Robert J. Huston, Chairman

R. B. "Ralph" Marquez, Commissioner

Kathleen Hartnett White, Commissioner

Jeffrey A Saitas, Executive Director

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02 AUG -1 AM 9: 23

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

Protecting Texas by Reducing and Preventing Pollution

July 31, 2002

Mr. Gregg Cooke

Regional Administrator

U.S. Environmental Protection Agency, Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Mr. Cooke:

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

revisions to the State Implementation Plan (SIP).

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

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

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

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

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

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

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

I are being submitted as a revision to the SIP.

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

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

revisions.

ly,

Chairman

RJH/js

cc: The Honorable Rick Perry, Governor of Texas

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

Governor '

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

Commission

Enclosures

- . P.O. Box 13087 • Austin, Texas 78711-3087 • 5121239-1000 • Internet address: www.tnrcc.state.tx.us

prinkJ un r~·cyd~J p<lper lIsing soy-bJ:.eJ ink
Mr. Gregg Cooke

Page 2

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

Assessment

Mr. Jim Muse, Director, Policy and Regulations Division

Ms. Heather Evans, Strategic Assessment Division

Ms. Jill Burditt, Policy and Regulations Division

OEPAA file
Texas Natural Resource

Conservation Commission

Public Hearings

January 22-24, 28, 29, 2002

Concerning revisions to 30 TAC Chapter 116,

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

New Construction or Modification; and Chapter 39, Subchapter H

and Subchapter K, concerning Public Notice; and a revision

to the state implementation plan

Rule Log Number 2001-076-116-AI
INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations

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

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

RECOMMENDATIONS
CHAPTER 39: PUBLIC NOTICE

SUBCHAPTER H: APPLICABILITY AND 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) of this title (relating to Applicability), Subchapters H - M of this

chapter also apply to:

(1) applications for permits for electric generating facilities under Texas Health and

Safety Code, §382.05185(c) and (d);

(2) applications for existing facility permits under Texas Health and Safety Code,

§382.05183; and

(3) applications for pipeline facilities permits under Texas Health and Safety Code,

§382.05186.

(b) Applications for initial issuance of permits under Texas Health and Safety Code,

§§382.05183, 382.05185(c) and (d), and 382.05186 are subject only to §39.401 of this title (relating to

Purpose), §39.405 of this title (relating to General Notice.Provisions), §39.407 of this title (relating to

Mailing Lists), §39.409 of this title (relating to Deadline for Public Comment, and for Requests for

Reconsideration, Contested Case Hearing, or Notice and Comment Hearing), §39.411 of this title,

§39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit), §39.420 of

this title (relating to Transmittal of the Executive Director's Response to Comments and Decision),

§39.601 of this title (relating to Applicability), §39.602 of this title (relating to Mailed Notice), §39.603 of

1
this title (relating to Newspaper Notice), §39.604 of this title (relating to Sign-Posting), §39.605 of this

title (relating to Notice to Affected Agencies), and §39.606 of this title (relating to Alternative Means of

Notice for Voluntary Emission Reduction Permits), except that any reference to requests for

reconsideration or contested case hearings in §39.409 of this title or §39.411 of this 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 of application and intent to obtain permit by publication or by mail is

required by Subchapters H - L of this chapter (relating to Applicability and General Provisions, Public

Notice of Solid Waste Applications, Public Notice of Water Quality Applications and Water Quality

Management Plans, Public Notice of Air Quality Applications, and Public Not,ice .of Injection Well and

Other Specific Applications), Subchapter G of this chapter (relating to Public Notice for Applications for

Consolidated Permits), or for Subchapter M of this chapter (relating to Mailed Notice for Radioactive

Material Licenses), the text of the notice must include the following information:

(1) the name and address of the agency and the telephone number of an agency

contact from whom interested persons may obtain further information;

(2) the name, address, and telephone number of the applicant and a description of the

manner in which a person may contact the applicant for further information;

(3) a brief description of the location and nature of the proposed activity;

(4) a brief description of public comment procedures, including:

2
(A) a statement that the executive director will respond to comments raising

issues that are relevant and material or otherwise significant; and

(8) a statement in the notice for any permit application for which 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 if a

contested case hearing is granted.

(5) a brief description of procedures by which the public may participate in the final

permit decision and, if applicable, how to request a public meeting, contested case hearing,

reconsideration of the 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 or size that clearly

provides emphasis and distinguishes it from the remainder of the notice. The notice should include a

statement that a public meeting, will be held by the executive director if requested by a member of the

legislature who represents the general area where the facility is to be located or there is substantial

public interest in the proposed activity;

(6) the application or permit number;

(7) if applicable, a statement thatthe application or requested action is sUbject to the

Coastal Management Program and must be consistent with 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, at which a copy of the application is available for review and copying;

3
(9) a description of the procedure by which a person may be placed on a mailing list in

order to receive additional information about the application;

(10) for notices of air applications:

(A) at a minimum, a listing of criteria pollutants for which 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 of this title (relating to Control of Air Pollution

from Visible Emissions and Particulate Matter, Control of Air Pollution from Sulfur Compounds, Control

of Air Pollution from Toxic Materials, Control of Air Pollution from Volatile Organic Compounds, and

Control of Air Pollution from Nitrogen Compounds);

(8) if notice is for applications described in §39.403(b)(11) or (12) of this title

(relating to Applicability), or §39A04 of this 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 other air application the following

information which must be printed in a font style or size that clearly provides emphasis and distinguishes

it from the remainder of the 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 statement that a contested case hearing request must include the

requester's location relative to the proposed facility or activity;

4
(iii) a statement that a contested case hearing request should include a

description of how the requestor will be adversely affected by the proposed facility or activity in a manner

not common to the general public, including a description of the requestor's uses of property which may

be impacted by the proposed facility or activity; and

(iv) and that only relevant and material issues raised during the

comment period can be considered if a 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, if any exists, is available for

public review in the regional office of the 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 of the 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 of this title (relating to

Radioactive Substance Rules), if applicable, a statement that 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 of the permit being modified is available from the

agency contact person."

(c) Unless mailed notice is otherwise provided for under this section, the chief clerk shall mail

Notice of Application and Preliminary Decision to those listed in §39.413 of this title (relating to Mailed

Notice). When notice of application and preliminary decision by publication or by mail is required by

Subchapters G-L of this chapter, the text of the notice must include the following information:

(1) the information reqUired by subsection (b)(1) - (12) of this section;

(2) a brief description of public comment procedures, including a description of the

manner in which comments regarding the executive directors preliminary decision may be submitted, or

.. a sta.tement in the notice for any permit application for which there is an opportunity for contested case

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 it from the remainder of the notice;

(3) if the application is subject to final approval by the executive director under Chapter

50 of this title (relating to Action on Applications), a statement that the executive director may issue final

approval of the application unless a timely contested case hearing request or a timely request for

reconsideration (if applicable) is filed with the chief clerk after transmittal of the executive director's

decision and response to public comment;

(4) a summary of the executive director's preliminary decision and whether the

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, at which a copy of the 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 statement that a public meeting will be held by the executive director if requested by a member

of the legislature who represents the general area where the facility is to be located or there is

substantial public interest in the proposed activity;

(7) for radioactive material licenses under Chapter 336 of this title (relating to

Radioactive Substance Rules), if applicable, a statement that 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.

(d) When notice of a public meeting or notice of a hearing by publication or by mail is required

by SUbchapters G - L of this chapter, the text of the notice must include the following information:

(1) the information required by subsection (b)(1) - (3), (6) - (8), and (12) of this section;

(2) the date, time, and place of the meeting or hearing, and a brief description of the

nature and purpose of the meeting or hearing, including the applicable rules and procedures;

(3) for notices of public meetings only. a brief description of public comment

procedures, including a description of the manner in which comments regarding the executive director's

preliminary decision may be submitted and a statement in the notice for any permit application for which

there is an opportunity for contested case hearing, that only relevant and material issues raised during

the comment period can be considered if a contested case hearing is granted.

7
§39.419. Notice of Application and Preliminary Decision.

(a) After technical review is complete, the executive director shall file the preliminary decision

and the draft permit with the chief clerk, except for air applications under subsection (e){1) of this

section. The chief clerk shall mail the preliminary decision concurrently with the Notice of Application

and Preliminary Decision. Then, when this chapter requires notice under this section, notice shall be

given as required by subsections (b) - (e) of this section.

(b) The applicant shall publish Notice of Application and Preliminary Decision at least once in

the same newspaper as the Notice of Receipt of Application and Intent to Obtain Permit, unless there

are different requirements in this section or a specific subchapter in this chapter for a particular type of

permit.

(c) Unless mailed n~tice is otherwise provided under this section, the chief clerk shall mail

Notice of Application and Preliminary Decision to those listed in §39.413 of this title (relating to Mailed

Notice).

(d) The notice must include the information required by §39.411 (c) of this title.

(e) For air applications:

(1) the applicant is not required to publish Notice of Application and Preliminary

Decision, if:

(A) no hearing request is submitted in response to the Notice of Receipt of

Application and Intent to Obtain Permit;

8
(8) a hearing request is submitted in response to the Notice of Receipt of

Application and Intent to Obtain Permit and the request is withdrawn before the date the preliminary

decision is issued;

(C) the application is for any amendment, modification, or renewal application

that would not result in an increase in allowable emissions and would not result in the emission of an air

contaminant not previously emitted unless the application involves a facility for which the applicant's

compliance history contains violations which are unresolved and which constitute a recurring pattern of

egregious conduct which demonstrates a consistent disregard for the regulatory process, including the

failure to make a timely and substantial attempt to correct the violations; or

(D) the application is for initial issuance of a permit described in §39.403(b)(11)

or (12) of this title (related to Applicability) or §39.404 of this title (relating toApplicability for Certain

Initial Applications for Air Quality Permits for Grandfathered Facilities);

(2) If notice under this section is required, the agency shall mail notice according to

§39.602 of this title (relating to Mailed Notice); and

(3) Notice of Application and Preliminary Decision shall be published as specified in

SUbchapter K of this chapter (relating to Public Notification of Air Quality Applications) for permits that

are not exempt under paragraph (1)(A) - (D) of this subsection or are for the following federal

preconstruction approvals:

(A) applications under Chapter 116, Subchapter 8, Division 5 of this title

(relating to Nonattainment Review);

9
(8) applications under Chapter 116, Subchapter 8, Division 6 of this title

(relating to Prevention of Significant Deterioration Review); and

(C) applications under Chapter 116, SUbchapter C of this title (relating to

Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA,

§112(g), 40 CFR Part 63)).

§39.420. Transmittal of the Executive Director's Response to Comments and Decision.

(a) When required by and subject to §55.156 of this title (relating to Public Comment

Processing), after the close of the comment period, the chief clerk shall transmit to the people listed in

subsection (b) of this 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) of this section:

(1) the applicant;

(2) any person who requested to be on the mailing list for the permit action;

10
(3) any person who submitted comments during the public comment period;

(4) any person who timely filed a request for a contested case hearing;

(5) Office of the Public Interest Counsel; and

(6) Office of Public Assistance.

(c) For air applications which meet the following conditions, items listed in subsection (a)(3) and

(4) of this section are not required to be included in the transmittals:

(1) applications for initial issuance of permits under Texas Health and Safety Code,

§§382.05183, 382.05185(c) and (d), 382.05186 and 382.0519;

(2)· applications for initial issuance of electric generating facility permits under Texas

Utilities Code, §39.264;

(3) applications for which no timely hearing request is submitted in response to the

Notice of Receipt of Application and Intent to Obtain a Permit;

(4) applications for which a timely hearing request is submitted in response to the

Notice of Receipt of Application and Intent to 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 that would

not result in an increase in allowable emissions and would not result in the emission of an air

contaminant not previously emitted unless the application involves a facility for which the applicant's

11
compliance history contains violations which are unresolved and which constitute a recurring pattern of

egregious conduct which demonstrates a consistent disregard for the regulatory process, including the

failure to make a timely and substantial attempt to correct the violations.

(d) For applications for which all timely commen~s and requests have been withdrawn before

the filing of the executive director's response to comments, the chief clerk shall transmit only the items

listed in subsection (a)(1) and (2) of this section and the executive director may act on the application

under §50.133 of this title (relating to Executive Director Action on Application or WQMP Update).

12
SUBCHAPTER K: PUBLIC NOTICE OF AIR QUALITY APPLICATIONS

§§39.603, 39.604, 39.606

§39.603. Newspaper Notice.

(a) Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title

(relating to Notice of Receipt of Application and Intent to Obtain Permit) is required to be published no

later than 30 days after the executive director declares an application administratively complete. This

notice must contain the text as required by §39.411 (b)(1) - (6) and (8) - (10) of this title (relating to Text

of Public Notice).

(b) Notice of Application and Preliminary Decision under §39.419 of this title (relating to Notice

of Application and Preliminary Decision) is required to be published within 33 days after the chief clerk

has mailed the preliminary decision concurrently with the Notice of Application and Preliminary Decision

to the applicant. This notice must contain the text as required by §39.411 (c)(1) - (6) of this title (relating

to Text of Public Notice).

(c) General newspaper notice. Unless otherwise specified, when this chapter requires

published notice of an air application, the applicant shall publish notice in a newspaper of general

circulation in the municipality in which the facility is located or is proposed to be located or in the

municipality nearest to the location or proposed location of the facility, as follows.

(1) One notice shall be published in the public notice section of the newspaper and shall

comply with §39.411 of this title (relating to Text of Notice).

13
(2) Another notice with a total size of at least 6 column inches, with a vertical dimension

of at least 3 inches and a horizontal dimension of at least 2 column widths, or a size of at least 12 square

inches, shall be pUblished in a prominent location elsewhere in the same issue of the newspaper. This

notice shall contain the following information:

(A) permit application number;

(B) company name;

(C) type of facility;

(D) description of the location of the facility; and

(E) a note that additional information is in the pUblic,notice section of the same

issue.

(d) Alternative language newspaper notice.

(1) This subsection applies whenever notice is required to be pUblished under §39.418

of this tit/e, §39.419 of this title, and this section and either the elementary or middle school nearest to

the facility or proposed facility is required to provide a bilingual education program as required by Texas

Education Code, Chapter 29, Subchapter B, and 19 TAC §89.1205(a) (relating to Required Bilingual

Education and English as a Second Language Programs) and one of the 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 of this 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 not trigger the

requirements of this subsection.

(3) The notice shall be published in a newspaper or publication that is published

primarily in the alternative languages in which the bilingual education program is or would have been

taught, and the notice must be in those languages.

(4) The newspaper or publication must be of general circulation in the municipality or

county in which the facility is located or proposed to be located. Notice under this subsection shall only

be required to be published within the United States.

(5) The requirements of this subsection are waived for each language in which no

publication exists, or if the publishers of all alternative language publications refuse to publish the notice.

If the alternative language publication is published less frequently than once a month, this notice

requirement may be waived by the executive director on a cas'e-by-case basis.

(6) Each alternative language publication shall follow the requirements of this chapter

that are consistent with this section.

15
(7) If a waiver is received under this section, the applicant shall complete a verification

and submit it as required under §39.605(3) of this title (relating to Notice to Affected Agencies).

(e) Alternative publication procedures for small businesses.

(1) The applicant does not have to comply with subsection (c)(2) of this section if all of

the following conditions are met:

(A) the applicant and source meets the definition of a small business stationary

source in §382.0365 of the Texas Health and Safety Code including, but not limited to, those which:

(i) are not a major stationary source for federal air quality permitting;

(ii) do not emit 50 tons or more per year of any regulated air pollutant;

(iii) emit less than 75 tons per year of all regulated air pollutants

combined; and

(iv) are owned or operated by a person that employs 100 or fewer

individuals; and

(8) if the applicant's site meets the emission limits in §106.4(a) of this title

(relating to Requirements for Exemption from Permitting) it will 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,

16
nearest city, county, date public notice authorized, information on comment periods, and information on

how to contact the agency for further information.

(f) If an air application is referred to SOAH for a contested case hearing under Chapter 80 of

this title (relating to Contested Case Hearings), the applicant shall publish notice once in a newspaper as

described in (c) of this section, containing the information under §39.411 (d) of this title. This notice shall

be published and affidavits filed with the chief clerk no later than 30 days before the scheduled date of

the hearing.

§39.604. Sign-Posting.

(a) At the applicant's expense, a sign or signs shall be placed at the site of the existing or

proposed facility declaring the filing of an application for a permit and stating the manner in which the

commission may be contacted for further informatiQn.Such signs shall beprovided by the applicant and

shall sUbstantially meet the following requirements:

(1) Signs shall consist of dark 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 number of the permit

application. More than one application number may be included on the signs if the respective pUblic

comment periods coincide;

(4) Signs shall include the words "for further information contact";

(5) Signs shall include the words "Texas Natural Resource Conservation Commission,"

and the address of the appropriate commission regional office;

(6) Signs shall include the telephone number of the appropriate commission office;

(b) The sign or signs must be in place by the date of publication of the Notice of Receipt of

Application and Intent to Obtain Permit and must remain in place and legible throughout that public

.comment period. The applicant must provide a verification that the sign posting was conducted

according to this section.

(c) Each sign placed at the site must be located within ten feet of every 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 of one 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 under the same ownership which are noncontiguous or separated by intervening public

highway, street, or road, unless directly involved by the permit application.

(d) The executive director may approve variations from the requirements of this subsection if

the applicant has demonstrated that it is not practical to comply with the specific requirements of this

18
subsection 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 under this subsection must be

received before posting signs for purposes of satisfying the requirements of this section.

(e) Alternative language sign posting is required whenever alternative language newspaper

notice would be required under §39.603 of this 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 adjacent to each English language sign required in this

section. The alternative language sign posting requirements of this subsection shall be satisfied without

regard to whether alternative language newspaper notice is waived under §39.703(d)(5) of this title

(relating to Newspaper Notice). The alternative language signs shall meet all other requirements of this

section.

§39.606. Alternative Means of Notice for Permits for Grandfathered FaciHties.

(a) An applicant for a permit, under Texas Health and Safety Code, §§382.05183, 382.05185(c)

and (d), 382.05186, or 382.0519, for a facility that constitutes or is part of a small business stationary

source, as defined in Texas Health and Safety Code, §382.0365(g)(2), may request that the executive

director approve an alternative means from the notice methods required under this subchapter.

(b) The executive director may approve the request upon a determination that the alternative

means will result in equal or better communication with the public, considering the following factors:

(1) the effectiveness of the method of notice in reaching potentially affected persons;

(2) the cost of the method of notice; and

19
(3) whether the method is consistent with federal requirements.

(c) The applicant may not use the alternative means of notice until the executive director gives

written approval.

(d) Notice of hearing. The applicant shall publish notice of the hearing in a newspaper of

general circulation in the municipality in which the facility is located or is proposed to be located or in the

municipality nearest to the location or proposed location of the facility. The notice must be published not

less than 30 days before the hearing.

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CHAPTER 116: CONTROL OF AIR POLLUTION BY PERMITS

FOR NEW CONSTRUCTION OR MODIFICATION

SUBCHAPTER A: DEFINITIONS

§116.10, §116.18

§116.10. General Definitions.

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

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

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

the following words and terms, when used in this chapter, shall have the following meanings, unless the

context clearly indicates otherwise.

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

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

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

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

(relating to Changes to Facilities).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

permit.

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

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

exemption request.

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

voluntary installation of controls.

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

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

facility.

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

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

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

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

EPA, including:

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

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

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

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

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

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

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

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

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

3
(F) any permit requirements established under Subchapter C of this chapter

(relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major

Sources (FCAA, §112(g), 40 CFR Part 63».

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

modified since August 30, 1971.

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

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

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

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

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

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

by the permit for a facility.

(9) Modification of existing facility - Any physical change in, or change in the method

of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the

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

The term does not include:

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

authorized by one or more commission exemptions;

(8) insignificant increases at a permitted' facility;

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

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

atmosphere;

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

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

preconstruction permit requirements;

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

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

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

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

been exempted underthe TCM, §382.057, from preconstruction permit requirements no earlier than

120 months before the change will occur; or

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

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

pollution control method that is at least as effective as the BACT that the commission reqUired or would

have required for a facility of the same class or type as a condition of issuing a permit or permit

amendment 120 months before the change will occur;

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

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

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

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

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

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

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

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

have occurred only under Chapter 106 of this title; or

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

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

September 1, 1991.

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

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

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

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

commenced after March 5, 1972.

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

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

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

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

chapter.

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

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

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

or operated.

§116.18. Electric Generating Facility Permits Definitions.

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

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

otherwise.

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

(2) Capacity factor - Either:

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

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

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

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

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

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

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

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

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

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

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

(10) Nameplate capacity - The maximum electrical output (expressed in megaw'atts)

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

deratings.

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

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

oil.

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

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

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

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

operating hours.

(13) Peaking unit - An EGF that has:

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

calendar years; and

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

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

9
SUBCHAPTER H: PERMITS FOR GRANDFATHERED FACILITIES

DIVISION 1: GENERAL APPLICABILITY

§§116.770 -116.772

§116.770. Requirement to Apply.

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

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

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

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

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

§116.771. Implementation Schedule for Additional Controls.

(a) If the installation of additional controls is reqUired for a grandfathered facility to meet an

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

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

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

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

EI Paso County.

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

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

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

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

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

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§116.772. Notice of Shutdown.

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

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

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

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

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

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

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

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

or

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

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

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

deadlines specified in §116.770 or §116.774 of this title, but prior to permit issuance, decides to shut the

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

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

this section.

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

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

this title prior to operating the facility.

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

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

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

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DIVISION 2: SMALL BUSINESS STATIONARY SOURCE PERMITS,

PIPELINE FACILITIES PERMITS, AND EXISTING FACILITY PERMITS

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

§116.774. Eligibility for Small Business Stationary Source Permits.

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

source, as defined in TCM, §382.0365(h), and which is not required .to report to 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 of this title (relating to Requirement to Apply) and

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

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

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

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

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

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

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

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

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

Applicability).

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

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

13
§116.775. Eligibility for Pipeline Facilities Permits.

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

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

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

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

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

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

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

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

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

combustion engine or a groupof the grandfathered reciprocating internal combustion engines connected

to or part of a gathering or transmission pipeline.

§116.777. Eligibility for Existing Facility Permits.

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

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

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

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

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

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

or Existing Facility Permits.

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

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

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

Form PI-1G specifies additional support information which must be provided before the application is

deemed complete. In order to be granted a permit, the owner or operator of the grandfathered facility

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

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

facility will comply with all rules and regulations of the commission and with the intent of the TCAA,

including protection of the health and physical property of the people.

(2) Measurement of emissions. The permit may have provisions for measuring the

emission of air contaminants as determined by the commission. These provisions may include the

installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance

with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures

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

(3) New Source Performance Standards (NSPS). The emissions from each affected

facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet at least the requirements of

any applicable NSPS as listed under 40 CFR Part 60, promUlgated by EPA under authority granted

under FCAA, §111, as amended.

(4) National Emission Standards for Hazardous Air Pollutants (NESHAP). The

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

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

under FCAA, §112, as amended.

(5) NESHAPs for source categories. The emissions from each affected facility shall

meet at least the requirements of any applicable maximum achievable control technology (MACT)

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

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

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

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

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

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

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

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

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

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

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

Nonattainment Review).

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

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

chapter (relating to Prevention of Significant Deterioration Review).

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

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

from the grandfathered facility.

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

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

this title (relating to Section 112(g) Definitions), the affected source shall comply with all applicable

requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations

Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63».

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

applicant shall:

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

(8) identify the air contaminants emitted; and

(C) provide emission rate calculations.

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

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

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

requirements.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

region as defined in §101.330 of this title.

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

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

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

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

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

comply with another state or federal law.

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

facility permit shall propose an air pollution control method that is at least as beneficial as the best

available control technology (BACT) that the commission required or would have required for a facility of

the same class or type as a condition of issuing a permit or permit amendment 120 months before the

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

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

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

Facility Permits.

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

of intent to obtain the permit in accordance with Chapter 39, Subchapters Hand K of this title (relating to

Applicability and General Provisions; and Public Notice of Air Quality Applications).

(b) Any person who may be affeCted by emissions from a grandfathered facility may request the

commission to hold a notice and comment hearing on the pipeline facilities permit application or the

existing facility permit application. The public comment period shall end 30 days after the publication of

Notice of Receipt of Application and Intent to Obtain Permit in accordance with §39.418 of this title

(relating to Notice of Receipt of Application and Intent to Obtain Permit). Any request for a notice and

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

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

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

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

Facility Permits) and not under the APA.

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

issue or deny a pipeline facilities permit or an existing facility permit will be conducted in accordance with

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

Applications and Existing Facility Permit Applications).

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

facility permit may seek review, as appropriate, under the appropriate procedure in Chapter 50 of this

title (relating to Action on Applications and Other Authorizations), and may seek judicial review under

TCAA, §382.032, relating to Appeal of Commission Action.

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

Existing Facility Permits.

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

facilities permit or an eXisting facility permit.

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

hold a hearing if it determines that the basis of the request by a person who may be affected by

emissions from a grandfathered facility is unreasonable. If a hearing is requested by a person who may

be affected by emissions from agrandfathered facility, and that request is reasonable, the commission

will hold a hearing.

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

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

grandfathered facility is located, or in the municipality nearest to the location of the facility. The notice

must be published at least 30 days before the date set fo~ the hearing. The notice must include the

folloWing:

(1) the time, place, and nature of the hearing;

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

20
(3) the name and phone number of the commission office to be contacted to verify that

a hearing will be held.

(d) Any person, including the applicant, may submit oral or written statements and data

concerning the draft permit.

(1) The commission may set reasonable time limits for oral statements, and may require

the submission of statements in writing.

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

any hearing.

(3) At the hearing, the commission may extend the period for submitting written

comments beyond the close of the hearing.

(e) The commission will make an audio recording or written transcript of the hearing available to

the public.

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

inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all

issues and submit all arguments supporting that position by the end of the public comment period.

(g) Any supporting materials for comments submitted under subsection (f) of this section must

be included in full and may not be incorporated by reference, unless the materials are one of the

following:

(1) already part of the administrative record in the same proceedings;

21
(2) state or federal statutes and regulations;

(3) EPA documents of general applicability; or

(4) other generally available reference materials.

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

hearing. This record will be available to the public.

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

provides for compliance with the requirements of this subchapter.

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

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

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

Permit Applications.

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

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

permit application or the existing facility permit application to anyperson who commented during the

public comment period or at the hearing, and to the applicant.

(b) The notice must include the following:

(1) the response to any comments submitted during the pUblic comment period;

22
(2) identification of any change in the conditions of the draft permit and the reasons for

the change; and

(3) a statement that any person affected by the decision of the executive director may

file a motion to overturn under the appropriate procedure in Chapter 50 of this title (relating to Action on

Applications and Other Authorizations) and may seek judicial review under TCAA, §382.032, relating to

Appeal of Commission Action.

§116.785. Permit Fee.

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

business stationary source permits, pipeline facility permits, and existing facility permits must remit a fee

of $450 at the time of application for such permit. If the facility is a small business stationary source

facility as defined in TCAA, §382.0365(h), the fee shall be $100.

(b) Payment of fees. All permit fees must be remitted in the form of a check or money order

made payable to the Texas Natural Resource Conservation Commission and delivered to the Texas

Natural Resource Conservation Commission, P. O. Box 13088, MC 214, Austin, Texas 78711-3088.

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

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

accordance with this division. If the applicant withdraws the application prior to issuance of the permit,

one-half of the fee will be refunded, except that the entire fee will be refunded for any such application

for which a permit by rule in accordance with Chapter 106 of this title (relating to Permits by Rule) is

allowed. No fees will be refunded after a deficient application has been voided, denied, or after a permit

has been issued by the commission.

23
§116.786. General and Special Conditions.

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

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

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

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

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

document.

(1) Sampling requirements.

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

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

procedures.

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

director and coordinated with the regional representatives of the commission.

(C) The permit holder is also responsible for providing sampling facilities and

conducting the sampling operations, or contracting with an independent sampling consultant.

(2) Equivalency of methods. The permit holder must demonstrate or otherwise justify

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

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

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

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

24
(3) Recordkeeping. The permit holder shall:

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

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

operating hours;

(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 of Texas as specified in the application;

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

commission or any air pollution control program having jurisdiction;

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

conditions attached to the permit; and

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

information or data is obtained.

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

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

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

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

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

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

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

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

and Operational Requirements).

(6) Compliance with rules.

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

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

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

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

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

shall be demonstrated.

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

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

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

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

special conditions contained in the permit document.

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

requirements of this title.

(2) Special conditions for written approval.

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

holder obtain written approval before constructing a source under:

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

(relating to Standard Permits); or

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

to Permits by Rule).

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

finds that an increase of a particular pollutant could either:

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

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

(I) Subchapter C of this chapter (relating to Hazardous Air

Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g),

40 CFR Part 63»; or

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

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

Significant Deterioration Review).

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

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

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

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

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

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

§116.788. Renewal of Permits Issued Under this Division.

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

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

requirements of Subchapter 0 of this chapter (relating to Permit Renewals)..

§116.790. Delegation.

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

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

and existing facility permits.

28
DIVISION 3: EXISTING FACILITY FLEXIBLE PERMITS

§§116.793 -116.802, 116.804 -116.807

§116.793. Eligibility for Existing Facility Flexible Permits.

(a) Existing facility flexible permit. The owner or operator of a grandfathered facility or group of

grandfathered facilities at a site may apply for an existing facility flexible permit. The existing facility

flexible permit may also include facilities permitted under TCAA, §382.0519.. A person may apply for an

exis~ing facility flexible permit in accordance with §116.794 of this title (relating to Existing Facility

Flexible Permit Application) for a facility, group of facilities, or account, provided that:

(1) only one existing facility flexible permit may be issued at an account site;

(3) permitting of a new facility may be handled through the amendment of an existing

facility flexible permit; and

(4) an existing facility flexible permit may not cover sources at more than one account

site.

(b) Change in ownership. The new owner of a facility, group of facilities, or account shall

comply with §116.11O(d) of this title (relating to Applicability) prOVided however, that all facilities covered

by an existing facility flexible permit must change ownership at the same time and to.the same person,

or both the new owner and existing permit holder must obtain a permit alteration allocating the emission

caps or individual emission limitation prior to the transfer of the permit by the commission. After the sale

29
of a facility or facilities, but prior to the transfer of a permit requiring a permit alteration, the original

permit holder remains responsible for ensuring compliance with the eXisting facility flexible permit and all

rules and regulations of the commission.

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

Texas licensed professional engineer if required by §116.110(e) of this title.

(d) Responsibility for existing facility flexible permit application. The owner of the facility, group

of facilities, or account or the operator of the facility, group of facilities, or account who is authorized to

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

this section.

§116.794. Existing Facility Flexible Permit Application.

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

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

representative of the applicant. The Form PI-1 G specifies additional support information which must be

provided before the application is deemed complete. In order to be granted an existing facility flexible

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

which demonstrates that all of the following are met.

(1) Protection of public health and welfare. The emissions from the facility, group of

facilities, or account as determined under §116.800 of this title (relating to Emission Caps and Individual

Emission Limitations), will comply with all rules and regulations of the commission and with the intent of

the TCM, including protection of the health and physical property of the people.

30
(2) Measurement of emissions. The facility, group of facilities, or account will have

provisions for measuring the emission of air contaminants as determined by the executive director. This

may include the installation of sampling ports on exhaust stacks and construction of sampling platforms

in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling

Procedures Manual. n

(3) Control method. The grandfathered facility or group of grandfathered facilities shall

use an air pollution control method that is at least as beneficial as the best available control technology

(BACT) that the commission required or would have required for a facility of the same class or type as a

condition of issuing a permit or permit amendment 120 months before the submittal of the existing

facility permit application, considering the age and remaining useful life of the facility. Facilities located

in nonattainment or near nonattainment areas which obtained a voluntary emission reduction permit

(VERP) under Division 4 of this subchapter (relating to Voluntary Emission Reduction Permits) shall use

generally available control technology (GACT). Control technology beyond ten year old BACT, GACT, or

a combination of ten year old BACT and GACT may be used on certain facilities to provide the emission

reductions necessary to comply with this requirement on a group of facilities or account basis, provided

however, that the existing level of control may not be lessened for any facility.

(4) New Source Performance Standards (NSPS). The emissions from each affected

facility as defined in 40 Code of Federal Regulations (CFR), Part 60 will meet at least the requirements

of any applicable NSPS as listed under 40 CFR Part 60, promulgated by the EPA under authority

granted under FCAA, §111, as amended.

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

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

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

under FCAA, §112, as amended.

31
(6) NESHAPs for source categories. The emissions from each affected facility shall

meet at least the requirements of any applicable maximum achievable control technology (MACT)

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

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

Pollutants for Source Categories (FCM Section 112,40 CFR 63)).

(7) Performance demonstration. The facility, group of facilities, or account will achieve

the performance specified in the existing facility flexible permit application. The applicant may be

required to submit additional engineering data after an existing facility flexible permit has been·issued in

order to demonstrate further that the facility, group of facilities, or account will achieve the performance

specified in the existing facility flexible permit. In addition, initial compliance testing with ongoing

compliance determined through engineering calculations based on measured process variables,

parametric or predictive monitoring, stack monitoring, or stack testing may be required.

(8) Nonattainment review. If the facility, group of facilities, or account is located in a

nonattainment area, each facility shall comply with all applicable requirements in accordance with

SUbchapter 8, Division 5 of this chapter (relating to Nonattainment Review).

(9) Prevention of Significant Deterioration (PSD) review. If the facility, group of

facilities, or account is located in an attainment area, each facility shall comply with all applicable

reqUirements in accordance with Subchapter 8, Division 6 of this chapter (relating to Prevention of

Significant Deterioration Review).

(10) Air dispersion modeling or ambient monitoring. Computerized air dispersion

modeling and/or ambient monitoring may be required by the commission's Air Permits Division to

determine the air quality impacts from the facility, group of facilities, or account.

32
(11) Federal standards of review for constructed or reconstructed major sources of

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

(relating to Section 112(g) Definitions)), it shall comply with all applicable requirements in accordance

with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing

Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63)).

(12) Mass cap and trade allocations. If subject to Chapter 101, Subchapter H, Division

3 of this title (relating to Mass Emissions Cap and Trade Program) the facility, group of facilities, or

account must obtain allocations to operate.

(13) Application content. In addition to any other requirements of this chapter, the

applicant shall:

(A) identify each air contaminant for which an emission cap is desired;

(8) identify each facility to be included in the existing facility flexible permit;

(C) identify each source of emissions to be included in the existing facility

flexible permit, and for each source of emissions identify the Emission Point Number (EPN) and the air

contaminants emitted;

(D) for each emission cap, identify all associated EPNs and provide emission

rate calculations based on the expected maximum capacity and the proposed control technology; and

(E) for each individual emission limitation, identify the EPN and provide

emission rate calculations based on the expected maximum capacity and the proposed control

technology.

33
(14) Proposed control technology and compliance demonstration. The applicant shall

specify the control technology proposed for each unit to meet the emission cap and demonstrate

compliance with all emission caps at expected maximum production capacity.

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

(a) An applicant for a permit under this division relating to existing facility flexible permits shall

publish notice of intent to obtain the permit in accordance with Chapter 39, Subchapters Hand K of this

title (relating to Applicability and General Provisions; and Public Notice of Air Quality Applications).

(b) Any person who may be affected by emissions from a grandfathered facility may request the

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

end 30 days after the publication of Notice of Receipt of Application and Intent to Obtain Permit in

accordance with §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain

Permit). Any hearing request must be made in writing during the 3D-day public comment period.

(c) Any hearing regarding initial issuance of a permit under this division shall be conducted in

accordance with the procedures in §116.796 of this title (relating to Notice and Comment Hearings for

Initial Issuance of Existing Facility Flexible Permits) and not under the APA.

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

issue or deny a permit under this division will be conducted in accordance with the procedures in

§116.797 of this title (relating to Notice of Final Action on Existing Facility Flexible Permit Applications).

(e) A person affected by a decision to issue or deny a permit under this division may seek

review, as appropriate, in accordance with the appropriate procedure in Chapter 50 of this title (relating

34
to Action on Applications and Other Authorizations), and may seek judicial review under TCAA,

§382.032, relating to Appeal of Commission Action.

(f) Any person who applies for an amendment to an existing facility flexible permit regarding an

affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions» sUbject to

Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed

or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63» shall comply with the

provisions in Chapter 39 of this title (relating to Public Notice).

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

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

existing facility flexible permit.

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

hold a hearing if it determines that the basis of the request by a person who may be affected by

emissions from a grandfathered facility is unreasonable. If a hearing is requested by a person who may

be affected by emissions from a grandfathered facility, and that request is reasonable, the commission

will hold a hearing.

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

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

grandfathered facility is located, or in the municipality nearest to the location of the facility. The notice

must be published at least 30 days before the date set for the hearing. The notice must include the

following:

(1) the time, place, and nature of the hearing;

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

(3) the name and phone number of the commission office to be contacted to verify that

a hearing will be held.

(d) Any person, including the applicant, may submit oral or written statements and data

concerning the draft permit.

(1) The commission may set reasonable time limits for oral statements, and may require

the submission of statements in writing.

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

any hearing.

(3) At the hearing, the commission may extend the period for submitting written

comments beyond the close of the hearing.

(e) The commission will make an audio recording or written transcript of the hearing available to

the public.

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

inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all

issues and submit all arguments supporting that position by the end of the public comment period.

(g) Any supporting materials for comments submitted under subsection (f) of this section must

be included in full and may not be incorporated by reference, unless the materials are one of the

following:

36
(1) already part of the administrative record in the same proceedings;

(2) state or federal statutes and regulations;

(3) EPA documents of general applicability; or

(4) other generally available reference materials.

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

hearing. This record will be available to the pUblic.

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

provides for compliance with the requirements of this subchapter.

U> The commission will respond to comments consistent with §116.797 of this title (relating to

Notice of Final Action on Existing Facility Flexible Permit Applications).

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

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

commission will send notice by first-class mail of the final action on the existing facility flexible permit

application to any person who commented during the public comment period or at the hearing, and to

the applicant.

(b) The notice must include the following:

(1) the response to any comments submitted during the public comment period;

37
(2) identification of any change in the conditions of the draft permit and the reasons for

the change; and

(3) a statement that any person affected by the decision of the executive director may

file a motion to overturn under the appropriate procedure in Chapter 50 of this title (relating to Action on

Applications and Other Authorizations) and may seek judicial review under TCAA, §382.032, relating to

Appeal of Commission Action.

§116.798. Permit Fee.

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

facility flexible permits must remit a fee of $450 at the time of application for such permit. If the facility is

a small business stationary source facility as defined in TCAA, §382.0365(h), the fee shall be $100.

(b) Payment of fees. All permit fees must be remitted in the form of a check or money order

made payable to the Texas Natural Resource Conservation Commission and delivered to the Texas

Natural Resource Conservation Commission, P. O. Box 13088, MC 214, Austin, Texas 78711-3088.

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

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

accordance with this division. If the applicant withdraws the application prior to issuance of the permit,

one-half of the fee will be refunded, except that the entire fee will be refunded for any such application

for which a permit by rule in accordance with Chapter 106 of this title (relating to Permits by Rule) is

allowed. No fees will be refunded after a deficient application has been voided, denied, or after a permit

has been issued by the commission.

38
§116.799. General and Special Conditions.

(a) Existing facility flexible permits may contain general and special conditions. The holders of

existing facility flexible permits shall comply with any and all such conditions. Upon a specific finding by

the executive director that an increase of a particular air contaminant could result in a significant impact

on the air environment, or could cause the facility, group of facilities, or account to become subject to

review in accordance with §§116.150, 116.151, and 116.160 - 116.163 of this title (relating to

Nonattainment Review or Prevention of Significant Deterioration Review); or Subchapter C of this

chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed

Major Sources (FCAA, Section 112(g), 40 CFR Part 63)), the permit may include a special condition

which requires the permittee to obtain written approval from the executive director before constructing a

facility under a standard permit or a permit by rule under Chapter 106 of this title (relating to Permits by

Rule).

(b) A pollutant specific emission cap or multiple emission caps and/or individual emission

limitations shall be established for each air contaminant for all facilities authorized by the existing facility

flexible permit.

(c) The following general conditions shall be applicable to every existing facility flexible permit.

(1) Sampling requirements. If sampling of stacks or process vents is required, the

existing facility flexible permit holder shall contact the commission's Office of Compliance and

Enforcement, Engineering Services Section prior to sampling to obtain the proper data forms and

procedures. All sampling and testing procedures must be approved by the executive director and

coordinated with the appropriate regional office of the commission. The existing facility flexible permit

holder is also responsible for providing sampling facilities and conducting the sampling operations, or

contracting with an independent sampling consultant.

39
(2) Equivalency of methods. It shall be the responsibility of the existing facility flexible

permit holder to demonstrate or otherwise justify the equivalency of emission control methods, sampling

or other emission testing methods, and monitoring methods proposed as alternatives to methods

indicated in the conditions of the existing facility flexible permit. Alternative methods shall be applied for

in writing and must be reviewed and approved by the executive director prior to their use in fUlfilling any

requirements of the permit.

(3) Recordkeeping. A copy of the existing facility flexible permit along with information

and data sufficient to demonstrate continuous compliance with the emission caps and individual

emission limitations contained in the existing facility flexible permit shall be maintaiiled in a fife at the

plant site, and made available at the request of personnel from the commission or any air pollution

control program having jurisdiction. For facilities that normally operate unattended, this information shall

be maintained at the nearest staffed location within the State of Texas specified by the permit holder in

the permit application. This information may include, but is not limited to, emission cap and individual

emission limitation calculations based on a 12-month rolling basis and production records and operating

hours. Additional recordkeeping requirements may be specified in special conditions attached to the

existing facility flexible permit. Information in the file shall be retained for at least two years follOWing the

date that the information or data is obtained.

(4) Maximum allowable emission rates. An existing facility flexible permit covers only

those sources of emissions and those air contaminants listed in the table entitled "Emission Sources,

Emissions Caps and Individual Emission Limitations" attached to the existing facility flexible permit.

Existing facility flexible permitted sources are limited to the emission limits and other conditions specified

in the table attached to the existing facility flexible permit.

(5) Emission cap readjustment. If a schedule to install additional controls is included in

the existing facility flexible permit and a facility subject to such a schedule is taken out of service, the

40
emission cap contained in the existing facility flexible permit will be readjusted for the period the unit is

out of service to a level as if no schedule had been established. Unless a special provision specifies the

method of readjustment of the emission cap, a permit alteration shall be obtained.

(6) Maintenance of emission control. The facilities covered by the existing facility

flexible permit shall not be operated unless all air pollution emission capture and abatement equipment

is maintained in good working order and operating properly during normal facility operations. Notification

for upset and maintenance shall be made in accordance with §101.6 and §101.7 of this title (relating to

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

Recordkeeping, and Operational Requirements).

(7) Compliance with rules. Acceptance of an existing facility flexible permit by a permit

applicant constitutes an acknowledgment and agreement that the holder will comply with all rules,

regulations, and orders of the commission issued in conformity with the TCM and the conditions

precedent to the granting of the permit. If more than one state or federal rule or regulation or existing

facility flexible permit condition are applicable, then the most stringent limit or condition shall govern and

be the standard by which compliance shall be demonstrated. Acceptance includes consent to the

entrance of commission employees and agents into the permitted premises at reasonable times to

investigate conditions relating to the emission or concentration of air contaminants, inclUding compliance

with the existing facility flexible permit.

(d) There may be additional special conditions attached to an existing facility flexible permit

upon issuance or amendment of the permit. Such conditions in an existing facility flexible permit may be

more restrictive than the requirements of this title.

41
§116.800. Emission Caps and Individual Emission Limitations.

(a) Emission caps. Each emission cap for a specific pollutant will be established as follows.

(1) Emissions will be calculated for each facility based on application of best available

control technology (BACT) that the commission required or would have required for a facility of the same

class or type as a condition of issuing a permit or permit amendment 120 months before the submittal of

the eXisting facility permit application considering the age and remaining useful life of the facility,

generally available control technology (GACT) for facilities with a voluntary emission reduction permit

located in nonattainment areas or near nonattainment areas, or a combination of ten year old BACT and

GACT at expected maximum capacity.

(2) The calculated emissions will be summed.

(b) Individual emission limitations. An individual emission limitation will be established in the

same permit for each pollutant not covered by an emission cap for facilities covered by the existing

facility flexible permit. In addition, an individual emission limitation may be established for a pollutant

covered by an emission cap when the expected capacity of a facility is less than the expected maximum

capacity to prevent a facility from exceeding emission levels appropriate for the proposed controls.

(c) Readjustment of emission cap. If a facility subject to an emission cap is shut down for a

period longer than 12 months, the emission cap shall be readjusted by lowering the emission cap by an

amount that the shut down facility contributed to the original calculation of the emission cap. If a new

facility is brought into the existing facility flexible permit, an emission cap shall be adjusted by modifying

the emission cap accordingly.

42
(d) An emission cap will be readjusted downward for any facility covered by an existing facility

flexible permit if that facility becomes subject to any new state or federal regulation which would lower

emissions or require an emission reduction. The adjustment will be made at the time the existing facility

flexible permit is amended or altered. If an amendment to an existing facility flexible permit is not

required to meet the new regUlation, the permittee must submit a request to alter the permit and include

information describing how compliance with the new requirement will be demonstrated within 60 days of

making the change.

§116.801. Implementation Schedule for Additional Controls.

If the installation of additional controls is required for a grandfathered facility to meet an emission

cap for a pollutant, the existing facility flexible permit shall specify an implementation schedule for such

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

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

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

EI Paso County. The permit may also specify how the emission cap will be adjusted if such a facility is

taken out of service or fails to install the additional control equipment as provided by the implementation

schedule.

§116.802. Significant Emission Increase.

An increase in emissions from operational or physical changes at an existing facility covered by

an existing facility flexible permit is insignificant for the purposes of state new source review under this I

subchapter, if the increase does not exceed either the emission cap or individual emission limitation for

the facility covered by the existing facility flexible permit. This section does not apply to an increase in

emissions from a new facility nor to the emission of an air contaminant not previously emitted by an

existing facility.

43
§116.804. Limitation on Physical and Operational Changes.

Neither operational nor physical changes at an account may result in an increase in actual

emissions at facilities not covered by the existing facility flexible permit unless those affected facilities

are authorized in accordance with §116.110 of this title (relating to Applicability).

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

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

to existing facility flexible permits, must comply with the requirements of Subchapte"r 8 of this chapter

(relating to New Source Review Permits) before work begins on the construction of the modification.

Amendments and alterations for existing facility flexible permits are subject to the requirements of

Subchapter 8 of this chapter.

§116.806. Existing Facility Flexible Permit Renewal.

Permits issued under this division, relating to existing facility flexible permits, will be renewed in

accordance with the requirements of Subchapter 0 of this chapter (relating to Permit Renewals).

§116.807. Delegation.

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

issued under this division, relating to existing facility flexible permits.

44
DIVISION 4: VOLUNTARY EMISSION REDUCTION PERMITS

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

§116.810. Eligibility.

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

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

1,2001.

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

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

Applicability).

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

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

§116.811. Voluntary Emission Reduction Permit Application.

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

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

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

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

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

demonstrates that all of the following are met.

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

facility will comply with all rules and regulations of the commission and with the intent of the TCM,

including protection of the health and physical property of the people.

(2) Measurement of emissions. The VERP may have provisions for measuring the

emission of air contaminants as determined by the commission. These may include the installation of

sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines

in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual," portable

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

(3) Control method.

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

attainment area shall use an air pollution control method that is at least as beneficial as the best

available control technology (BACT) that the commission required or would have required for a facility of

the same class or type as a condition of issuing a permit or permit amendment 120 months before the

submittal of the VERP application considering the age and remaining useful life of the facility, except as

provided by subparagraphs (8), (C), and (0) of this 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 air quality standard, or a grandfathered facility which

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

shall use the more stringent of:

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

sUbparagraph (A) of this paragraph; or

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

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

considering the age and remaining useful life of the facility.

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

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

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

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

emission reductions necessary to meet the requirements of subparagraph (A) or (8) of this paragraph;

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

the degree necessary for the issuance of the permit; and

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

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

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

subparagraph (A) or (8) of this paragraph.

(4) New Source Performance Standards (NSPS). The emissions from each affected

facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet at least the requirements of

any applicable NSPS as listed under Title 40 CFR Part 60, promulgated by EPA under authority granted

under FCAA, §111, as amended.

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

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

47
applicable NESHAPS, as listed under 40 CFR Part 61, promulgated by EPA under authority granted

under FCAA, §112, as amended.

(6) NESHAPS for source categories. The emissions from each affected facility shall

meet at least the requirements of any applicable maximum available control technology (MACT)

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

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

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

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

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

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

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

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

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

testing.

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

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

Nonattainment Review).

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

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

chapter (relating to Prevention of Significant Deterioration Review).

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

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

from the grandfathered facility.

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

hazardous air pollutants. If the grandfathered facility is an affected source (as defined in §115.15(1) of

this title (relating to Section 112(g) Definitions)), the affected source shall comply with all applicable

requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations

Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 53)).

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

applicant shall:

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

(8) identify the air contaminants emitted;

(C) provide emission rate calculations;

(D) propose a control method; and

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

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§116.812. Project Emission Reduction Credits.

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

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

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

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

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

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

grandfathered facility is located; and

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

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

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

title.

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

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

(A) wind power;

(8) biomass gasification power; and

(C) solar power;

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

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

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

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

employees;

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

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

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

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

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

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

(1) enforceable by the commission;

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

of the source;

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

confidence using replicable techniques;

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

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

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

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

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

operator acquires the credits.

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

§116.813. Application Review Schedule.

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

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

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

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

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

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

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

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

§116.814. General and Special Conditions.

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

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

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

General and Special Conditions).

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§116.816. Deferral of Emission Reductions.

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

emissions of certain air contaminants.

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

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

reductions will be made in other specific air contaminants.

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

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

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

barrier to implementing the reduction required by the VERP.

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

determine whether to grant a deferral:

(1) the location of the grandfathered facility;

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

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

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

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

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

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

contaminants being deferred; and

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

versus the deferral.

§116.820. Modifications.

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

emission reduction permit must comply with Subchapter B of this chapter (relating t6 New Source

Review Permits) before work is begun on the construction of the 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 Kof this title (relating to

Applicability and General Provisions; and Public Notice of Air Quality Applications).

(b) Any person who may be affecte~ by emissions from a grandfathered facility may request the

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

period shall end 30 days after the pUblication of Notice of Receipt ofApplication and Intent to Obtain

Permit under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain

Permit). Any hearing request must be made in writing during the 30-day public comment period.

(c) Any hearing regarding initial issuance of a VERP shall be conducted under the procedures in

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

APA.

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

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

of Final Action).

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

under the appropriate procedure in Chapter 50 of this title (relating to Action on Applications and Other

Authorizations), and may seek judicial review under TCAA, §382.032, relating to Appeal of Commission

Action.

§116.841. Notice and Comment Hearings for Initial Issuance.

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

voluntary emission reduction permit (VERP).

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

hold a hearing if it determines that the basis of the request by a person who may be affected by

emissions from a grandfathered facility is unreasonable. If a hearing is requested by a person who may

be affected by emissions from a grandfathered facility, and that request is reasonable, the commission

will hold a hearing.

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

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

grandfathered facility is located, or in the municipality nearest to the location of the facility. The notice

must be published at least 30 days before the date set for the hearing. The notice must include the

following:

(1) the time, place, and nature of the hearing;

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

(3) the name and phone number of the commission office to be contacted to verify that

a hearing will be held.

(d) Any person, including the applicant, may submit oral or written statements and data

concerning the draft permit.

(1) The commission may set reasonable time limits for oral statements, and may require

the submission of statements in writing.

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

any hearing.

(3) At the hearing, the commission may extend the period for submitting written

comments beyond the close of the hearing.

(e) The commission will make an audio recording or written transcript of the hearing available to

the public.

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

inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all

issues and submit all arguments supporting that position by the end of the public comment period.

(g) Any supporting materials for comments submitted under subsection (f) of this section must

be included in full and may not be incorporated by reference, unless the materials are one of the

following:

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(1) already part of the administrative record in the same proceedings;

(2) state or federal statutes and regulations;

(3) EPA documents of general applicability; or

(4) other generally available reference materials.

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

hearing. This record will be available to the public.

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

provides for compliance with the requirements of this subchapter.

CD The commission will respond to comments consistent with §116.842 of this title (relating to

Notice of Final Action).

§116.842. Notice of Final Action.

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

commission will send notice by first-class mail of the final action on the application to any person who

commented during the public comment period or at the hearing, and to the applicant.

(b) The notice must include the following:

(1) the response to any comments submitted during the public comment period;

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(2) identification of any change in the conditions of the draft permit and the reasons for

the change; and

§116.850. Voluntary Emission Reduction Permit Application Fee.

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

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

defined in §116.811 (3)(A) or (8) of this title (relating to Voluntary Emission Reduction Permit

Application), the application fee shall be $450.

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

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

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

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

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

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

highest of the applicable fees.

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

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

control method at least as stringent as those defined in §116.811 (3)(A) or (8) of this title.

§116.860. Voluntary Emission Reduction Permit Renewal.

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

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

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

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

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

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

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

requirements of §116.811(3) of this title.

§116.870. Delegation.

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

voluntary emission reduction permit.

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

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

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

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

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

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

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

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

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

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

electing EGF is responsible for complying with this subchapter.

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

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

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

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

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

sUbchapter.

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

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

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

this subchapter.

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

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

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

§116.911. Electric Generating Facility Permit Application.

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

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

(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 of the applicant.

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

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

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

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

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

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

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

with the requirements in §116.617(1), (3), (4)(A), and (8) and (5) - (9) of this title (relating to Standard

Permit for Pollution Control Projects).

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

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

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

controls proposed under paragraph (2) of this subsection.

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

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

Requirements for Specified Sources).

(b) Application information for electing EGFs.

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

electing EGFs shall contain the following information:

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

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

EGF for calendar year 1997;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

more than 10% of the normal annual operating schedule; or

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

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

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

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

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

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

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

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

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

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

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

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

such a facility.

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

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

§116.913. General and Special Conditions.

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

permit (EGFP) unless otherwise specified in the permit.

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

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

emissions of all air contaminants;

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

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

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

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

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

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

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

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

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

criteria pollutants.

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

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

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

under this subchapter.

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

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

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

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

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

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

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

65
(5) On June 1 after every control period, the owner or operator shall hold a quantity of

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

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

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

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

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

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

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

and Reporting).

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

§111.111 of this title.

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

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

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

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

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

or used oils is not authorized by this SUbchapter.

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

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

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

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

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

Compliance Demonstration, and Reporting).

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

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

Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating

Facility Sites.

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

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

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

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

must include a completed Form PI-1G, Grandfathered Facility Permit Application. The Form PI-1G must

be signed by an authorized representative of the applicant. The Form PI-1G specifies additional support

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

permit for a grandfathered facility under this section, the owner or operator of the grandfathered facility

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

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

facility will comply with all rules and regulations of the commission and with the intent of the TCAA,

including protection of the health and physical property of the people.

(2) Measurement of emissions. The EGFP may have provisions for measuring the

emission of air contaminants as determined by the commission. These may include the installation of

sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines

in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual," portable

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

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(3) New Source Performance Standards (NSPS). The emissions from each affected

facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet at least the requirements of

any applicable NSPS as listed under 40 CFR Part 60, promulgated by the EPA under authority granted

in accordance with FCAA, §111 as amended.

(4) National Emission Standards for Hazardous Air Pollutants (NESHAP). The

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

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

accordance with FCAA, §112, as amended.

(5) NESHAPs for source categories. The emissions from each affected facility shall

meet at least the requirements of any applicable maximum achievable control technology (MACT)

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

listed under Chapter 113, SUbchapter C of this title (relating to National Emission Standards for.

Hazardous Air Pollutants for Source Categories (FCAA, Section 112, 40 CFR 63)).

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

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

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

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

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

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

testing.

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

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

Nonattainment Review).

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

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

chapter (relating to Prevention of Significant Deterioration Review).

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

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

from the grandfathered facility.

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

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

this title (relating to Section 112(g) Definitions», the affected source shall comply with all applicable

requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations

Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63».

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

applicant shall:

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

(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) of this title.

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

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

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

Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility

Sites.

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

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

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

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

all such conditions.

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

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

whether they are specifically stated within the permit document.

(1) Sampling requirements.

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

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

procedures.

(8) All sampling and testing proCedures must be approved by the executive

director and coordinated with the regional representatives of the commission.

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(C) The permit holder is also responsible for providing sampling facilities and

conducting the sampling operations or contracting with an independent sampling consultant.

(2) Equivalency of methods. The permit holder must demonstrate or otherwise justify

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

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

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

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

(3) Recordkeeping. The permit holder shall:

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

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

operating hours;

(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 of Texas specified in the application;

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

commission or any air pollution control program having jurisdiction;

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

conditions attached to the permit; and

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

information or data is obtained.

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

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

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

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

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

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

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

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

and Operational Requirements).

(6) Compliance with rules.

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

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

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

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

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

shall be demonstrated.

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

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

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

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

all special conditions contained in the permit document.

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

requirements of this title.

(2) Special condition for written approval.

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

holder obtain written approval before constructing a source under:

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

(relating to Standard Permits); or

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

Rule).

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

finds that an increase of a particular pollutant could either:

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

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

(I) Subchapter C of this chapter {relating to Hazardous Air

Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112{g),

40 CFR Part 63)); or

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

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

of Significant Deterioration Review).

§116.921. Notice and Comment Hearings for Initial Issuance.

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

electric generating facility permit (EGFP).

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

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

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

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

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

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

shall hold a hearing.

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

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

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

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

§116.911(f) of this title. The notice must be published at least 30 days before the date set for the

hearing. The notice must include the following:

(1) the time, place, and nature of the hearing;

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

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(3) the name and phone number of the commission office to be contacted to verify that

a hearing will be held.

(d) Any person, including the applicant, may submit oral or written statements and data

concerning the draft EGFP.

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

statements in writing may be required.

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

any hearing.

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

the close of the hearing.

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

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

inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all

issues and submit all arguments supporting that position by the end of the public comment period.

(g) Any supporting materials for comments submitted under subsection (f) of this section must

be included in full and may not be incorporated by reference, unless the materials are one of the

following:

(1) already part of the administrative record in the same proceedings;

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(2) state or federal statutes and regulations;

(3) EPA documents of general applicability; or

(4) other generally available reference materials.

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

hearing. This record is available to the pUblic.

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

provides for compliance with the requirements of this subchapter.

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

Notice of Final Action).

§116.926. Permit Fee.

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

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

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

must remit a fee of $450 at the time of application for such permit. If the facility is a small business

stationary source facility, as defined in TCAA, §382.0365(h), the fee shall be $100.

(b) Payment of fees. All permit fees must be remitted in the form of a check or money order

made payable to the Texas Natural Resource Conservation Commission and delivered to Texas Natural

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

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

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

accordance with this subchapter. If the applicant withdraws the application prior to issuance of the

permit, one-half of the fee will be refunded, except that the entire fee will be refunded for any such

application for which a permit by rule in accordance with Chapter 106 of this title (relating to Permits by

Rule) is allowed. No fees will be refunded after a deficient application has been voided, denied, or after

a permit has been issued by the commission.

§116.928. Delegation.

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

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

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

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

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

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

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

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

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

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

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

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

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