCAA, §382.131 (1). (c) Applications forvoluntary emission reduction permits (VERP) must demonstrate that any proposed PERCs meetthe following criteria, as applicable. The PERC must be: (1) enforceable by the commission; (2) permanent, meaning that the emission reduction is unchanging for the remaining life ofthe source; (3) quantifiable, so that the emission reduction can be measured or estimated with confidence using replicable techniques; (4) surplus, such thatthe emission reduction is not otherwise required ofa facility by a state orfederal law, regulation, oragreed order; and (5) a real reduction in which actual emissions are reduced. 

### 51(d) A VERP for a grandfathered facility participating in the PERC program will include a permit condition requiring the successful completion ofthe project or projects forwhich the facility owneror operatoracquires the credits. (e) Emission reduction credits acqUired underthis section are nottransferrable. 

### §116.813. Application Review Schedule. (a) The commission will reviewthe voluntary emission reduction permit (VERP) application in accordance with §116.114 ofthis title (relating to Application Review Schedule). (b) The commission will give priority to the processing ofan application forthe issuance ofa VERP under§116.811 ofthis title (relating to Voluntary Emission Reduction PermitApplication), the amendment ofa VERP under§116.820 ofthis title (relating to Modifications); orthe reneWal ofa VERP under§116.860 ofthis title (relating to Voluntary Emission Reduction Permit Renewal) for those grandfathered and formerly grandfathered facilities that are located less than two miles from the outer perimeterofa school, child day-care facility, hospital, or nursing home. 

### §116.814. General and Special Conditions. (a) Voluntary emission reduction permits (VERPs) may contain general and special conditions. The holders of aVERP shall comply with any and all such conditions. (b) Holders ofVERPs shall comply with the requirements of§116.115 ofthis title (relating to General and Special Conditions).

52

### §116.816. Deferral of Emission Reductions. (a) A voluntary emission reduction permit (VERP) may deferthe requirement to reduce emissions ofcertain aircontaminants. (b) To qualify fora deferral ofemission reductions, an applicant must specifically request a deferral of reductions ofcertain aircontaminants and shall demonstrate how substantial emission reductions will be made in otherspecific aircontaminants. (c) The commission may grant a deferral based on its prioritization ofair contaminants, as necessary, to meet local, regional, and statewide airquality needs and only ifthe applicant has clearly demonstrated that exceptional economic hardship orspecifictechnical impracticability problems are a barrierto implementing the reduction required by the VERP. (d) The commission will considerthe following criteria for prioritizing air quality needs to determine whetherto grant a deferral: (1) the location ofthe grandfathered facility; (2) the size ofthe reduction ofemissions ofotherspecific air contaminants and whether the reductions are in addition to the reductions that are required for otherspecific air contaminants by §116.811 (3) ofthis title (relating to Voluntary Emission Reduction PermitApplication); (3) the impact ofthe reduction ofemissions ofotherspecific air contaminants and the deferral on attaining National AmbientAir Quality Standards (NAAQS);



### 53(4) anticipated state orfederal regulations that may require reductions ofthe air contaminants being deferred; and (5) the benefit to public health from the reduction ofotherspecific aircontaminants versus the deferral. 

### §116.820. Modifications.

The owner oroperator planning the modification ofa facility permitted under a voluntary emission reduction permit must comply with Subchapter B ofthis chapter (relating t6 New Source Review Permits) before work is begun on the construction ofthe modification. 

### §116.840. Public Participalion for Iniliallssuance. (a) An applicant for a voluntary emission reduction permit (VERP) shall publish notice of intent to obtain the permit in accordance with Chapter 39, Subchapters Hand 

### Kofthis title (relating to Applicability and General Provisions; and Public Notice ofAirQuality Applications). (b) Any person who may be**affecte~** by emissions from a grandfathered facility may request the commission to hold a notice and comment hearing on the VERP application. The public comment period shall end 30 days afterthe pUblication of Notice of Receipt ofApplication and Intentto Obtain Permit under§39.418 ofthis title (relating to Notice of Receipt ofApplication and Intentto Obtain Permit). Any hearing request must be made in writing during the 30-day public comment period. (c) Any hearing regarding initial issuance ofa VERP shall be conducted underthe procedures in §116.841 ofthis title (relating to Notice and Comment Hearings for Initial Issuance) and not underthe APA. 54(d) The commission's response to public comments and the notice of its decision on whetherto issue ordeny a VERP will be conducted underthe procedures in §116.842 ofthis title (relating to Notice of Final Action). (e) A person affected by a decision to issue or deny a VERP may seek review, as appropriate, underthe appropriate procedure in Chapter50 ofthis title (relating to Action on Applications and Other Authorizations), and may seekjudicial review underTCAA, §382.032, relating to Appeal of Commission Action. 

### §116.841. Notice and Comment Hearings for Initial Issuance. (a) The notice and comment hearing requirements apply only to the initial issuance ofa voluntary emission reduction permit (VERP). (b) The commission shall decidewhetherto hold a hearing. The commission is not required to hold a hearing if it determines that the basis ofthe request by a person who may be affected by emissions from a grandfathered facility is unreasonable. Ifa hearing is requested by a person who may be affected by emissions from a grandfathered facility, and that request is reasonable, the commission will hold a hearing. (c) At the applicant's expense, notice ofa hearing on a draft permit must be published in the public notice section ofone issue ofa newspaperofgeneral circulation in the municipality in which the grandfathered facility is located, or in the municipality nearestto the location ofthe facility. The notice must be published at least 30 days before the date setforthe hearing. The notice must include the following: (1) the time, place, and nature ofthe hearing; 55(2) a briefdescription ofthe purpose ofthe hearing; and (3) the name and phone numberofthe commission office to be contacted to verify that a hearing will be held. (d) Any person, including the applicant, may submit oral orwritten statements and data concerning the draft permit. (1) The commission may set reasonable time limits for oral statements, and may require the submission ofstatements in writing. (2) The period forsubmitting written comments is automatically extended to the close of any hearing. (3) Atthe hearing, the commission may extend the period for submitting written comments beyond the close ofthe hearing. (e) The commission will make an audio recording orwritten transcript ofthe hearing available to the public. 

### (f) Any person, including the applicant, who believes that any condition ofthe draft permit is inappropriate orthatthe preliminary decision to issue or deny the permit is inappropriate, shall raise all issues and submit all arguments supporting that position by the end ofthe public comment period. (g) Any supporting materials for comments submitted undersubsection 

### (f) ofthis section must be included in full and may not be incorporated by reference, unless the materials are one ofthe following: 

### 56(1) already part ofthe administrative record in the same proceedings; (2) state orfederal statutes and regulations; (3) EPA documents ofgeneral applicability; or (4) othergenerally available reference materials. (h) The commission will keep a record ofall comments received and issues raised in the hearing. This record will be available to the public. (i) The draft permit may be changed based on comments pertaining to whetherthe permit provides for compliance with the requirements ofthis subchapter. 

## CD The commission will respond to comments consistentwith §116.842 ofthis title (relating to Notice of Final Action). 

### §116.842. Notice of Final Action. (a) Afterthe public comment period orthe conclusion ofany notice and comment hearing, the commission will send notice by first-class mail ofthe final action on the application to any person who commented during the public comment period oratthe hearing, and to the applicant. (b) The notice must include the following: (1) the response to any comments submitted during the public comment period;



### 57(2) identification ofany change in the conditions ofthe draft permit and the reasons for the change; and



### §116.850. Voluntary Emission Reduction PermitApplication Fee. Any person who applies for a voluntary emission reduction permit (VERP) shalf remit afee. (1) Ifthe grandfathered facility will use a control method at least as stringent as those defined in §116.811 (3)(A) or (8) ofthis title (relating to Voluntary Emission Reduction Permit Application), the application fee shall be $450. (2) Ifthe grandfathered facility will deferemission reductions under§116.811 (3)(C) of this title, or ifthe grandfathered facility will use emission reduction credits under§116.811 (3)(D) ofthis title, the application fee shalf be $1,000. (3) Only one ofthe applicable fees required in paragraphs (1) and (2) ofthis section shall be remitted with a single VERP application which proposes to control more than one facility at an account. Ifmore than one facility is included in a single VERP application, the applicant shalf remitthe highest ofthe applicable fees.



### 58(4) Notwithstanding paragraph (1) ofthis section, the maximum fee for aVERP for a small business, as defined in FCAA, §507(c), shall be $100, ifthe grandfathered facility will use a control method at least as stringent as those defined in §116.811 (3)(A) or (8) ofthis title. 

### §116.860. Voluntary Emission Reduction Permit Renewal. (a) Voluntary emission reduction permits (VERP) shall be renewed in accordance with Subchapter D ofthis chapter (relating to Permit Renewals). (b) To renew a VERP with credits acquired under§116.812 ofthis title (relating to Project Emission Reduction Credits) the owner oroperator ofthe facility shall have: (1) made equipment improvements or emission reductions necessary to meetthe requirements of §116.811 (3)ofthis title (relating to Voluntary Emission Reduction PermitApplication); or (2) acquired additional credits underthe program as necessary to meetthe permit requirements of §116.811(3) ofthis title. 

### §116.870. Delegation.

The commission may delegate to the executive directorthe authority to take any action on a voluntary emission reduction permit.



### 59

### SUBCHAPTER I: ELECTRIC GENERATING FACILITY PERMITS 

### §§116.910, 116.911, 116.913, 116.917, 116.918, 116.921, 116.926, 116.928, 116.930 §116.910. Applicability. (a) The owneroroperatorofa grandfathered electric generating facility (EGF) shall apply for a permit to operate thatfacility underthis sUbchapterand may apply for permit authorization to operate certain facilities (identified in §116.911(f) ofthis title (relating to Electric Generating Facility Permit Application)) that are located atthe same site as a grandfathered EGF. (b) Owners oroperators ofelecting EGFs opting to obtain allowances underChapter 101, SUbchapter H, Division 2 ofthis title (relating to Emissions Banking and Trading ofAllowances), shall submit a request to alter any related existing New Source Review (NSR) permits at the time of application for a permit undersubsection (a) ofthis section. Alterations must be consistent with the requirements of §116.116(c) ofthis title (relating to Changes to Facilities). (c) The owner, orthe operatorwho is authorized to act forthe owner. ofa grandfathered or electing EGF is responsible forcomplying with this subchapter. (d) A municipal corporation, electric cooperative, or river authority may exclude any EGF with a nameplate capacity of25 megawatts or less from this subchapter. The municipal corporation, electric cooperative, or river authority must notify the commission by January 1, 2000, of its intentto exclude those EGFs. Ifthe municipal corporation. electric cooperative. or riverauthority reevaluates its intentto exclude EGFs, it may choose to permit any ofthose EGFs consistentwith the requirements ofthis sUbchapter.

60(e) Owners oroperators ofgrandfathered facilities as defined in §116.1 0 ofthis title (relating to General Definitions) at sites with grandfathered orelecting EGFs subjectto this subchapter may consolidate any permit issued underChapter 116, Subchapter H ofthis title with a permit issued under this subchapter. 

### (f) A grandfathered EGF that generates electric energy primarily for internal use but that during 1997 sold, to a utility power distribution system, less than one-third of its potential electrical output capacity, or less than 219,000 megawatt-hours, is not required to obtain a permit underthis subchapter. 

### §116.911. Electric Generating Facility PermitApplication. (a) Owners or operators ofgrandfathered or electing electric generating facilities (EGF) shall submit an application to authorize nitrogen oxides (NOx) emissions and, ifapplicable, sulfur dioxide 

### (502) and particulate matter (PM) emissions. The application must include a completed Form PI-1-U, General Application. The Form PI-1-U must be signed by an authorized representative ofthe applicant. The Form PI-1-U specifies additional support information which must be provided before the application is deemed complete. In orderto be granted an electric generating facility permit (EGFP), the owner or operatorshall submit information to the commission which demonstrates that all ofthe following are met. (1) Measurement ofemissions and performance demonstration. Applicants must propose monitoring and reporting forthe measurement ofemissions and demonstration of performance consistentwith §116.914 ofthis title (relating to Emissions Monitoring and Reporting Requirements). (2) Control method. New control methods proposed in initial applications must comply with the requirements in §116.617(1), 

### (3), (4)(A), and 

### (8) and 

### (5) - (9) ofthis title (relating to Standard Permitfor Pollution Control Projects).

61(3) Airdispersion modeling orambient monitoring for poilution control projects. Computerized air dispersion modeling and/orambient monitoring may be required by the commission's Air Permits Division where there is an increase in emissions to determine: the airquality impacts from controls proposed under paragraph (2) ofthis subsection. (4) Opacity limitations for coal-fired grandfathered and electing EGFs. The coal-fired grandfathered and electing EGFs must meetthe opacity limitations of§111.111 ofthis title (relating to Requirements for Specified Sources). (b) Application information for electing EGFs. (1) In addition to the information required in this section, EGFP applications regarding electing EGFs shall contain the following information: (A) documentation ofthe emissions from the 1997 Emissions Scorecard froni the EPAAcid Rain Program, or ifthat information is notavailable, the actual emissions from that electing EGF for calendaryear 1997; (B) documentation offuel consumption, fuel heating values, and heat input in millions of British thermal units (MMBtu) for calendaryear 1997; (C) identification ofthe electing EGFs to be included. (2) Emissions ofair contaminants from electing EGFs otherthan NOx, and ifapplicable, S02 and PM, already authorized by Chapter 116 ofthis title (relating to Control ofAir Pollution by Permits for New Construction or Modification), will not be authorized underthis subchapter.



### 62(c) The owneroroperatorofa grandfathered or electing EGF must submit an application for a permit underthis sUbchapter on or before September 1, 2000. (d) Any grandfathered natural gas-fired EGF forwhich a permit application was filed under subsection (a) ofthis section, orforwhich a permit has been obtained in accordance with subsection (a) ofthis section, orwhich is excluded in accordance with §116.910(d) ofthis title (relating to Applicability) from the requirement to submit an application undersubsection (a) ofthis section is considered permitted forthe emissions ofall aircontaminants from that EGF. 

### (e) An owner or operator of a grandfathered coal-fired EGF with a permit issued in accordance with subsection (a) ofthis section orwith an application pending undersubsection (a) ofthis section may submit an application for an EGFP in accordance with to §116.917 ofthis title (relating to Electric Generating Facility PermitApplication for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites) to authorize the emissions ofall criteria pollutants from the EGF otherthan NOx, S02' and PM as it relates to opacity. 

### (f) An owner or operator ofa grandfathered or electing EGF with a permit application pending under subsection (a) ofthis section or a permit issued in accordance with subsection (a) ofthis section may submit an application for an EGFP in accordance with §116.917 ofthis title to also authorize each ofthe following types offacilities that are located at the same site as the EGF: (1) a generatorthat does not generate electric energy for compensation and is used not more than 10% ofthe normal annual operating schedule; or (2) an auxiliary fossil-fuel-fired combustion facility that does notgenerate electric energy and does not emit more than 100 tons peryearofany aircontaminant.



### 63(g) Any application submitted in accordance with §116.917 ofthis title forfacilities identified in subsection (e) ofthis section must be submitted by September 1,2003. Any application submitted in accordance with §116.917 ofthis title for facilities identified in subsection (f)(1) or (2) ofthis section must be submitted by September 1, 2002. Any additional controls specified in an EGF permit issued in accordance with an application filed under§116.917 ofthis title are subject to the schedule outlined in §116.771 ofthis title (relating to Implementation Schedule forAdditional Controls.) (h) Emissions ofaircontaminants from facilities identified in subsection (f)(1) or (2) ofthis section must be included in each applicable emissions allowance trading program underChapter 101, Subchapter H, Division 2 ofthis title (relating to Emissions Banking and Trading Allowances). The commission will not issue any new emissions allowance forthe emissions ofany aircontaminant from such a facility. (i) All applications for an EGFP shall be submitted underthe seal ofa Texas licensed professional engineer if required by §116.110(e) ofthis title (relating to Applicability). 

### §116.913. General and Special Conditions. (a) The following general conditions shall be applicable to every electric generating facility permit (EGFP) unless otherwise specified in the permit. (1) A permit issued underthis subchapter may authorize the following: (A) for grandfathered natural gas-fired electric generating facilities (EGFs), emissions ofall aircontaminants;



### 64

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

### emissions, sulfur dioxide (S02) emissions, and particulate matter (PM) through opacity limitations as specified in §111.111 ofthis title (relating to Requirements for Specified Sources); (C) for electing natural gas-fired EGFs, allowances for NOx 

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

### emissions, allowances for S02 emissions, and PM through opacity limitations as specified in §111.111 ofthis title; and (E) for facilities identified in §116.917(a) ofthis title (relating to Electric Generating Facility PermitApplication for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites), emissions ofall criteria pollutants. (2) Permits for grandfathered facilities as defined in §116.10 ofthis title (relating to General Definitions) at sites with grandfathered or electing EGFs and permitted under Subchapter H of this chapter (relating to Permits for Grandfathered Facilities) may be consolidated with a permit issued underthis subchapter. (3) The owneroroperatorofa grandfathered EGF, an electing EGF, and ifapplicable, any facility included in an EGFP under§116.917 ofthis title, must comply with Chapter 101, Subchapter H, Division 2 ofthis title (relating to Emissions Banking and Trading ofAllowances) inclUding the requirementto maintain allowances in a compliance account. Allowances may be transferred in accordance with §1 01.335 ofthis title (relating to Allowance Banking and Trading). (4) Mass emission monitoring and reporting shall be conducted in accordance with §116.914 ofthis title (relating to Emissions Monitoring and Reporting Requirements). 65(5) On June 1 after every control period, the owneroroperatorshall hold a quantity of allowances for emissions of NOxand, where applicable, S02' in its compliance account that is equal to orgreaterthan the total emissions ofthat aircontaminant emitted during the prior control period for each EGF permitted in accordance with §116.911 (a) and (b) ofthis title (relating to Electric Generating Facility PermitApplication) and foreach facility permitted in accordance with §116.917 ofthis title. (6) Owners oroperators shall submit a report ofthe amount ofemissions ofeach· allocated aircontaminant, from the prior control period to the Air Permits Division consistentwith the requirements of§101.336(b) o.fthis title (relating to Emission Monitoring, Compliance Demonstration, and Reporting). (7) Coal-fired grandfathered and electing EGFs must meetthe opacity limitations of §111.111 ofthis title. (8) Natural gas-fired EGFs thatwere designed to also burn fuel oil may burn any American Society forTesting and Materials (ASTM) grade fuel oil or mixture ofASTM grade fuel oils containing not more than 0.7% sulfur by weight as determined by ASTM Method D 396. Burning offuel oil does not relieve the owner or operator ofthe EGF from the responsibility to comply with the emission limitations, allowances, orconditions ofany permit orstate orfederal regulation. The burning ofwaste or used oils is not authorized by this SUbchapter. (9) Owners oroperators of natural gas fired EGFs thatwere designed to also burn fuel oil shall submit an annual reportforthe EGFs that burned fuel oil during each control period. The report shall include the names ofthe unit(s) burning fuel oil, the date(s) thatfuel oil is burned, the amount of fuel oil burned, and the ASTM grade(s) ofthe fuel oil orfuel oil mixture that is burned. This report shall be included with the report required by §101.336(b) ofthis title (relating to Emission Monitoring, Compliance Demonstration, and Reporting). 66(b) Special conditions may be included in the EGFP. 

### §116.917. Electric Generating Facility PermitApplication for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites. (a) Any application for an electric generating facility permit (EGFP) foradditional criteria pollutants from grandfathered coal-fired electric generating facilities (EGFs) identified in §116.911 (e) of this title (relating to Electric Generating Facility PermitApplication) orfor grandfathered facilities identified in §116.911 (f)(1) or (2) ofthis title (relating to Electric Generating Facility PermitApplication) must include a completed Form PI-1G, Grandfathered Facility PermitApplication. The Form PI-1G must be signed by an authorized representative ofthe applicant. The Form PI-1G specifies additional support information which must be provided before the application is deemed complete. In orderto be granted a permit fora grandfathered facility underthis section, the owneroroperatorofthe grandfathered facility shall submit information to the commission which demonstrates that all ofthe following are met. (1) Protection of public health and welfare. The emissions from the grandfathered facility will comply with all rules and regulations ofthe commission and with the intent ofthe TCAA, including protection ofthe health and physical property ofthe people. (2) Measurementofemissions. The EGFP may have provisions for measuring the emission ofaircontaminants as determined by the commission. These may include the installation of sampling ports on exhaust stacks and construction ofsampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual," portable analyzers, oremissions calculations ifa known process variable is monitored.



### 67(3) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet at leastthe requirements of any applicable NSPS as listed under40 CFR Part60, promulgated by the EPA underauthority granted in accordance with FCAA, §111 as amended. (4) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from each facility as defined in 40 CFR Part61 will meet at leastthe requirements ofany applicable NESHAP, as listed under40 CFR Part 61, promulgated by the EPA underauthority granted in accordance with FCAA, §112, as amended. (5) NESHAPs forsource categories. The emissions from each affected facility shall meet at leastthe requirements ofany applicable maximum achievable control technology (MACT) standard as listed under40 CFR Part 63, promulgated by the EPA in accordance with FCAA, §112, oras listed underChapter 113, SUbchapter C ofthis title (relating to National Emission Standards for. Hazardous Air Pollutants for Source Categories (FCAA, Section 112, 40 CFR 63)). (6) Performance demonstration. The grandfathered facility will achieve the performance specified in the permit application. The commission may require the applicant to submit additional engineering data afteran EGFP has been issued in orderto demonstrate further that the grandfathered facility will achieve the performance specified in the permit. In addition, the commission may require initial compliance testing to determine ongoing compliance through engineering calculations based on measured process variables, parametric or predictive monitoring, stack monitoring, or stack testing. (7) Nonattainment review. A grandfathered facility in a nonattainment area shall comply with all applicable requirements under SUbchapter 8, Division 5 ofthis chapter (relating to Nonattainment Review). 

### 68

### (8) Prevention ofSignificant Deterioration (PSD) review. A grandfathered facility in an attainment area shall comply with all applicable requirements underSubchapter 

### 8, Division 6 ofthis chapter (relating to Prevention ofSignificant Deterioration Review). (9) Airdispersion modeling orambient monitoring. The commission may require computerized airdispersion modeling and/orambient monitoring to determine the airquality impacts from the grandfathered facility. (10) Federal standards of review for constructed or reconstructed majorsources of hazardous air pollutants. Ifthe grandfathered facility is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions», the affected source shall comply with all applicable requirements underSubchapterC ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed MajorSources (FCAA, Section 112(g), 40 CFR Part 63». (11) Application content. In addition to any other requirements ofthis subchapter, the applicant shall: (A) identify each facility to be included in the electr.ic generating facility permit; 

### (8) identify the air contaminants emitted; and (C) provide emission rate calculations. (b) Upon request, the commission shall consolidate an application submitted in accordance with this section with an application pending in accordance with §116.911 (a) ofthis title.

69(c) Applications submitted in accordance with this section are subject to the requirements of §116.920 ofthis title (relating to Public Participation for Initial Issuance). 

### §116.918. Additional General and Special Conditions for Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites. (a) Permits issued to facilities submitting applications under§116.917 ofthis title (relating to Electric Generating Facility PermitApplication for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating FacilitY Sites) may contain general and special conditions. The holders ofa permit underthis subchaptershall comply with any and all such conditions. (b) General conditions. Holders of permits issued to facilities sUbmitting applications in accordance with §116.917 ofthis title shall comply with the following general conditions, regardless of whetherthey are specifically stated within the permit document. (1) Sampling requirements. (A) Ifsampling is required, the permit holdershall contact the commission's Office ofCompliance and Enforcement priorto sampling to obtain the properdata forms and procedures. (8) All sampling and testing proCedures must be approved by the executive directorand coordinated with the regional representatives ofthe commission.

70

### (C) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations orcontracting with an independent sampling consultant. (2) Equivalency of methods. The permit holder must demonstrate or otherwisejustify the equivalency ofemission control methods, sampling orotheremission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions ofthe permit. Alternative methods shall be applied for in writing and must be reviewed and approved bythe executive director priorto their use in fulfilling any requirements ofthe permit. (3) Recordkeeping. The permit holdershall: (A) maintain a copy ofthe permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours; (8) keep all required records in a file at the plant site. If, however, the facility normally operates unattended, records shall be maintained at the nearest staffed location within the State ofTexas specified in the application; 

### (C) make the records available at the request of personnel from the commission or any air pollution control program havingjurisdiction; (D) comply with any additional recordkeeping requirements specified in special conditions attached to the permit; and (E) retain information in the file forat leasttwo years following the date that the information or data is obtained. 

### 71(4) Maximum allowable emission rates. The total emissions ofair contaminants from any ofthe sources ofemissions must not exceed the values stated on the table attached to the permit



# - entitled "Emission Sources-Maximum Allowable Emission Rates." (5) Maintenance ofemission control. The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holdershall provide notification for upset and maintenance in accordance with §1 01.6 and §1 01.7 ofthis title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements). (6) Compliance with rules. (A) Acceptance ofa permit by an applicant constitutes an acknowledgment and agreementthatthe permit holderwill comply with all rules, regulations, and orders ofthe commission issued in conformity with the TCM and the conditions precedentto the granting ofthe permit. (8) If more than one state orfederal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated. (C) Acceptance includes consent to the entrance ofcommission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of aircontaminants, including compliance with the permit. (c) Special conditions. The holders of permits issued underthis subchapter shall comply with all special conditions contained in the permit document. 72

### (1) Special conditions may be attached to a permitthat are more restrictive than the requirements ofthis title. (2) Special condition forwritten approval. (A) The executive director may require as a special condition that the permit holderobtain written approval before constructing a source under: (i) a standard permit in accordance with Subchapter F ofthis chapter (relating to Standard Permits); or(ii) a permit by rule underChapter 106 ofthis title (relating to Permits by Rule).

. (8) Such written approval may be required ifthe executive directorspecifically finds that an increase ofa particular pollutant could either: (i) result in a significant impact on the air environment; or (ii) cause the facility to become subject to review under: (I) SubchapterC ofthis chapter {relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed MajorSources (FCAA, Section 112{g), 40 CFR Part63)); or



### 73(II) the provisions in Subchapter S, Division 5 ofthis chapter (relating to Nonattainment Review) and Subchapter S, Division 6 ofthis chapter (relating to Prevention ofSignificant Deterioration Review). 

### §116.921. Notice and Comment Hearings for Initial Issuance. (a) The notice and comment hearing requirements apply only to the initial issuance ofan electric generating facility permit (EGFP). (b) The commission shall decidewhetherto hold a hearing. The commission is not required to hold a hearing ifthe basis ofthe request by a person who may be affected by emissions from a grandfathered or electing electric generating facility (EGF) or a facility described in §116.911 (f) ofthis title (relating to Electric Generating Facility PermitApplication) is determined to be unreasonable. Ifa hearing is requested by a person who may be affected by emissions from a grandfathered or electing

. EGF ora facility described in §116.911 (f) ofthis title, and that request is reasonable, the commission

shall hold a hearing. (c) At the applicant's expense, notice ofa hearing on a draft EGFP must be published in the public notice section ofone issue ofa newspaperofgeneral circulation in the municipality in which the grandfathered or electing EGF or a facility described in §116.911 

### (f) ofthis title is located, or in the municipality nearestto the location ofthe grandfathered orelecting EGF or a facility described in §116.911(f) ofthis title. The notice must be published at least 30 days before the date set forthe hearing. The notice must include the following: (1) the time, place, and nature ofthe hearing; (2) a briefdescription ofthe purpose ofthe hearing; and 

### 74(3) the name and phone numberofthe commission office to be contacted to verify that a hearing will be held. (d) Any person, including the applicant, may submit oral orwritten statements and data concerning the draft EGFP. (1) Reasonable time limits may be setfororal statements, and the submission of statements in writing may be required. (2) The period for submitting written comments is automatically extended to the close of any hearing. (3) At the hearing, the period for submitting written comments may be extended beyond the close ofthe hearing. (e) A tape recording orwritten transcript ofthe hearing must be made available to the pUblic. 

### (f) Any person, including the applicant, who believes that any condition ofthe draft EGFP is inappropriate orthat the preliminary decision to issue or deny the permit is inappropriate, shall raise all issues and submit all arguments supporting that position by the end ofthe public comment period. (g) Any supporting materials for comments submitted undersubsection 

### (f) ofthis section must be included in full and may not be incorporated by reference, unless the materials are one ofthe following: (1) already part ofthe administrative record in the same proceedings;



### 75(2) state orfederal statutes and regulations; (3) EPAdocuments ofgeneral applicability; or (4) othergenerally available reference materials. (h) The commission shall keep a record ofall comments received and issues raised in the hearing. This record is available to the pUblic.



## . (i) The draft EGFP may be changed based on comments pertaining to whetherthe permit provides for compliance with the requirements ofthis subchapter. 

### 0) The commission shall respond to comments consistentwith §116.922 ofthis title (relating to Notice of Final Action). 

### §116.926. Permit Fee. (a) Fees required. Any person who applies fora permit in accordance with §116.917 ofthis title (relating to Electric Generating Facility PermitApplication for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites) must remit a fee of$450 at the time ofapplication for such permit. Ifthe facility is a small business stationary source facility, as defined in TCAA, §382.0365(h), the fee shall be $100. (b) Payment offees. All permitfees must be remitted in the form ofa check or money order made payable to the Texas Natural Resource Conservation Commission and delivered to Texas Natural Resource Conservation Commission, P. O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the commission will begin examination ofthe application. 76(c) Return offees. Fees must be paid atthe time an application for a permit is submitted in accordance with this subchapter. Ifthe applicantwithdraws the application priorto issuance ofthe permit, one-halfofthe fee will be refunded, exceptthatthe entire fee will be refunded for any such application forwhich a permit by rule in accordancewith Chapter 106 ofthis title (relating to Permits by Rule) is allowed. No fees will be refunded aftera deficient application has been voided, denied, or after a permit has been issued by the commission. 

### §116.928. Delegation.

The commission delegates to the executive directorthe authority to take any action on a permit issued underthis subchapter. Section 116.922(b)(3) ofthis title (relating to Notice of Final Action) provides notification that any person affected by a decision ofthe commission may petition for rehearing. Notwithstanding §116.922{b){3) ofthis title, any Notice of Final Action sent regarding a permit action underthis SUbchapterwill state that a person affected by a decision ofthe executive director may file a motion to overturn the executive director's decision under§50.139 ofthis title (relating to Motion to Overturn Executive Director's Decision) ratherthan a petition for rehearing. 

### §116.930. Amendments and Alterations of Permits Issued Underthis Subchapter.

The owner or operator planning a modification ofa facility permitted underthis subchapter must comply with Subchapter B ofthis chapter (relating to New Source Review Permits) before work is begun on the construction ofthe modification. Amendments and alterations for permits issued in accordance with this subchapter are subjectto the requirements of Subchapter B ofthis chapter.



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