ANN W. RICHARDS 

GOVERNOR November 29,1994 

Ms. Jane Saginaw . 

Region 6 Administrator 

Environmental Protection Agency 

1445 Ross Avenue 

Dallas, Texas 75202 

Dear Ms. Saginaw: 

Enclosed are revisions to 30 TAC Chapter 11 6 which were adopted by the Texas Natural 

Resource Conservation Commission on October 19, 1994. A new Subchapter G 

concerning Flexible Permits establishes a new type of permit called a flexible permit. A 

flexible permit will fbnction as an optional alternative to the current prewnstruction 

permit that exchanges operational flexibility for emission reductions with the final goal 

being a well-controlled facility. The revisions are being submitted to you as proposed 

revisions to the State Implementation Plan (SIP). Also enclosed is a public hearing 

certification as required by 40 CFR 5 1.102(f), a complete record of the public hearing, and 

the accompanying order. 

I look forward to your expeditious approval of these revisions to the Texas SIP. 

Sincerely, 

ANN 66 w. RICHARDL 

Governor 

cc: John Hall, Chairman, TNRCC 

William Campbell, Acting Executive Director, TNRCC 

Po\l Ott~ t Bo\ 12428 AI \I]\, TI\\\ 7871 1 (512) 463-2000 (V~I( t)/(512) 475-3165 (TDD) 

PI<I\I~L, ,I\ nkoclru I \Itn 
John Hall, Chairman 

Pam Reed, Commissioner 

Peggy Garner, Commissioner 

Anthony Crigsby, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing Pollution 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

This certify that the attached are true and correct 

copies of revisions to 30 TAC , , Chapter 116 and the State 

Implementation Plan adopted on November 16, 1994 pursuant to 40 - 

Code of Federal Regulations (CFR), S51.104. Prior to the adoption 

of the revision, a public hearing was held pursuant to 40 CFR, 

§51.102(a), and notice of the hearing was given which conformed to 

the requirements of 40 CFR, S51.102 (d) . I am the custodian of the 

records of the Commission. 

To certify which, witness my hand and the seal of the Texas 

Naturaj: Reso'tirce Conservation Commission, this the 16th day of 

A& d L1&**- 

Gloria Vasquez 

Chief clerk 

Texas Natural Resource Conservation 

Commission 

P.O. Box 13087 Austin, Texas 78711-3087 512/239-1000 

prinlrd on recycled paper usin6 my haxd ink 
TEXAS NATURAL RESOURCE 

CONSERVATION COMMISSION 

PUBLIC HEARING 

OCTOBER 3, 1994 

REVISIONS TO CHAPTER 116 AND THE 

STATE IMPLEMENTATION PLAN 

CONCERNING FLEXIBLE PERMITS 
INTRODUCTION 

A public hearing was held in Austin on October 3, 1994 to consider 

revisions to Chapter 116. A new Subchapter G, concerning Flexible 

Permits, was proposed, which created a new type of permit called 

flexible permits. A flexible permit will function as an optional 

alternative to the current preconstruction permit that exchanges 

operational flexibility for emission reductions with the final goal 

being a well-controlled facility. In addition, new S116.13 was 

proposed to add definitions that relate to flexible permits and 

revisions to S116.110 were proposed to add reference to flexible 

permits in the permit application requirements for new source 

review permits. 

Written comments were accepted through October 21, 1994. All 

testimony and comments have been reviewed and seriously considered. 

This volume contains a complete record of the public hearing and is 

divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations 

Additional copies of this hearing record are maintained in the 

TNRCC central office at 12118 North IH-35, Austin, Texas 78753. 

For further information, contact Gary McArthur at (512) 239-1917. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was 

conducted by the following procedures: 

1. Publication of the notice of public hearing in the following 

newspapers on the dates listed: 

Austin American-Statesman; September 1, 1994 

The Baytown Sun; September 2, 1994 

Beaumont Enterprise-Journal; September 3, 1994 

El Paso Times-Herald Post; September 1, 1994 

Fort Worth Star-Telegram; August 30, 1994 

Houston Chronicle; September 1, 1994 

The Odessa American; September 3, 1994 

2. Publication of the public hearing notice and proposed rule 

in the Texas Reqister on September 20, 1994. 

4. Correspondence forwarding the notice of public hearings to 

the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

Dallas Department of Health and Human Services 

El Paso City-County Health District 
Fort Worth Public Health Department 

Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Pollution Control Department 

City of El Paso 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Air Quality Bureau 

Oklahoma State Department of Health 

U. S. Environmental Protection Agency 
EXAMPLE OF 

NEWSPAPER CLASSIFIED AD 

Austin American-Statesman 

September 1, 1994 

TEXASN4TLRAl G€sara . C~RVATTXY cOMV*m 

WTC€ Cf mU2 HARM BY TH TEXAS N47LR.I IKKXKX CONSERVATlCN COMMEm 

0NCW~f?3~A~T0 

mtce a me& &en tMt Rlmt Ito the recuements d me 1e.m I )_ OW Welv Ammat. 0 

ea. %ctm 362.0ii (vernon'r 1 

1992): Texor Govanml Cwe 1 

R$,"ran%i% $072 ol Fed anr CFR) Sec. ton ~1.402~ mfed stma 

or Mtud &wce 'C&;at-m Comraoon (IWC u Cam) wl Ccn*clO RCL fmcmQ to recave tutrrmv concermg rev,. volatoChaotu t36uwllheS.P The mRCC po~oun 0nrw S9 ckLpter G, cmermg Flex- Per. 

I nus Ihe D-d -!el wl 

C10Ote 0 new tvm d cum1 CQW a lksBe immvl A lkaC-9 wmt wl tu~~tm or m cotore uterna. 

pemrt md vl ex* Gro 1 

lQnd I*-v lU - reductr*sWU)hthetmgwbsqo: 

r*BCcmtrOlBd fo~lty A te~me b pemrt wl re* mv emtw we. i COUlnKlm permt mot Covers mv 2 foCitv rck&a m the 1b.m~ oer I rril A IOdlv ow u -rota 

 fin ine -- te&j a-sil;it;& iu the recwl a a u wmten cn mMh bv nle~estea D(MCII tiha. 

w&nce wl not mu or~lhi 

hecmg. however. a TWC ston , member wlw ovdoDlotod0;uu I lheDaWSd30nrute,paloh 

heurn OW wl O%W@ DueRml 

mtue'a otter me hea* - Wnnen cuwrentr not pesentea ot the ba mv be mtted to MB ~~FCmtru once n Amln tw Octobtn 7. $996 Motela 

recetved by me TWCC Demksmmf Sectm by %%% Octabef commvn 7. 1906 wl par m lo&"-,$ c-rea 

atm cn me vrcpord Ccoes or : the rem me ovawe at the centrd dflce ol TWC bcoted m 42448 NJrtn KJS. ~ak JS lech. ndJW Cenla. WQ E. Adn. OW m d TMXC re- oflca Pamn no1 written cments :a 

comnodotmnceQwrw,ole~. 

mp to dtem the heom cartoct the ooency at (5r2) 230- 1450 RecNsrts moJd De mode ar fu m oovmce cs . Emma n Aurtn. Texm. m Augm 23. am* 
violations of the Texas Regulations for Control of Radiation. 'Ihe violations contributed to an accident that caused 

a signhicant threat to the health and safety of the public 

and, the environment and facilitated the possession of 

radioactive material by a munbu of the gmual public 

who wes not aware of the presence of the radioactive 

material. 

A wpy of all relevant material is available for public 

iaspecrion at the Bureau of Radiation Control Exchange 

Building. 8407 Wall Street Austin. Manday-Friday, 8:W 

am. to 5:W pm. (except holidays). 

Issued in Augin. Texas. on September 14, 1994. 

TRD9448033 Sum K. steeg 

Gm Counsd 

Toxm Deputmonl d M 

Fled: September 14, 1994 

Notice of Rescission of Orders 

Notice is hereby given that the Bureau of Radiation Control. Texas Department of Health. nsdnded the following 

. ordax. Pmugency Cease and Desist Ordu and Nolice of 

Vilation issued June 28. 1994. to North Main Dental 

Centu. 1925 Stuckwood, Houston. Texas 77008. holdu of. 

Certificate of Registration Number R19088; and Emugency Cease and Desist Ordu and Notice of 

issued August 4.1994. to west Houston (3hLopfactic 

Center. 12288 Westheknu. Suite 310. Houston, Turas 

77077. holder of Cutificate of Registration Number 

R17564. 

A .wpy of all relevant material is available for public 

inspection at the Bureau of Radiation Control Wge 

Building. 8407 Wall Street Austin. Manday-Friday. 8:W 

am. to 5:00 pm. (except holidays). 

lssued in Wn, Texas, on September 14. 1994. 

TRD-944- Sum K. stmg 

Gonoral Counsel 

Teur Doputmom d Hmlth 

Red: !%@- 14, 1994 

Texas Department of Human Seryices 

Public Notice-Open Solicitation 

Pursuant to Ti 2. Chapters 22 and 32 of the Human . Resources Code and 40 TAC 5192004. in the September 

11. 1990. issue of the Tw Register (15 T&g 5315). 

the Turas Department of Human Semi= ('IDHS) is 

announcing the reopening of the open solicitation period 

for Chckctt Number 053. identified in the July 26.1994, 

issue of the TLUU Register (19 TwrReg 5784). Eotential 

contractors desiring to mmtruct a Wbed nursing facility 

in the above refcmccd area must submit a written nply 

(as desaibed in 40 TAC 9192004) to TDHS. Gary L. 

Ah. CktSathn. Fkvidu Enrollment. and Billing Suvices. Long Term Care-Regulatory. Mail Code (3'-976). 

P.O. Box 149030. Austin. Texas 787149030. Upon receipt of a nply from a potential contractor. TDHS will 

place a notice in the TLUU Register to announce the 

closing date of the rcopMed solicitation period. 

Issued in Mi, Texas, on September 14. 1994. 

TRD-9448035 N.r Murphy 

SecWn Muuger. Medh and Pole . 

sbwlwa 

Tams Deputmenl of . HUI~M . Sorvlwa 4 

Filed: September 14, 1994 . . 

Te.xas Natural Resou* Conservation 

Commission 

Notice of Public Hearing (Flexible 

Permits) 

Notice is hereby given that pursuant to the requirements of 

the Texas Health and Safety Code Annotated. 9382.017 

(Vernon's 1992); Texas Govqnent Code Annotated, - 

Subchaptu B. Chapter 2001 (Vernon's 1993); and 40 

Code of Fedual Regulations (OR) 95 1 .lo2 of the United 

States Environmmtal Protection, Agency (EPA) regulations coacahg State Implun~tation P1i (SIP) . the 

Tuas Natural Resource Conscr)ra!ion Commhian 

mCC or Commission) will dud apublic hearing to 

receive.&mony contaming revisions to Chapter 116 and . . the SIP. 

The 'MRCC proposes a new Subchapter G. concaning 

Flexible Pumits. ?he proposed subchapter will create a 

new type of parnit called flexible pumits. A flexible 

pvmit will function as an optional alternative to the 

current precoastruction permit that exchanges operational 

flexibility for emission reductions with the final goal being 

a wellantrolled facility. A flexible permit will nplace 

any existing p~~rmction pumit that covers any facility 

included in the flexible permit A facility ownu or opustor may obtain a flexible pumit which will allow physical 

and opational changca (within qxdied limits.) as an 

alternative to obtaining a new source review pumit or in 

lieu af amending an existing permit A puson may obtain 

a flexible permit for a facility. group of facilities. or catire 

~~~~untandanemissionscagwillbeestablishedforthe 

faditk included within the flexible pmit 

A public hearing on the proposal will be held Octobu 3. 

1994 at 1090 am. in Room 201s of RJRCC Building E. 

lacated at 12118 North IH-35. Park 35 Technology CMttt. 

Austin. The hearing is structured for the receipt of oral or 

written comments by intercad perm. Individuals may 

pnsent oral statments when called upon in order of 

registration. Open discussion within the audiuace will not 

occur during the hearing; however. a TNRCC staff membu will be available to discuss the proposal 30 minutes 

prior to the hearing and will answer questions before and 

after the hearing. 

Writtea comments not pmeatcd at the hearing may be 

submitted to the TNRCC central office in Austin through 

October 21,1994. Materid received by the TNRCC Regulation Development Section by 400 pm. on Octobu 21. 

1994 will be considered by the Commission prior to any 

final aaion on the pmposal Copies of the revision are 

available at the central &a of the TNRCC located at 

12118 North 1-35, Park 35 Technology Center. Building E. 

Austin. and at all TNRCC regional offices. Please mail 

written commurtr to the Regulation Qevelopment Sdon. 

Air Quality manning. P.O. Box 13087. Austin. Texas 

199~e&eg 7474 September 20, 19W Texas Regr 
78711-3087. For furthu infodon. contact Garv . -- 

%Arthur at (512) 239-1917. 

@ Pwns with disab- who hme spd.l comunica!ion 

or otha accommodation needs who art - ~Ianninn -- -~- to 

.. ahnd 

the hearing should contact the agency at (512) 239-1459. 

Requests should be made as far in advance as possible. 

North Central Texas Council of 

Governments 

Request for Consultant Proposals 

This~uestbytkN~CentralTexa~~~fGOVanmcnts~~for~tserv~ismedlrnder 

the prwisio~ of Texas (Evil Statutes. Article 6252-11c. 

NCKXXi is nqueahg proposals hm CO- to. conduct a trampmion needs tksasmtnt for the city of 

Grand Prairie. Tutas The consultant will corrdud a study 

of the &&g public tramportation system in cmjmch 

with system ArmlnaP to detumine iahuent we. in 

the current ~ymm. The coxmhnt will ncommend inn* 

vative strategies to fund capital and opMtiag costs of the 

proposed public trsnspatation system and in particular. 

for the eldaly and &led Wt senrtces. 

thisshrdywillberccommcndcdbytheProjectReview 

Commitk& The PRC will use evahuuial aituia 8Dd 

&odo&gyconsistmtwiththescopeofsuvicescontained in the Request f& Proposals. The NCXOG htive Board will review the PRC's recomm* and, if 

found~tah4willisnreanawardofcoatrad 

~NcrcoG.inaccordancewithntlevIofthe 

Civil Rigla Act of 1964.78 Stawe 252 41 Unibd States 

CodeUXX#to~;Md'Ne49.Codeofr;edual 

Regulations. Degm d Tnnsportation. Subtitle A. 

O&#oftheSarrtsy..PartOlre.Nondis' ' " in 

Pederslly Assisbed Prognms of the Department of Tmpwtatimissuedpursusattosrrch~haebynotifiesall 

progcsus that it will afhmtively as+rc that in regard to 

any CQ1trad entertd into pumAat to this advat. 

dkdvant&~~1taprkwillbeaffdrdedfull 

to submit pmposals in nsponse to this invita- 

=not~~.p.imtm(trpuadt 

of race. color, su age, national origin. or dhbiUy in 

caukation of an award. 

Due Date. Pqn& must be submithd no later than 12 

noon. Whday. Octoixr 5. 1994. tp David A. Faria. 

priacipal Tr ~.Norh CeatralTutas 

h~dl of GOV-k, 616 Si pLp hire. k~nd 

k. or P. 0. Bax 5888. Arliogtcm. Texas 76005-5888. 

Par more infonnazial and copies of the Request for Proposalo. -tact Shirley Heary. (817) 695-9243. 

ksued Texes. on Seprmhr 8, 1994. 

Filed: Sptmbw 12. 1994 

On-Site Wastewater Treatment 

Research Council 

Notice of Workshop 

The Texas On-Site W~~ Treatment Research Council will host a facilitated workshop at 8:U) am. on Thurs- 

&ye September 22. 1994. at the Austin. Mmbtt at the 

Cepil. 701 Eest 11th Stnet. Austin. Turas 78701. The 

purpose of this WO- is to provide a public fwum for 

the discussion of r~ch needs in the field of on-site 

disposalofdomesticw~tersTheunp~willbe 

specifically directed to reridentiel (single family and othuwise) and nm-hazardous commercial ap~lica!ions which 

g.enuate less than 5.000 gallons of -&wage per day 

(.MMGD). 

The Texas Natural Resource Conservation Commission ' will provide a trained facilitator to conduct this wokshop. 

Persans interested or involved in this subject. including 

industry. regukors. re& facilities and the general 

public an invited 

For additional informafion. lease contact WMUI 

Saxnuelson at (512) 2394769;'or Ted Johns at (512) 

2394776. 

Lssued in h&~. Tek. on September 13, 1894. 

Filed: Seplember 13.1944 

Public Utility Commission of Texas 

Notice of Intent to File Pursuant to 

Public Utility Commission Substantive 

Rule 23.27 

Notics is given to the public of the intent to file with the 

Public Utility Conmkion of Texas an application 

purmant to Public Utility Commission Substantive Rule 

2327 for approval of customer-spedfic PLEXAR-Custom 

Service for Amarillo ISD. Amarillo. Tucas 

Doclat Title and Number. Applicstion of Southwcslun 

Bell Telephone Company for Approval of a 722-Station 

Addition to the Exishg P~QcBT-CUS~O~ Swice for Amarillo ISD pursuant to Public Utility Commission Commission Substautive 2327. Docket Numbu 13408. 

The Application. Southwestern Bell Tdephonc Company 

is requesting approval of a 722-station eddition to the 

existing b-Custom Service for Amarillo ISD. Tbe 

gugqhic service market br this specific SUVict is the 

Amarillo. Tam area 

Persons who wish to combent upon the actb sought 

sbould contad the Public Utility Coinmissial of Tucso. at 

7800 Shoal Cnek Boulevsrd, Austin. Texas 78757. or call 

the Public Utility Commission Public Infomation W011 

at (512) 4584388. or (512) 458-0221 fot teletypewriter 

for the deafissued in Austir. Texes. on September 13. 1994. 

TRD9448010 John M. Wlor 

8ecmmq d the Commtukn 

Publc UIUy Commb.kn d Tam 

Filed: Sepember 13. 189) 

ADDITION September 20, 1994 19 TexReg 7475 
(16) -Hazard R. Fenwick J. 

Kalish S, Redrnond J. Reeves G. Reid S. 

Frymoyer J: Functional Restoration With 

Behavioral Support A One-Year Perspective Study of Chronic Low Back Pain Patients. SPINE 14:157-165. 1989. 

(17) Wey J. Mayer T. Cox R. 

Gatchel R. Smith J. Mooney V: Quantifiia- . tion of Lumbar Function 5: Reliability of 

Range+f-Motion Measures in the Sagittal 

Plane and In Viva Torm Rotation Measurement Techniques. SPINE 11:31-35. 1986. 

(18) Leavitt S. Johnston T. 

Beyu R: The Process of Recovery: Patterns 

in Industrial Back Injury: Part 1. Costs and 

Other Quantitative Measures of Effort. Industrial Medicine 40:7- 14. 1971. 

(19) Loebl W: Measurements of 

Spinal Postuz and Range in Spinal Mwements. Ann Phys Med 9:103 1967. 

(20) Mayer T. Gatchel R: Functional Restoration for Spinal Dimrdus: Tht 

Sports Medicine Approach Philadelphia. 

PA, Lea & Febigu, 1988. 

(21) Mayer T. Gatchel R, 

Kishino N. tt. al.: Objective Assessment of 

Spine Function Following Industrial Injury: 

A Prospective Study With Comparison 

Group and One-Year Follow-Up: 1985 

Volva Award in Qinical Sciences. SPINE 

10:482493. 1985. 

(22) Mayer T. Gatchel R. 

Kishino N. et al: A Prospective Short-Term 

Study of Chronic Low Back Pain Patients 

Utilizing Novel Objective Functional Measurement. Pain 25:5368. 1986. 

(23) Mayer T. Gatchd R, Mayer 

H, et al: A Prospective Two-Year Study of 

Functional Restoration in Industrial Low 

Back Injury: An Objective Assessment Procedure. JAMA 258-1763-1767. 1987. 

(24) Mayer T, Smith S. Keeley 

J. Mooney V: Quantification of Lumbar 

Function Part 2: Sapjttal Plane Tnmk 

Strength in Chronic Low Back Pain Patients. SPINE 10:765-772. 1985. 

(25) Mayer T. Smith S. 

Kondrask G. Gatchel R. Carmichael T. 

Mooney V: Qudcation of Lumbar Function Part 3: Preliminary Data on Isoldnetic 

Torso Rotation Testing with Myoelectric 

Spectral Analysis in Normal and Low Back 

Pain Subjects. SPINE 14912-920. 1985. 

(26) Mayer T. Tencu A. 

Wfmn S. Mooney V: Use of 

Noninvasive Techniques for Quantification 

of Spinal Range-of-Motion in Normal Sub 

jects and Chronic Low-back Dysfunction 

Patients. SPINE 9588-595. 1984. 

(27) Mellin G: Mauurunent of 

Thoramlumbar Posture and Mobility with 

Myrin hdhorneter. SFQW 11!759-762, 

198(5, 

(28) Nachemsm A. LaRocca H: 

Editorial. SPINE 12427.429, 1987. 

(29) Oland G. Tveittn G: A 

Trial of Modem Rehabilitation for Chronic 

Low Back Pain and Disability: Vocational 

Outcome and Effect of Pain Modulation. 

SPINE 16:457459, 1991. 

(30) Pamianpour M. Nordin M. 

Kahanwik N. Frankel V: 1988 Volvo 

Award in Biomechanics: The Triaxial Coupling of Torque Gwluation of Mwements 

on the Motor Output and Movement Patterns. SPINE 13:982-992. 1988. 

(31) Porn M, Leggett S. 

Graves J. et al: Effect of Resistance Training on Lumbar Extension Strength. Am J 

Sports Med 17:624630. 1989. 

(32) Reed. Presley: The'Medical 

Disability Advisor. Second Edition; 

Horsham. PA: LPR Publications. 19% 290. 

473. 

(33) Sachs B. David J. Olimpio 

D. Scala A. Lecroix M: Spinal Rehabibtion by Work Tolerance Based on Objective 

Physical Capacity Assessnent of Dysfunction: A Prospective Study with Control Sub 

jects and 12-Month Review. SPINE 

15:1325-1332. 1990. 

(34) Schwarts. D'.. Appropriate 

Referral to Inpatient vs Outpatient Pain 

Management Program: A Clinician's Guide. 

PAIN DIGEST. 1: 2-6. 1991. 

(35) Smidt G. Blantied P. Analysis of Strength Tests and Resistive Exercises Commonly Used for Low-Back 

Disorders. SPINE 12:1.025-1034. 1987. 

(36) Smith S. Mayer T. Gatchcl 

R. B& T: Quantification of Lumbar 

Function 1: Isometric and Multispstd 

Isokhetic Trunk Strength Meesures in Sagittal and Axial Planes in Normal Subjects. 

SmNe 10.757-764. 1985. 

(37) Spcngler. DM. Oucllette. 

EA.. Battie. M.. Zh, J. (1991) Eleaive 

discectomy for hamiation of a lumbar disc. 

THIj JOURNAL OF BONE AND JOINT 

SURGERY. 72-A2. 230-237. 

(38) Sullivan. MJ-L.. Reesor. 

K, Mjkail, S.. mu, R. The Treatment of 

Depression in Chronic Low Back Pain: Review and Recommendations. PAIN. 50. 

5-13. 1992. 

(39) Thorwn k Kin J: 

Td Muscle Strength During Constant 

and Velocity Movcmmt. Scand J Rehab 

Mtd 14:61-68. 1982. 

(40) Turner. RS.. Leiding. W.C. 

(1985). Conelation of the MMPI with lumbosaaal spine fusion dts prospective 

study. SPINB. 10.10, 932-936. 

(41) Ward, N,O,, Blmm, V.L., 

rnedel, R;O, (197@, 'h! Bffwivenw of 

tricyclic antidepressants in the treatment of 

coexisting pain and depression. PAIN, 7, 

331-341. 

This agency hereby certifis that the proposal 

has been reviewed by legal course1 and 

~wd to wwm the age~s to ( 

adapt. 

lssued in Austm, Texas. on Seplember 7. 

1944. 

Earliest possble date d. ad@i: October 

21. 1944 

+ + + 

TITLE 30. ENVLRONMENTAL QUALITY 

Part I. Texas Natural 

Resource Conservation 

Commission 

Chapter 116. Control of Air 

, Pollution for New 

Construction or Modification 

The Texas Nahrral ReXNce Catservatbn 

Commission (TNRCC) proposes new 

§116.13. an amendmerd lo §116.110. and 

new ~116.710. 116.711. 116. 716116.18, 

116.720-116.72% 116.730,116.740,116.750, 

and 11 6.760. Maw Of the poposed Sedions 

will compise a new Subbpter G, concern 

ing Flex* Permits. as 'part d Chepler 11 8. 

concerning Contrd d Air Polkrtbn By PemiIts 

for New Consbudion a Modi New 

g116.13 is pOposed to define terms minted 

to flew permits and 91 16.1 10 is amended 

to incCde reference to flexble perm'ds. 

The proposed new Sthha@er G hes been 

devekped in respome to drection tom the 

Comnssion at the January 21. 1994 pdcy 

and bcal programs under the supervision d 

TeskFace21.Thepopdsed~erWn 

aeateanewtypeofpermitcelledafieW 

permit. The fieme permit wll fundbn as an 

optional alternative to the peGarstnrcbbn 

permits that are ncm arrthaLed in 

-er 6, concen~ing New some Review Pemits. The lexble permil is designed 

to exchange llexbility fa emission recluclias 

with the finel goel being a welCcontrolled faditv. 

Only one flexible perml may be issued for a 

perticub plant site a active account. Hwever, muti emission c8ps. multple irdivi 

ual emission hiits. a any canbination 

~d may be indrded in a Ilexble pennit 
then become the conbolliq authorization for 

ell faciillk bduded in the permit, replacing 

any eSng permits thal my have been ep 

pfi to a0 or part of these faciGties. 

New 01 16.710. concerning ApplWWy 

tak the general tern or conditions urder 

which a ftexble perma can be obtained. New 

01 16.711, concerning Flexble Pmit ~pplieafiocrlisLsttmaiteriafaaMainingaflexW 

PemQ and ttm reqrried contents of a flexibbe 

perma eppScation. New 51 16.71 4, concerning 

Review Schedule references the 

ex- mil review schedule used in new 

sarce review pennits as being eppIicable to 

fbxble hb. New 51 16.715, Concerning 

Oeneral and Special Condaions lii condi- 

~d~q@cabirayforallRex&k 

Perm& New 6116. 716. concernin0 Em&- 

-sion - and iik~id~ Emission Mitiom 

spedfias how emission caos and indivdual 

emksion ceps are readjusted. New 51 16.717, mirO lmplemerlaikn Schedule for Additional Conbdls requ-kes a new mit to 

specify 8.n inplementrdion sckltde whenever eddW oonbds ere requred to meet 

an emission cap. New §116.718. concerning anificent hllkSh defines 'sign*- 

cat emissiors inwasam in terms of the 

emission cap or -*dual emission liiaabjon. 

New §116.?20, concerning limiaation on 

Physical and Operationel ChanOes precludes hcmeses in achrel emksions a! taalitii not 

mered by the I)exble permit unless those 

faaWi am autharked prrsuant to §116.110. 

New 31 16.721. concerning Amenbnents and 

Alteratiorsdefmesthetypesddrangestoa 

MCty Uml requie a pennit amendment or 

alteration end when mitlen mfication of 

physicel a cperational changes at a fad'by 

cavered by a Rexble pennit is requied. New 

§116.722, axl~eming Distance Limitations, 

§116.730, amxning Corrpliance History. 

and 01 16.740. Eonaeming PdSc Notice and 

Canmerd me that the exkting requiements 

forttresetapicsinSLlbchaplerBalsoapptyto 

fie- permb. New 51 16.750, concerning Rexble Perml Feessetsfeesfaafleldble 

perm&. New 0116.760, concerning Flexble 

Pemid Renewal Wes thst the existing re 

quieme~fortt~islcrpicinSubchaplerBelso 

to Rexble permits. 

Rexbilirywilbepmvidedfaphysicaland 

operatianai chaqps at taddies brduded in 

themxZJepermaas bngasthe emission 

cep(s) or urdnridual ' emission 6- are 

ndaxcetaded. ki Cheper 116 isarrentty 

written. physical or opwakd changes canndbemedeto~f~wilhartpior 

adlorizatial. 

The mble pemitting pocess wib esiimle 

thearrentpraeb%ealhBvitoslbmam 

lanendment epplii each time an 

aperatbrralaphysioalchmgeismadeatthe 

faciRy.The - beneRs d thb op 

srm --the permating of 

mas. slrbstantial emisspn re 

bdiifranthew-oicontrds,and 

an aVeren evaluetim of emission inpacts. 

The proposed Sb&apter G will ellon only 

oneflexblepamilpera#xwrt.Thepermit 

wil estab&h an emksDn cep, mMi emission caps, or individuel emission FaniiDns. 

asspecifiedbytheepplicant.tocavff all 

souces included in the &xi& permit. Short 

term emission cap(s) or ind~dual emission 

limii will be based rpon an estimation 

d ww case namal ern-kbns. Upset and 

maintenance related emissions will be excluded in thq'calculation of the emission 

as) or individual emission firnilation. The 

emission cap(s) or individual emission limililtion may inckde an insignficanl emission facta to allow fa flexblity. 

Emission limits will be established on a 

podhrtant-by-nt basis. The micant 

may specify which pdlutants are to be irr 

duded in the emission as), howwer, the 

flexible permit must contain an emission cap 

or individual emission limitation for each pdManl. jndividual emisson limitations may be 

included in the permit wen though an emissiar ,'cap may exist for that. pdhdant. 

and physical changes, other than 

COfslrdon of new facilities ~nduding repiacement faaWms), may be made urdec the 

authaav of the flexible ~ermil if the chanaes 

will re& in an insiinifidant inme& in a$ual 

emissions. Operational and Phvsical chancres 

resulting in a significent in&& will not-be 

allawed under the arffhorily d a flexble permit. A change m the due .of the emission, 

i.e.. a new air ccmtam-nant not pwiously 

emilled from a particular unil a source, will 

nd be alkwed udr the flexble perma with 

ad a permit emendmen!. .. 

Modeling issues fa tlexible permits inin. be 

covered by current TNRCC rnodelii gudeGnes. The extent of mod&ng required for 

Reae perm'& will be determined by a re 

view of past modeling, any appopriafe ambient monilaing, canpIianca histay, and 

em'ksion redudions due to the imdernentation of contrds. Reductions in emissions yitl 

be a key fada in deddmg the edent of any 

modeG required. 

The permitlee mrkt measre the emissions 

by means such as continuas emission monk 

tas, initial compliance testing with ongoing COnptianCe determined thr~gh mgi-ng 

calcubtions based on measured orocess 

veriabks, parametric or pediclive modeling 

techniies, or other wocriate technioues. 

records asdefined by permitccndaii will be maintained to demonstrate 

comp6anca with emeksion cap(s) and iikvi3- 

ual emission limitations. 

In most cases, existing tadiies which have 

been permitled within the last five years will 

be consaered to have Bd Available Control 

Technob~y(BACT)forthepuposesofthese 

rules. However, facilities which have been 

pemed within the five yeas are nd 

exduded &om a arrent BACT and impads 

review. The renewal period for a Rexble permit will be 10 yeas to allow for evahmtion d 

andd technology and emission However, the staff may shorten the renewal 

period for cause. Ex- public notification 

requhments kr .-ion permits will 

be made eppliceble to mai pemits. 

In eccordance with guidance ded from 

theComnissiona!theJune29.1944a~enda 

meeting. any nde wed as a result d this 

proposal will be reevaluated by the staff 

wilhin om year of the date 0s approval. 

The TNRCC staff 'wests comments on the 

tollowing qxcific issues: stafl in 

51 16.71 6(c) to ah ternporery shutdcms for 

~p to 12 months withoa reducing the emission cap. We request commenls on whether 

this is an eppopriate amwnt of time to be 

cons- a temporaty shuldorm; siafl requests comments on resetting the emksion 

cap to more ckrxly reMd the add emissions wer the lie of the fiexible permit at time 

of renewal; staff requests comments on requiing readjstmnt d the endssiom cap 

&or hdwidual emission firnitation as a re 

sull oJ emission reductiocl adivies requred 

by rules plrruant the Federal Clean M Ad: 

staff reqkts comments on whettw ern$ 

sim redudions resuttina from the imtalkdii . --- - - 

of controls should be illowed to be banked 

for plrposes ofuse as OW in 

nonattaimnl areas 

Stephen Minii wet and Planning Dwiskn. has determined lhad for each yeer of the 

lirsl fiveyear period the proposed seaions 

are in effect them will be some cost to me 

and bcal wemmerbs. The casts wouid be wi to review the ~ex&k permit mtions Since the flexble permit is oplional, the 

number d flexble permit sppEcations my be 

oftset by a redudion in applications for corr 

ventional new so- permb. Therefore, it k 

impossble to estimate the adual fkcal impad. Permit sW resocrrces may be merely 

bgnsfmed +om conventional perma review 

to ftexble permit review. 

Mr- Minick also has determined thet fa each 

yeardthefrsttiveyearstheprqxrsedsec 

ti- are in effect the plbSc benefit anticipated as a resull of implementing the 

sections will be a redudion in emissDns d all 

categorbsdwktanb and areduction in the 

cost of doing business in the Sate of Texas. 

The hxal -inplicatii for facilities and smal 

businesses affeded by the rule are elso inde 

terminate. Since the Reldble perma program 

~~,thefeesareonIyreqrriedifan 

applicant chooses the Rexble pmit @m. 

These fees are likely to be bpIy offset by a 

reduction in preconstruction pennit applications urdec Subchepter B. There is no ansicipated economic cost to persazs who are 

req- to comply wiih the sediw as poposed. 

A phk hearing on this proposal will be held 

on Odober 3, 1994, at 1090 am. in the 

Auddaium (Room 201s). Buading E. of the 

TNRCC Central Ohice located at 121 18 Nath 

M5, Wm. Texas 78753. MCc comments. 

both aal and den, on the propod 

changes are iwikd a! the hearing. likivav 

ak may present ocel memerls when cased 

rpon in ader of regbbetii. Open discussion 

within the ad- will nd o~ar drring the 

hearing; however. a TNRCC staff member 

wiabeavaaableto&sasstheproposel30 

rninrpespiortothe hearing endwill ananer 

questkns before and aner the baring. 

Written unnments not fxesmted a! the hwinpmustbesrrbmitledtotheTNRCC,Office 

of Air Quatity. Reguletii Dedopmerl See 

trm. P.O. Bax 13087. Austin. Texas. 

7871 1-3087, no hW than Odober 21, 1944. 

Werial received by 4m p.m. on thal date 

win be considered by the Commission piar to 

any final &on on the proposed regulation. 

Capies d the proposed regulstians are available al the R~lation Devekpnenl Section 

d the TNRCC Ai Quality Planning Di 

+ PROPOSED RUBS September 20, 1994 19 TexReg 7335 
bcated crf 121 18 NMh IH-35, Park 35 Techndogy Center. BuWig E, Austin. Texas 

78753, and at aU TNRCC Air Roqam re 

gional Mi. Fa fmher inbmatiin, contact 

Grvy Whur af (512) 2341917. 

Persons with disabilities who have special 

canmrnieation or other accommodation 

needs wl~o are plannii to attend the hearshould contad the agency & (512) 

2391458. Requests should be made as far in 

as possble. 

Subchapter A. Definitions 

. 30 TAC 0116.13 

The new section is prcpced under the Texas 

He& and Salety Code (Vernon I=), the 

Tern Cleen Ai Act VCAA), w.017, which 

pmvides the TNRCC with the authority to 

a!@ mles consistent with the policy and 

puposes d the TCAA 

The pmposed new section affects the Health 

and mty Code, §382.017. 

8116.13. Flexible Permit Definitions. The 

following words and terms, when used in 

this Chapter. shall have the following maings. unless the conk& dearly indicates 

othuwise. 

Bmissions cap-Emission limit for a 

specific air coataminant based on total 

emissions of that pollutant adjusted by an 

Insignificant EhiEmissions Factor from all 

sources that are included in a flexible permit 

Eqectcd maximum capacity-The 

maximum capacity of a facility according to 

its physical and operational design and 

planned operation 

Individual emission limitation-Emission limit for a specsc air contaminant not covered by an emission cap for 

an individual fadlily-adjusted by an Insignificant Emissibns Factor. 

This agency hereby cm%i that the propwal 

has been reviewed by legal cwnsel and 

kund to be within the agency's authority to 

edopl. 

Issued m Austin, Texas, on Seplember 13. 

1994. 

TRD--8 Muy Ruth Hddor 

Dlrodor. Lo@ DMdon 

Tan8 wnl Romrco 

conr0rvak.n 

Cmmfmbn 

fJOSbb date of edaption: Odcber 

21. 1994 

Fa hrther infonnetion. please calk (512) 

PSI 500 

Subchapter B. New Sour& I 

Review Permits 

Permit Application 1 30 TAC 0116.110 

The amendment is pmposed rnder the Texas 

Heallh and Safety Code (Vernon 1952). the 

Texas Clean Air Act (TCM), B.017, which 

provides the TNRCC with the aldhority to 

edopl rides dstent with the poficy and 

purposes d the TCAA. 

The proposed amendment Mecs the Health . and Safety Code, 982.017. 

$91 16.1 10. Applicability. 

(a) Ftrmit to consfsuct Any puson 

who plans to construct any new facility or 

to engage in the modiilcation of any &ting facility which may unit air contaminants into the air of this state shall obtain a 

parit pursuant to 9116.111 of this title 

(relating to Genual Applications). satisfy 

the conditions for a standard permit 

pursuant to the requirements in Subchapter 

P of tbis chapter (relating to Standard Permits). satisfy the conditions for a flexible 

pegnit pursuant to the requirements in 

Subchapter G of this chapter (relating to 

Flexible Permits), or satisfy the conditions 

for exempt facilities pursuant to Subchapter 

C of tbis chap& (relating to Permit Exunp 

tiom) before any actual work is begun on 

the facility. Modifications to edhg permitted facilities may be handled hgh the 

amendment of an urisfing permit or an 

existing flexible permit. 

(b)-(e) (No change.) 

Thiisa~encyherebycwiithattheproposal 

has been reviewed by legal counsel end 

faurdtobewithintheagency'sarlhaityto 

adw. 

Issued in Mi Texas, on Se@ember 13, 

1994. 

Earliest possble date of edapii: October 

21. 1944 

For futher information. please d.: (512) 

~41500 

Subchapter G. Flexible 

Permits 

Permit Application 

30 TAC Qb(116.710, 116.711, 

116.714-116.718, 116.720-116.722, 

116.730, 116.740, 116.750, 

116.760 

Thenewsectionsarepmposedunderthe 

Texas HeaEh and Safety Code (Vemocl 

1992). the Terrr~ Chn Ai Ad VCM), 

§382.017. which pdes the TNRCC with 

the authority to &is consbtenl with 

thepolicyendprpasesdtheTCA4 

The proposed new sections etied the Health 

ad safety Code. w.017. 

$116.710. Applicability. 

(a) Flexible ptrmit. A person may 

obtain a flexible pumit which allows for 

physical or operational changes as provided 

by this subchapter as an altunative to obtaining a new source review permit undu 

8116.110 of this title (relating to Applicabi), or in lieu of amending an existing 

permit unda 81 16.1 16 of this title (relating 

to Amendments and Alterations). A person 

may obtain a flexible permit pumurnt to 

91 16.71 1 of this title (relating to Flexible 

Pvmit Application) for a facility. group of 

faditks, or account before any actual work 

is begun, provided howmu: 

(1) only one flexible permit may be issued at an tmmnt sire; 

(2) modifications to existing facilities covd by a flexible permit may be 

handled wgb the ameudment of an existing flexible permie; and 

(3) permitting of a new facility 

may be handled through the amendment of 

a flexible permit 

(b) Operations certification. Any 

perm who obtains a flexible permit under 

tbis subchapter shall comply with 

9116.110(b) of this title. 

(c) Change in own-. 'Ihe new 

ownv of a facility, group of facilities. or 

account shall comply with 9116.11O(c) of 

this title, provided howexu. that all facilichange ownership at the same time and to . . 

the same person, or both the new ownu and 

existing &mit holder must obtain a pwmit 

altuation allocating the emission csos or 

individual -0; limitation prior tb the 

Mu of the permit by the T& Natural 

Resource Conservation Commision ' 

('IN'RCC). After the sale of a facility or 

facilities, but prior to the transfer of a permit requiring a pennit alteration. the original permit holdu remains responsible for 

uwring camplianct with the existiog fkiblepermitandallrulesandregulationsof 

the TNRCC. 

(6) Submittal under seal of registered professid engineer. All appbtbns 

for a flurible permit or flexible pwmit 

amendment shall comply with 9116.11qd) 

of this title. 

(e) Responsibility for flexible pumit application. The ownu of the facility. 

group of fdtis. ar account or the operator of the facility. group of facilities. or 

account wb is authorized to ac€ for the 

ownu is nxpnsible for complying with 

this section, uccgt as provided by subsection (c) of this section. 

§116.711. Flexible Permit Application. Any application for a new flexible 

1 19 TexReg 7336 September 20, 1994 Texas Register r 

I 
permit or flexible permi! amendment must 

indude a completed Form FT-1 Genual Ap 

plication The Ram FT-1 must be signed by 

an authorized repr&e of the applicant. The Form PI-1 specifies additional 

support information which must be provided before the applhfion is deemed complete. In order to be grand a flexible 

pd or flexible permit amendment, the 

ownu or operator of the pmposed facility 

shall submit information to the Tuas Natural Resow Conservation Commission 

(RTRCC) which demonstrates that all of the 

following are met 

(1) Prokction of public health 

and welfare. The cmhiw from tb proposed facility, group of facilities. or account 

as dctumined pursuant to 91 16.716 of his 

title (relating to hision Caps and Ipdivid- ual Bmission Limitations). will comply with 

all~l~~dregulationsoftheTNRCCand 

with the intent of the Taurs Clean Air Act 

(XAA). inchding protection of the health 

adphysicalpropertyoftbepeople.Inconsidering tk isumce of a fladble permit far 

construction or rnodihticm of any fecility, 

group of fscilities. or account within 3.000 

feet or less of an elementary; junior 

bigh/mWe, or senior high school, the 

TMCC shall collsidu any possible adverse 

sbort-ttrm or long-twILl side effects that an 

air contaminant or nuisance odor from the 

facility, group of fscilities or account may 

have on the individuals attdhg these 

school facilities. 

(2) Measunrnent of emissions 

The praposed facility. group of facilities. or 

account will have provisions for measuring 

tho anissim of sir -ants so deermirrsd by the Bxautive Dinctor. This may 

include the installation of sampling ports on 

exhaust stacks and comction of sampling 

pladams in mrdance with guidJiaca in 

the TNRCC "Complirmce Sampling hhuaL" 

(3) Best Available Control 

Technalogy (BAC'O. 'Ihe facility. group of 

faciU& or ~COOU~~ will utilize BACT, 

with considedon given to the technical 

pm&abi€ity and ecoaomic nas~nabluress 

of reducing or chinating the emissiom 

from the facility on a facility. group of 

faditks, or munt basis. Control technology beyond BACT may be used on certain 

faciiitiea to provide the Mission reductions 

~tocomplywiththisrrquirement 

on a group of f.cilities or rrecarat basis. 

providsd however, that the &sting level of 

caatrol may not be lescned for any facility. 

For new faditiea, the use of BACT shalI be 

drmoxstrated for thc individual facility. 

(41 NCW ~ource mfmace Standatds (NSPS). ?he emissions 

fnwtachIff-dfrdlityasdcfinedin40 

CodeofPedenl~~~(CPR)Put60 

will meet at Iwt the rquir~mt~ of any )app~~SF'Saslisted~~1tle40 

CFR Part 60. promulgakd by the United 

States Environmental Protection Agency 

@PA) purwmt to authority granted under 

the Fkhal Clean Air Act (FCAA). 01 11. 

a amended. 

(5) National Emission Standards 

for Hazardous Air Pollutants (NBSHAPS) 

and Maximum Achievable Contzol Technology (MACXI. The missions from each facilityasdefinedin40CFRPart61wiU 

meet at last the requirments of any applicable NBSHAPS. as listed under 40 CFR 

(C) iden* each source of 

emissions to be included in the flexible 

permit and for each source of emissions 

identify the Emission Point Number (EPN) 

and the air contaminants uniw. 

(D) for each emission cap, 

identify all associated EF'Ns snd provide 

mission rate calculations based on the expected maximum capacity and the proposed 

control technolom, 

Part 61. or any standard. pmmul- @d (B) for each individual &- bg PA Pursuant to mth* OM~ hn limitation, identify the B~N and pre undu the FCAA. 0112. as amukl. . vide emission rate dcwm based on the 

(6) Performance dunonstration. 

Tk proposed facility. group of facilities. or 

account will achieve the performance specified in the flexible pumit application, The 

applicant may be required to submit additional engineuing data after a flexible permit has been issued in ordu to demonstrate 

further that the proposed facility. group of 

facilities. or account will achieve the performance spedied in the fl&ble pumit. In 

addition. initial compliance testing 'with ongoing compliaace dekmhed through engineering calculatians based on measured 

process variables. parametric or predictive 

monitoring. stack monitoring. or stack test- 

*kg may be nquirai 

(7) Nonattainment review. If the 

praposed fdty. group of facilities. or account is located in a nonattainment area. 

each facility shall comply with all applicable requinmats under the undesignatcd 

had concaning nonaoainment review in 

Subchapter B of this chaptu (nlatipg to 

Nonattaknent Review or Prevmtion of 

Significant Deterioration Review). 

(8) Wention of Signif--t 

Deterioration (PSD) dw. If the proposed 

facility. group of facilities, or account is 

located in an attabeat area. each facility 

shall comply with all applicable requiremento under the designated head conceming PSD in Subchapter B of this chaptu. 

(9) Air dispwsion modeling or 

ambimt monitoring. ComputtrLed air dispugion modcliag and/or ambient monitoring may be required by the TNRCC Fkmib 

Progrsm to determine the air quality hpacts from the facility, gmup of faciies. 

or mt. 

(10) Applimhn content In addition to my ok requirmmts of this 

chapter. the applicant sbsll: 

(A) ideotify each air contaminant for which an emission cap is desired, 

(B) identify each facility to 

be included in the flexible permit; 

eapaed m&um capacity and the proposed control technology. 

(11) Proposed control technology and compliance demonstration. The applicant shall specify the control technology 

proposed for each unit to meet the unission 

cap and dunonstrate compliance with all 

emission caps at potential maximum pm 

duction capacity. 

JI16.7I4. Application Review Schedule. The flexible pwnit application will 

be reviewed by the Tucsp Natural Resource 

Conservation Commission in accordance 

with 9116.114 of this title (relating to Application Review Schedule). 

$1 16.715. General and Special Condirions. 

(a) Flexible panits may contain 

gmal and special canditions. The holders 

of flexible perm* shall comply with my 

and all such conditions. Upon a specific 

finding by the Executive Dir- 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 under the undesignated 

headings of Subchapter B of this chapter 

relating to Nonattainment Review or Revention of Significant Deterioration Re 

view, the permit may include a special 

condition which requires the permittee to 

obtain written approval from the Exemtivc 

Dinctor before constitrding a facility udm 

a standard exemption or standard permit 

(b) A pollutant specific emission . cap or multiple unission caps andlor individual emission limM~ns shall be esCablishtd for each air contaminant for all 

facilities authorized by the flexible pumit 

(c) The following general conditions shall be applicable to evvy fkible 

permit. 

(1) Voiding of pumit. A flexible pamit or flexible permit amadrnent 

undcr this subchepta b automgicdly void 

if the holder fails to -lete construction 

as specified in the flexible pd. Upon 

PROPOSED RULES September 20, 1994 19 TexReg 7337 
request, the Executive Dinctor may grant a maintained at the nearest staffed location (d) There may be additional speone time 12-month cxt,ension of the date to within Texas specified by the permit hdder cial conditions attached to a flexible pennit 

complete construction. This section does in the permit application. This information upon issuance or amendment of the permit. 

not apply to physical or operational changes may include. but is not limited to. emission Such conditions in a flexible pumit may be 

allowed without an amendment under cap and individual emission limitation cal- more restrictive than the requirements of 

3116.721 of this title (mlating to Amend- culations based on a 12-month rolling basis this title. 

men& and Alterations). and. production records and operating 

(2) Construction prognss. The 

start of construction, construction intemptions dg 45 dayi. and completion of 

construction shall be reported to the appropriate regional office of the Twas Natural 

Resource Conswvation Commission 

FJRCC) not later than 15 worldng days 

afk occumnce of the event. 

(3) Start-up nofification The appropriate Air Program Regional Office of 

the RTRCC and any local program having 

jurisdiction shall be notified prior to the 

ummswnent of operations of the facilities authorid by the p&t in q~ch a 

manner that a repnxatative of the TNRCC 

may be present Phased construction, which 

may involve a series of facilities commencing qxdons at different times. shall provide separate notifica!ion for the 

mment of opuations for each facility. 

(4) SampIing requirements. If 

sampling of stacks or process vents is requiied the flexible permit holdu shall contact the Source and Mobii Monitoring 

Section of the TNRCC Office of Air Quality prior to sampling to obtain the proper 

date fonns and ~roudures. AU sampling 

ad testing procdurts must be approved bi 

the Executive Director and coordiaatedwith 

tbe appropriate Air Program Regional Of-- 

fice of the TNRCC. The flexible permit 

-hok is also mble for providing 

sampling facilities and condudng the Sampling opuations or contsacting with an indegendent sampling consultant. 

(5) Equivalency of methods. It 

shall be the responsibility of the flexible 

permit holder to demonstrate or otherwist 

jussity the equivalency of emission control 

methods. sampling or othv emission teshg 

mtbrods, and monitoring methods proposed 

as ahnatives to methods indicated in the 

coditions of the flexible pumit Altemative methods shall be applied for in writing 

ad must be reviewed and approved by the 

Executive Director prior to their use in fulfilling any requirmcnts of the pumit 

(6) Recordkeqing. A copy of 

the fkdlc permit along with information 

ad data &ent to demonstrate continuous compliance with the mission caps and 

individrral &on limitations contained in 

the fkible permit shall be maintained in a 

file at the plant site and made available at 

the request of personnel from the TNRCC 

or any air pollution control program having 

jurisdiction. For facilities that normally opvatb unattended, this information shall be 

hours. Additional recordkeeping -requirements may be specifred in special conditions attached to the flexible permit 

Information in the file shall be retained for 

at least two years following the date that the 

information or data is obtained. 

(7) Maximurn allowable ernission rates. A flexible ~dt covers only 

those sources of &ons and those a& 

contaminants listed in the table entitled 

"Emission Sources-Emissions Caps and Individual Emission Limitations" attached to 

the flexible permit. Flexible permitted 

sources are limited to the &on limits 

and 0th- conditions specified in the table 

attached to the flexible permit. 

(8) Emission cap readjustment 

If a scheduk to install additional controls is 

included in the flexible pcrmit and a facility 

subject to such a schedule is taken out of 

suvice. the emission cap contained in the 

flexible pennit will be readjusted for the 

period the unit is out of service to a level as 

if no schbdule had been established. Unless 

a special provision specifies the method of 

readjustmmt of the emission cap. a permit 

alteration shall be obtained 

(9) Maintenance of emission 

controL The facW covered by the fle!.xible pennit shall not be operated unless all 

air pollution emission capture ahd abatement quipment is' maintained in good 

worldng or& and operating properly during normal facility opuations. Notification 

for upsets and maintenance 'shall be made in 

accordance with 8101.6 and 8101.7 of this 

title (relating to Notification Reqhmtp 

for Major Upset and Notification Rquiremeas for Maintenance). 

(10) Compliance with rules. 

Acceptance of a flexible permit by a pennit 

applicant constitutes an acknowledgement 

and agreement that the holder will comply 

with all Rules. Regulations. and Orders of 

the Cummission issued in conformity with 

the Texas Clean Air Act and the conditions 

precedent to the granting of the pumit If 

more than one state or federal rule or regulation or flexible permit condition are applicable, then the most stringent limit or 

condition shall govern and be the standard 

by which compliance shall be demonstrated. 

Acctptancc includes cansent to the entrance 

of Commission unployecs and agents into 

the .pmnipxJ prvniscs at reasonable times 

to meshgate conditions relating to the 

emission or concentration of air cantaminants. including compliance with the flexible permit. 

5116.716. Emission Caps and Individual 

Emission Limitntim. 

(a) Emission caps. *Each mission 

cap far a specific pollutant will be established as follows: 

(1) emissions will be dculated 

for each facility based on application of 

current Best ~vailable Conmi ~0311olo~~ 

at expeded maximum capacitr. 

(2) the calculated emissions will 

be summed 

(b) Individual vnission limitations. 

An individual don limitation will be 

established in the same peait for each 

pollutant not covered by an mission cap 

far facilities covered by the flexible pMnit 

In addition. an individual emission Itnitation may be established for a pohtant covered by an emisdon cap when thecxpcad 

capacity of a facility is less than the expected maximum cap&& to prevent a facility from twxdng aais!iion levels 

appropriate for the proposed controls. 

(c) Readjustment of emission cap. 

If a facility subject to an emision cap is 

shut down for a period longer than 12 

months, the mission cap shall be nadjusted by lowwing 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 flexible permit, an mission cap shall be 

adjusted by modifying the emissions cap 

-WY. 

(d) ImignSeant Mlission factor. 

The unission caps and in- emissions 

limitation calculattd pursuant to this don 

may include an Insignificant Emisdons Factor which docs not exceed 9.0% of the total 

emission cap or individual unission lLnitation. 

$11 6.71 7. Implementation Schedule for Additional Controls. If a facility reqh the 

installation of additional controls to meet an 

emission cep for a pollutant. the flexible 

permit shall spcdy an implunu1tatiOn 

schedule for such additional cmtrols. The 

pumit may also specify how the emission 

cap will be adjusted if such a facility is 

taka out of service or fa to install the 

additional control equipment as provided by 

the implmentation schedule. 

J116.718. Sign~xaru Emission Increase. An innease kt Mlissions from 

bpuationsl or physical changes at an &stTow Register + 
ing facility covered by a flexible permit is 

insigdicant. for the purposes of state new 

source review under this subchaptu, if the 

increase does not wrcetd either the emission 

csp or individual emission limitation. This 

section does not apply to an increase in 

emissions from a new facility nor to the 

emission of an air contaminant not previously unitted by an existing facility. 

5116.720. hitation on Physical and 

Operananonal Changes. Neither 

opuational nor physical changes authorized 

under this subchapter may result in an inutast in actual emissions at facilities not 

CQVU~~ by the flexible pumit unless those 

affected facilities an authorized pursuant to 

4116.110 of this title (relating to Applicabiity). 

$1 16.721. Amendments and Alterations. 

(a) Wbfe permit amendments. 

AU reprtsul~ns with regard to construction plans and operation procedures in an 

application for a =ble permit. as well as 

any genual and special provisions attached 

become ~difions upon which the subsequent flexible permit is issued It shalt be 

unlawful for any person to vary from such 

rep-tation or flexible permit provision if 

tbe change will cause a change in the 

method of control of emissions. the character of the emissions, or will result in a 

scant increase in ~OI~S, unless application is made to the Executive Director 

) m anid the flexible prmil in that regard 

and such amendment is approved by the 

Ekecutive Director or Commission. Applications to amend a flexible pennit shall be 

submitted with a completed Form PI-1 and 

an subject to the requhments of 51 16.71 1 

of this title (relating to Flwdble Permit Ap 

plimtion). 

(b) Flexible pdt alterations. 

(1) A flexible pdt alteration 

is for any variation from a representation in 

a flexible pemit application or a general or 

special pmvision of a flexible permit that 

does not rtquire a flexible permit amendment. 

(2) All flexible permit alteratbm which may involve a change in a 

general or spxhl condition contained in the 

flexible pennit. or affed control equipment 

Wormance must receive prior approval by 

the btive Director. The Extcutive Dire&~ shall be notified in writing of all OW kddc permit alterations within 10 

days ofof~lunenting the change. unless the 

parnit prwides for a different method of 

notjfmtbn Any flexible pumit alteration 

nquest or hotifhlio~ shall include informati= sufficient to demonstrate that the 

chrnge does not interfue with the owner or 

operator's previdus demonstrations of compliance with the requirements of 5116.711 

of this title. including the protection of public health and welfare. The appropriate 

Texas Natural Resource Conservation Commission Regional Office and any local air 

pollution program having jurisdiction shd 

be provided copies of all flexible permit 

alteration documents. 

(3) Flexible permit altuations 

shall not be subject to the requirements of 

Best Available Control Technology identified in 9116.711(3) of this title. 

(c) Qlanges not requiring an 

amendment or alteration. The following 

changes do not quire an amendment or 

alteration, o;cept that an amendment is required if the change will cause a change in 

the method of, control of emissions. the 

chartickt of the unissions. or will result in 

a significant increase in emissions: 

(I) a change in throughput; or 

(2) a change in feedstock 

(d) Standard exemption in lieu of 

permit amendment or alteration. 

(1) Notwithstanding substctions 

(a) or (b) of this section. no pemrit amendment or alteration is required if the changes 

to the permitted facility qualify for an exunplion under Subchapbz C of this chapter 

(regarding Pumit Exemptions) unless prohibited by pennit provision as provided in 

$116.715 of this title (dating t~ Gwwal 

and Special Conditions). AU such exempted 

changes to a permitted facility shall be incorporated into that facility's permit at such 

time as the permit is amended or renewed. 

(2) Emision incrases authorized by standard exemption at an. existing 

facility covered by a flexible pennit shall 

not caust an cxuedance of the unissions 

cap or individual cmission Limitation. 

$116.722. Distance Limitations. No fhible permit may be issued unless the distance 

and location restrictions found in 9116.117 

of this title (relating to Distance Lknitations) are met. 

$116.730. Compliance History. As part of 

a flexible pennit review. or the review of an 

amendment of a flexible pumit, or renewal 

of a. existing flexible permit, the provisions 

found in the undesgnated head regarding 

Compliance History in Subchaptu B of this 

chapter shall be applicable to the facility. 

group of facilitits. or acixunt being permitted, amended. or mewed 

$116.740. Public Notice and Comment. Any person who applies for a flexible permit or an amendment to a flexible 

permit shall comply with the provisions in 

the undesignated head regarding Public Notification and Comment Procedures in 

Subchapter B of this chapter. 

$116.750. Flexible Permit Fee. 

(a) Fees required. Any person who 

applies for a flexible pennit or for an 

amendment to an existing fludble panit 

shall remit, at the tjme of application for 

such permit. a fee as set forth in subsection 

(b) of this section. Fees will not be charged 

for flexible permit alterations. changes of 

ownership, or changes of lodon of pumitttd facilities. 

(b) Fee amounts. The fee to be remitted with a flexible pumit application 

shall be based on the total mual allowable 

emissions from the permitted fdty, group 

of facilities, or account for which the fl#- 

ble plrmit is being sought The fee shall be 

$2!i per ton with the rninknum fee being 

$450 and the maximum fee $75.000. For 

flexible permit amendments. the fee shall be 

calculated based on $25 pet ton for the 

incremental emission imcasc with the 

maximum fee being $75.000. 

(c) Payment of fees. All pennit 

fees for a flexible pennit shall be remitied 

in the form of a check or money order made 

payable to the Texas Natrual Resource Conservation Commission (TNRCC) and delivered with the application for flexible permit 

or fhible pennit amendment to the 

TNRCC Office of Air Quality New Source 

Review Program. Required fees must be 

received before the agency will begin examination of the application 

(d) Return of fees. Fees must be 

paid at the time an application for a flexible 

pennit or flexible permit amendment is sub 

mit&ed. If the applicant withdraws the application prior to issuance of the flexible 

permit or fludble permit amendment. onehalf of the fcc will be refunded. urcept that 

the entire fee will be refunded for any such 

application for which a standard exemption 

is allowed. No fces will bt refunded after a 

deficient application has been voided denied, or after a flexible pennit or flexible 

pumit amendment has been issued by the 

agency. 

$116.760. Flexible Permit Renewal. Fludble permits will be renewed in ~tcordanct 

with Subchapbz D of this chapter (rclahag 

to Pumit Reaewals). 

This agency hereby cerliW that the pUpOd 

has been rev-wed by legal cwnsel and 

found to be within the agency's ardbily to 

adopt. 

Issued in AWin, Texas. on September 13. 

1994. 

Eatliest we date of adoption: Odok 

21. 1994 

. . PROPOSED RULES September 20, 1994 19 TexReg 7339 

---, .- -- ............'.................. ' ... . ... --..-.:::: 7.. :........... .:., ......................... ... .... . ..... .... ....... ,.?,; ;., .-.7-7.7 ........ :, ............ : .;. - .. : ......................... ... ... . .: . . ..... ' . :., .......:................. ... ...... . .:. .. .... ... :.., . . 
John Hall, Chairman 

Pam Reed, Commissioner 

Peggy Gamer, Commissioner 

Anthony Grigsby. Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Term by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

ON PROPOSED REVISIONS TO CHAPTER 116 AND THE 

STATE IMPLEMENTATION PLAN 

Notice is hereby given that pursuant to the requirements of the 

Texas Health and Safety Code Annotated, 5382.017 (Vernon's 1992); 

Texas Government Code Annotated, Subchapter B, Chapter 2001 

(Vernon's 1993); and 40 Code of Federal Regulations (CFR) 551.102 

of the United States Environmental Protection Agency (EPA) regulations concerning State Implementation Plans (SIP), the Texas 

Natural Resource Conservation Commission (TNRCC or Commission) 

will conduct a public hearing to receive testimony concerning 

revisions to Chapter 116 and the SIP. 

The TNRCC proposes' a new Subchapter GI concerning Flexible Permits. The proposed subchapter will create a new type of permit 

called flexible permits. A flexible permit will function as an 

optional alternative to the current preconstruction permit that 

exchanges operational flexibility for emission reductions with 

the final goal being a well-controlled facility. A flexible 

permit will replace any existing preconstruction permit that 

covers any facility included in the flexible permit. A facility 

owner or operator may obtain a flexible permit which will allow 

physical and operational changes (within specified limits.) as an 

alternative to obtaining a new source review permit or in lieu of 

amending an existing permit. A person may obtain a flexible 

permit for a facility, group of facilities, or entire account and 

an emissions cap will be established for the facilities included 

within the flexible permit. 

A public hearing on the proposal will be held October 3, 1994 at 

10:OO a.m. in Room 201s of TNRCC Building E, located at 12118 

North IH-35, Park 35 Technology Center, Austin. The hearing is 

structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when 

called upon in order of registration. Open discussion within the 

audience will not occur during the hearing; however, a TNRCC 

P.O. Box 13087 Austin, Texas 78711-3087 512/239-1000 

prinld on rrcydd papr using soybaxd ink 
PAGE TWO 

staff member will be available to discuss the proposal 30 minutes 

prior to the hearing and will answer questions before and after 

the hearing. 

Written comments not presented at the hearing may be submitted to 

the TNRCC central office in Austin through October 21, 1994. 

Material received by the TNRCC Regulation Development Section by 

4:00 p.m. on October 21, 1994 will be considered by the Commission prior to any final action on the proposal. Copies of the 

revision are available at the central office of the TNRCC located 

at 12118 North 1-35, Park 35 Technology Center, Building E, 

Austin, and at all TNRCC regional offices. Please mail written 

comments to the Regulation Development Section, Air Quality Planning, P.O. Box 13087, Austin, Texas 78711-3087. For further 

information, contact Gary McArthur at (512) 239-1917. 

Persons with disabilities who have special communication or other , 

accommodation needs who are planning to attend the hearing should 

contact the agency at (512) 239-1459. Requests should be made as 

far in advance as possible. 

Issued in Austin, Texas, on September 13, 1994. 

~irector, Legal Services 

Texas Natural Resource 

Conservation Commission 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 1 of 38 

The Texas Natural Resource Conservation Commission (TNRCC) 

proposes new S116.13, an amendment to S116.110, and new 

116.740, 116.750, and 116.760. Many of the proposed sections 

will comprise a new Subchapter GI concerning Flexible Permits, as 

part of Chapter 116, concerning Control of Air Pollution By 

Permits for New Construction or Modification. New S116.13 is 

proposed to define terms related to flexible permits and S116.110 

is amended to include reference to flexible permits. 

The proposed new Subchapter G has been developed in response to 

direction from the Commission at the January 21, 1994 policy 

agenda meeting. This proposal was developed after considering 

the positional papers presented by industry, environmental 

groups, and local programs under the supervision of Task Force 

21. The proposed subchapter will create a new type of permit 

called a flexible permit. The flexible permit will function as 

an optional alternative to the preconstruction permits that are 

now authorized in Subchapter B, concerning New Source Review 

Permits. The flexible permit is designed to exchange flexibility 

for emission reductions with the final goal being a 

well-controlled facility. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 2 of 38 

Only one flexible permit may be issued for a particular plant 

site or active account. However, multiple emission caps, 

multiple individual emission limits, or any combination thereof 

may be included'in a flexible permit. The applicant for a 

flexible permit may combine existing permitted facilities, 

grandfathered facilities, and new facilities into the flexible 

permit. The flexible permit will then become the controlling 

authorization for all facilities included in the permit, 

replacing any existing permits that may have been applicable to 

all or part of these facilities. 

New S116.710, concerning Applicability contains the general terms 

or conditions under which a flexible permit can be obtained. New 

§116.711, concerning Flexible Permit Application lists the 

criteria for obtaining a flexible permit and the required 

contents of a flexible permit application. New 8116.714, 

concerning Application Review Schedule references the existing 

permit review schedule used in new source review permits as being 

applicable to flexible permits. New 8116.715, concerning General 

and Special Conditions lists conditions of general applicability 

for all flexible permits. New 8116.716, concerning Emission Caps 

and Individual Emission Limitations specifies how emission caps 

and individual emission limitations are determined and how 
Texas Natural Resource 

Conservation Commission 

control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 3 of '38 

emission caps are readjusted. New S116.717, concerning 

Implementation Schedule for Additional Controls requires a 

flexible permit to specify an implementation schedule whenever 

additional controls are required to meet an emission cap. New 

S116.718, concerning Significant Emission Increase defines 

"significant emissions increasew in terms of the emission cap or 

individual emission limitation. New S116.720, concerning 

Limitation on Physical and Operational Changes precludes 

increases in actual emissions at facilities not covered by the 

flexible permit unless those facilities are authorized pursuant 

to S116.110. New S116.721, concerning Amendments and Alterations 

defines the types of changes to a facility that require a permit 

amendment or alteration and when written notification of physical 

or operational changes at a facility covered by a flexible permit 

is required. New S116.722, concerning Distance Limitations, 

S116.730, concerning Compliance History, and S116.740, concerning 

Public Notice and Comment state that the existing requirements 

for these topics in Subchapter B also apply to flexible permits. 

New S116.750,. concerning Flexible Permit Fees sets fees for a 

flexible permit. New S116.760, concerning Flexible Permit 

Renewal states that the existing requirements for this topic in 

Subchapter B also apply to flexible permits. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 4 of 38 

Flexibility will be provided for physical and operational changes 

at facilities included in the flexible permit as long as the 

emission cap(s) or individual emission limitations are not exceeded. As Chapter 116 is currently written, physical or operational changes cannot be made to existing facilities without 

prior authorization. 

The flexible permitting process will eliminate the current 

practice of having to submit an amendment application each time 

an operational or physical change is made at the facility. The 

environmental benefits of this optional program include the 

permitting of grandfathered units, substantial emission reductions from the installation of controls, and an overall evaluation of emission impacts. 

The proposed Subchapter G will allow only one flexible permit per 

account. The permit will establish an emission cap, multiple 

emission caps, or individual emission limitations, as specified 

by the applicant, to cover all sources included in the flexible 

permit. Short term emission cap(s) or individual emission limitations will be based upon an estimation of worst case normal 

emissions. Upset and maintenance related emissions will be 

excluded in the calculation of the emission cap(s) or individual 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 5 of 38 

emission limitation. The emission cap(s) or individual emission 

limitation may include an insignificant emission factor to allow 

for flexibility. 

Emission limits will be established on a pollutant-by-pollutant 

basis. The applicant may specify which pollutants are to be 

included in the emission cap(s), however, the flexible permit 

must contain an emission cap or individual emission limitation 

for each pollutant. Individual emission limitations may be 

included in the permit even though an emission cap may exist for 

that pollutant. Operational and physical changes, other than 

construction of new facilities (including replacement facilities), may be made under the authority of the flexible permit if 

the changes will result in an insignificant increase in actual 

emissions. Operational and physical changes resulting in a 9 

significant increase will not be allowed under the authority of a 

flexible permit. A change in the nature of the emission, i-e., a 

new air contaminant not previously emitted from a particular unit 

or source, will not be allowed under the flexible permit without 

a permit amendment. 

Modeling issues for flexible permits will be covered by current 

TNRCC modeling guidelines. The extent of modeling required for 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 6 of 38 

flexible permits will be determined by a review of past modeling, 

any appropriate ambient monitoring, compliance history, and 

emission reductions due to the implementation of controls. Reductions in emissions will be a key factor in deciding the extent 

of any modeling required. 

The permittee must measure the emissions by means such as continuous emission monitors, initial compliance testing with ongoing compliance determined through engineering calculations 

based on measured process variables, parametric or predictive 

modeling techniques, or other appropriate techniques. Appropriate records as defined by permit conditions will be maintained 

to demonstrate compliance with emission cap(s) and individual 

emission limitations. 

In most cases, existing facilities which have been permitted 

within the last five years will be considered to have Best 

Available Control Technology (BACT) for the purposes of these 

rules. However, facilities which have been permitted within the 

last five years are not excluded from a current BACT and impacts 

review. The renewal period for a flexible permit will be 10 

years to allow for evaluation of control technology and emission 

limits. However, the staff may shorten the renewal period for 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 7 of 38 

cause. Existing public notification requirements for preconstruction permits will be made applicable to flexible permits. 

In accordance with guidance received from the Commission at the 

June 29, 1994 agenda meeting, any rule adopted as a result of 

this proposal will be reevaluated by the staff within one year of 

the date of approval. 

The TNRCC staff requests comments on the following specific 

issues: staff proposes in §116.716(c) to allow temporary shutdowns for up to 12 months without reducing the emission cap. We 

request comments on whether this is an appropriate amount of time 

to be considered a temporary shutdown; staff requests comments on 

resetting the emission cap to more closely reflect the actual 

emissions over the life of the flexible permit at time of renewal; staff requests comments on requiring readjustment of the 

emissions cap and/or individual emission limitation as a result 

of emission reduction activities required by rules pursuant the 

Federal Clean Air Act; staff requests comments on whether emission reductions resulting from the installation of controls 

should be allowed to be banked for purposes of use as offsets in 

nonattainment areas. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 8 of 38 

Stephen Minick, Budget and Planning Division, has determined that 

for each year of the first five-year period the proposed sections 

are in effect there will be some cost to state and local governments. The costs would be staffing to review the flexible permit 

applications. Since the flexible permit is optional, the number 

of flexible permit applications may be offset by a reduction in 

applications for conventional new source permits. Therefore, it 

is impossible to estimate the actual fiscal impact. Permit staff 

resources may be merely transferred from conventional permit 

review to flexible permit review. 

Mr. Minick also has determined that for each year of the first 

five years the proposed sections are in effect the public benefit 

anticipated as a result of implementing the sections will be a 

reduction in emissions of all categories of pollutants and a 

reduction in the cost of doing business in the State of Texas. 

The fiscal implications for facilities and small businesses 

affected by the rule are also indeterminate. Since the flexible 

permit program is optional, the fees are only required if an 

applicant chooses the flexible permit option. These fees are 

likely to be largely offset by a reduction in preconstruction 

permit applications under Subchapter B. There is no anticipated 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 9 of 38 

economic cost to persons who are required to comply with the 

sections proposed. 

A public hearing on this proposal will be held on October 3, 

1994, at 10:OO a.m. in the Auditorium (Room 201S), Building E, of 

the TNRCC Central Office located at 12118 North 1-35, Austin, 

Texas 78753. Public comments, both oral and written, on the 

proposed changes are invited at the hearing. Individuals may 

present oral statements when called upon in order of registration. Open discussion within the audience will not occur during 

the hearing; however, a TNRCC staff member will be available to 

discuss the proposal 30 minutes prior to the hearing and will 

answer questions before and after the hearing. 

Written comments not presented at the hearing must be submitted 

to the TNRCC, Office of Air Quality, Regulation Development 

Section, P.O. Box 13087, Austin, Texas, 78711-3087, no later than 

October 21, 1994. Material received by 4:00 p.m. on that date 

will be considered by the Commission prior to any final action on 

the proposed regulation. Copies of the proposed regulations are 

available at the Regulation Development Section of the TNRCC Air 

Quality Planning Division located at 12118 North IH-35, Park 35 

Technology Center, Building E, Austin, Texas 78753, and at all 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 10 of 38 

TNRCC Air Program regional offices. For further information, 

contact Gary McArthur at (512) 239-1917. 

Persons with disabilities who have special communication or other 

accommodation needs who are planning to attend the hearings 

should contact the agency at (512) 239-1459. Requests should be 

made as far in advance as possible. 

The new section is proposed under the Texas Health and Safety 

Code (Vernon 1992), the Texas Clean Air Act (TCAA), 3382.017, 

which provides the TNRCC with the authority to adopt rules 

consistent with the policy and purposes of the TCAA. 

The proposed new section affects the Health and Safety Code, 

5382.017. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 11 of 38 

SUBCHAPTER A : DEFINITIONS 

5116.13. Flexible Permit Definitions. 

Emissions cap - Emission limit for a specific air 

contaminant based on total emissions of that pollutant adjusted 

by an Insignificant Emissions Factor from all sources that are 

included in a flexible permit. 

Expected maximum capacity - The maximum capacity of a 

facility according to its physical and operational design and 

planned operation. 

Individual emission limitation - Emission limit for a 

specific air contaminant not covered by an emission cap for an 

individual facility adjusted by an Insignificant Emissions 

Factor. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 12 of 38 

The agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's authority to 

adopt. 

Issued in Austin, Texas, on September 13, 1994. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 13 of 38 

The amendment is proposed under the Texas Health and Safety Code 

(Vernon 1992) , the Texas Clean Air Act (TCAA) , 8382.017, which 

provides the TNRCC with the authority to adopt rules consistent 

with the policy and purposes of the TCAA. 

The proposed amendment affects the Health and Safety Code, 

8382.017. 

SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

PERMIT APPLICATION 

5116.110. Applicability. 

(a) Permit to construct. Any person who plans to construct 

any new facility or to engage in the modification of any existing 

facility which may emit air contaminants into the air of this 

state shall obtain a permit pursuant to 5116.111 of this title 

(relating to General Applications), satisfy the conditions for a 

standard permit pursuant to the requirements in Subchapter F of 

this chapter (relating to Standard Permits), satisfv the 

conditions for a flexible permit pursuant to the requirements in 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 14 of 38 

Subchapter G of this chapter (relatinq to Flexible Permits), or 

satisfy the conditions for exempt facilities pursuant to Subchapter C of this chapter (relating to Permit Exemptions) before 

any actual work is begun on the facility. Modifications to 

existing permitted facilities may be handled through the amendment of an existing permit or an existins flexible ~ermit. 

(b)-(e) (No change.) 

The agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's authority to 

adopt. 

'~ssued in Austin, Texas, on September 13, 1994. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 15 of 38 

The new sections are proposed under the Texas Health and Safety 

Code (Vernon 1992), the' Texas Clean Air Act (TCAA) , 5382.017, 

which provides the TNRCC with the authority to adopt rules 

consistent with the policy and purposes of the TCAA. 

The proposed new sections affect the Health and Safety Code, 

8382.017. 

SUBCHAPTER G : FLEXIBLE PERMITS 

PERMIT APPLICATION 

1116.710. Applicability. 

(a) Flexible permit. A person may obtain a flexible permit 

which allows for physical or operational changes as provided by 

this subchapter as an alternative to obtaining a new source 

review permit under 5116.110 of this title (relating to Applicability), or in lieu of amending an existing permit under S116.116 

of this title (relating to Amendments and Alterations). A person 

may obtain a flexible permit pursuant to 8116.711 of this title 

(relating to Flexible Permit Application) for a facility, group 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 16 of 38 

of facilities, or account before any actual work is begun, 

provided however: 

(1) only one flexible permit may be issued at an 

account site; 

(2) modifications to existing facilities covered by a 

flexible permit may be handled through the amendment of an existing flexible permit; and 

(3) permitting of a new facility may be handled 

through the amendment of a flexible permit. 

(b) Operations certification. Any person who obtains a 

flexible permit under this subchapter shall comply with 

Sll6.110 (b) of this title. 

(c) Change in ownership. The new owner of a facility, 

group of facilities, or account shall comply with §116.110(c) of 

this title, provided however, that all facilities covered by a 

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 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 17 of 38 

permit by the Texas Natural Resource conservation Commission 

(TNRCC). After the sale 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 flexible permit and all rules and 

regulations of the TNRCC. 

* 

(d) Submittal under seal of registered professional engineer. All applications for a flexible permit or flexible permit 

amendment shall comply with §116.llO(d) of this title. 

(e) ~esponsibility for 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 for the owner is responsible for complying with 

this section, except as provided by subsection (c) of this 

section. 

I 

5116.711. Flexible Permit Application. Any application for a new 

flexible permit or flexible permit amendment must include a 

completed Form PI-1 General Application. The Form PI-1 must be 

signed by an authorized representative of the applicant. The 
 ex as Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 18 of 38 

Form PI-1 specifies additional support information which must be 

provided before the application is deemed complete. In order to 

be granted a flexible permit or flexible permit amendment, the 

owner or operator of the proposed facility shall submit 

information to the Texas Natural Resource Conservation Commission 

(TNRCC) which demonstrates that all of the following are met. 

(1) Protection of public health and welfare. The 

emissions from the proposed facility, group of facilities, or 

account as determined pursuant to 5116.716 of this title 

(relating to Emission Caps and Individual Emission Limitations), 

will comply with all rules and regulations of the TNRCC and with 

the intent of the Texas Clean Air Act (TCAA), including protection of the health and physical property of the people. In considering the issuance of a flexible permit for construction or 

modification of any faci.lity, group of facilities, or account-. 

within 3,000 feet or less of an elementary, junior high/middle, 

or senior high school, the TNRCC shall consider any possible 

adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility, group of facilities, or 

account may have on the individuals attending these school 

facilities. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 19 of 38 

(2) Measurement of emissions. The proposed 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 TNRCC tt~ompliance 

Sampling Manual. It 

(3) Best Available Control Technology (BACT) . The 

facility, group of facilities, or account will utilize BACT, with 

consideration given to the technical practicability and economic 

reasonableness of reducing or eliminating the emissions from the 

facility on a facility, group of facilities, or account basis. 

Control technology beyond BACT 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. For new facilities, the use of BACT shall be 

demonstrated for the individual facility. 

(4) Federal 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 
Texas Natural Resource 

conservation Commission 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

Page 20 of 38 

requirements of any applicable NSPS as listed under Title 40 CFR 

Part 60, promulgated by the United States Environmental 

Protection Agency (EPA) pursuant to authority granted under the 

Federal Clean Air Act (FCAA), S111, as amended. 

(5) National Emission Standards for Hazardous Air 

Pollutants (NESHAPS) and Maximum Achievable Control Technology 

(MACT). The emissions from each facility as defined in 40 CFR 

Part 61 will meet at least the requirements of any applicable 

NESHAPS, as listed under 40 CFR Part 61, or any MACT standard, 

promulgated by EPA pursuant to authority granted under the FCAA, 

S112, as amended. 

(6) Performance demonstration. The proposed facility, 

group of facilities, or account will achieve the performance 

specified in the flexible permit application. The applicant may 

be required to submit additional engineering data after a 

flexible permit has been issued in order to demonstrate further 

that the proposed facility, group of facilities, or account will 

achieve the performance specified in the flexible permit. In 

addition, initial compliance testing with ongoing compliance 

determined through engineering calculations based on measured 
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For New Construction of Modification 

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process variables, parametric or predictive monitoring, stack 

monitoring, or stack testing may be required. 

(7) Nonattainment review. If the proposed facility, 

group of facilities, or account is located in a nonattainment 

area, each facility shall comply with all applicable requirements 

under the undesignated head concerning nonattainment review in 

Subchapter B of this chapter. 

(8) Prevention of Significant Deterioration (PSD) 

review. If the proposed facility, group of facilities, or 

account is located in an attainment area, each facility shall 

comply with all applicable requirements under the undesignated 

head concerning PSD in Subchapter B of this chapter. 

(9) Air dispersion modeling or ambient monitoring. 

Computerized air dispersion modeling and/or ambient monitoring 

may be required by the TNRCC Permits Program to determine the air 

quality impacts from the facility, group of facilities, or 

account. 

(10) Application content. In addition to any other 

requirements of this chapter, the applicant shall: 
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(A) identify each air contaminant for which an 

emission cap is desired; 

(B) identify each facility to be included in the 

flexible permit; 

(C) identify each source of emissions to be 

included in the flexible permit and for each source of emissions 

identify the Emission Point Number (EPN) and the air contaminants 

emitted; 

(Dl for each emission cap, identify all 

associated EPNs and provide emission rate calculations based on 

the expected maximum capacity and the proposed control 

technology; 

(El for each individual emission limitation, 

identify the EPN and provide emission rate calculations based on 

the expected maximum capacity and the proposed control 

technology. 

(11) Proposed control technology and compliance 

demonstration. The applicant shall specify the control tech- 
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For New Construction of Modification 

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nology proposed for each unit to meet the emission cap and 

demonstrate compliance with all emission caps at potential 

maximum production capacity. 

S116.714. Application Review Schedule. The flexible permit application will be reviewed by the Texas Natural Resource 

Conservation Commission in accordance with S116.114 of this title 

(relating to Application Review Schedule). 

S116.715. General and Special Conditions. 

(a) Flexible permits may contain general and special 

conditions. The holders of 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 under the undesignated 

headings of Subchapter B of this chapter relating to Nonattainment Review or Prevention of Significant Deterioration Review, 

the permit may include a special condition which requires the 
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permittee to obtain written approval from the Executive Director 

before constructing a facility under a standard exemption or 

standard permit. 

(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 

flexible permit ; 

(c) The following general conditions shall be applicable to 

every flexible permit. 

(1) Voiding of permit. A flexible permit or flexible 

permit amendment under this subchapter is automatically void if 

the holder fails to complete construction as specified in the 

flexible permit. Upon request, the Executive Director may grant 

a one time 12-month extension of the date to complete 

construction. This section does not apply to physical or 

operational changes allowed without an amendment under S116.721. 

of this title (relating to Amendments and Alterations). 

(2) Construction progress. The start of construction, 

construction interruptions exceeding 45 days, and completion of 
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For New Construction of Modification 

Chapter 116 

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construction shall be reported to the appropriate regional office 

of the Texas Natural Resource Conservation Commission (TNRCC) not 

later than 15 working days after occurrence of the event. 

(3) Start-up notification. The appropriate Air 

Program Regional Office of the TNRCC and any local program having 

jurisdiction shall be notified prior to the commencement of 

operations of the facilities authorized by the permit in such a 

manner that a representative of the TNRCC may be present. Phased 

construction, which may involve a series of facilities commencing 

operations at different times, shall provide separate notification for the commencement of operations for each facility. 

(4) Sampling requirements. If sampling of stacks or 

process vents is required, the flexible permit holder shall 

contact the Source and Mobile Monitoring Section of the TNRCC 

Office of Air Quality 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 Air Program Regional Office of the TNRCC. The 

flexible permit holder is also responsible for providing sampling 

facilities and conducting the sampling operations or contracting 

with an independent sampling consultant. 
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(5) Equivalency of methods. It shall be the responsibility of the 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 

flexible permit. Alternative methods shall be applied for in 

writing and must bereviewed and approved by the Executive 

Director prior to their. use in fulfilling any requirements of the 

permit. 

(6) Recordkeeping. A copy of the f lkxible permit 

along with information and data sufficient to demonstrate 

continuous compliance with the emission caps and individual 

emission limitations contained' in the flexible permit shall be 

maintained in a file at the plant site and made available at the 

request of personnel from the TNRCC 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 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 
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requirements may be specified in special conditions attached to 

the flexible permit. Information in the file shall be retained 

for at least two yezrs following the date that the information or 

data is obtained. 

(7) Maximum allowable emission rates. A flexible 

permit covers only those sources of emissions and those air 

contaminants listed in the table entitled "Emission Sources - 

Emissions Caps and Individual Emission Limitationsv attached to 

the flexible permit. Flexible permitted sources are limited to 

the emission limits and other conditions specified in the table 

attached to the flexible permit. 

(8) Emission cap readjustment. If a schedule to 

install additional controls is included in the flexible permit 

and a facility subject to such a schedule is taken out of service, the emission cap contained in the 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. 
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(9) Maintenance of emission control. The facilities 

covered by the 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 upsets and maintenance 

shall be made in accordance with S101.6 and S101.7 of'this title 

(relating to Notification Requirements for Major Upset and 

Notification Requirements for Maintenance). 

(10) Compliance with rules. Acceptance of a flexible 

permit by a permit applicant constitutes an acknowledgement and 

agreement that the holder will comply with all Rules, Regulations, and Orders of the Commission issued in conformity with 

the Texas Clean Air Act and the conditions precedent to the 

granting of the permit. If more than one state or federal rule 

or regulation or 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 flexible permit. 
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(dl There may be additional special conditions attached to a flexible permit upon issuance or amendment of the 

permit. Such conditions in a flexible permit may be more 

restrictive than the requirements of Title 30 of the Texas 

Administrative Code. 

8116.716. 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 current Best Available Control Technology 

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 flexible permit. In addition, an individual 

emission limitation may be established for a pollutant covered by 
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For New Construction of Modification 

Chapter 116 

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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 flexible permit, an emission cap shall be adjusted by modifying the emissions cap accordingly. 

(d) Insignificant emission factor. The emission caps and 

individual emissions limitation calculated pursuant to this 

section may include an Insignificant Emissions Factor which does 

not exceed 9.0% of the total emission cap or individual emission 

limitation. 

5116.717. Implementation Schedule for Additional Controls. If a 

facility requires the installation of additional controls to meet 

an emission cap for a pollutant, the flexible permit shall 

specify an implementation schedule for such additional controls. 
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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. 

8116.718, Significant Emission Increase. An increase in 

emissions from operational or physical changes at an existing 

facility covered by a flexible permit is insignificant, for the 

purposes of state new source review under this subchapter, if the 

increase does not exceed either the emission cap or individual 

emission limitation. 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. 

8116,720. Limitation on Physical and Operational Changes. 

Neither operational nor physical changes authorized under this 

subchapter may result in an increase in actual emissions at 

facilities not covered by the flexible permit unless those 

affected facilities are authorized pursuant to S116.110 of this 

title (relating to Applicability). 
Texas Natural Resource 

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5116.721. Amendments and Alterations. 

(a) Flexible permit amendments. All representations with 

regard to construction plans and operation procedures in an 

application for a flexible permit, as well as any general and 

special provisions attached become conditions upon which the 

subsequent flexible permit is issued. It shall be unlawful for 

any person to vary from such representation or flexible permit 

provision if the change will cause a change in the method of 

control of emissions, the character of the emissions, or will 

result in a significant increase in emissions, unless application 

is made to the Executive Director to amend the flexible permit in 

that regard and such amendment is approved by the Executive 

Director or Commission. Applications to amend a flexible permit 

shall be submitted with a completed Form PI-1 and are subject to 

the requirements of S116.711 of this title (relating to Flegible 

Permit Application) . 

(b) Flexible permit alterations. 

(1) A flexible permit alteration is for any variation 

from a representation in a flexible permit application or a 
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For New Construction of Modification 

Chapter 116 

general or special provision of a flexible 

Page 33 of 38 

permit that does not 

require a'flexible permit amendment. 

(2) All flexible permit alterations which may involve 

a change in a general or special condition contained in the 

flexible permit, or affect control equipment performance must 

receive prior approval by the Executive Director. The Executive 

Director shall be notified in writing of all other flexible 

permit alterations within 10 days of implementing the change, 

unless the permit provides for a different method of notification. Any flexible permit alteration request or notification 

shall include information sufficient to demonstrate that the 

change does not interfere with the owner or operator's previous 

demonstrations of 

compliance with the requirements of 8116.711 of this title, including the protection of public health and welfare. The appropriate Texas Natural Resource conservation Commission Regional 

Office and any local air pollution program having jurisdiction 

shall be provided copies of all flexible permit alteration 

documents. 
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For New Construction of Modification 

Chapter 116 

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(3) ~lexible permit alterations shall not be subject 

to the requirements of Best Available Control Technology 

identified in §116.711(3) of this title. 

(c) Changes not requiring an amendment or alteration. The 

following changes do not require an amendment or alteration, 

except that an amendment is required if the change will cause a 

change in the method of control of emissions, the character of 

the emissions, or will result in a significant increase in 

emissions: 

(1) a change in throughput; or 

(2) a change in feedstock. 

(d) Standard exemption in lieu of permit amendment or 

alteration. 

(1) Notwithstanding subsections (a) or (b) of this 

section, no permit amendment or alteration is required if the 

changes to the permitted facility qualify for an exemption under 

Subchapter C of this chapter (regarding Permit Exemptions) unless 

prohibited by permit provision as provided in 8116.715 of this 
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For New Construction of Modification 

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title (relating to General and Special Conditions). All such 

exempted changes to a permitted facility shall be incorporated 

into that facility's permit at such time as the permit is amended 

or renewed. 

(2) Emission increases authorized by standard 

exemption at an existing facility covered by a flexible permit 

shall not cause an exceedance of the emissions cap or individual 

emission limitation. 

8116.722. Distance Limitations. No flexible permit may be 

issued unless the distance and location restrictions found in 

S116.117 of this title (relating.to Distance Limitations) are 

met. 

8116.730. Compliance History. As part of a flexible permit 

review, or the review of an amendment of a flexible permit, or 

renewal of an existing flexible permit, the provisions found in 

the undesignated head regarding Compliance History in Subchapter 

B of this-chapter shall be applicable to the facility, group of 

facilities, or account being permitted, amended, or renewed. 
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8116.740. Public Notice and Comment. Any person who applies for 

a flexible permit or an amendment to a flexible permit shall 

comply with the provisions in the undesignated head regarding 

Public Notification and Comment Procedures in Subchapter B of 

this chapter. 

8116.750. Flexible Permit Fee. 

(a) Fees required. Any person who applies for a flexible 

permit or for an amendment to an existing flexible permit shall 

remit, at the time of application for such permit, a fee as set 

forth in subsection (b) of this section. Fees will not be 

charged for flexible permit alterations, changes of ownership, 

or changes of location of permitted facilities. 

- - 

(b) Fee amounts. The fee to be remitted with a flexible 

permit application shall be based on the total annual allowable 

emissions from the permitted facility, group of facilities, or 

account for which the flexible permit is being sought. The fee 

shall be $25 per ton with the minimum fee being $450 and the 

maximum fee $75,000. For flexible permit amendments, the fee 
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For New Construction of ModXication 

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shall be calculated based on $25 per ton for the incremental 

emission increase with the maximum fee being $75,000. 

(c) Payment of fees. All permit fees for a flexible 

permit shall be remitted in the form of a check or money order 

made payable to the Texas Natural Resource Conservation 

Commission (TNRCC) and delivered with the application for 

flexible permit or flexible permit amendment to the TNRCC Office 

of Air Quality New Source Review Program. Required fees must be 

received before the agency will begin examination of the application. 

(d) Return of fees. Fees must be paid at the time an 

application for a flexible permit or flexible permit amendment is 

submitted. If the applicant withdraws the application prior to 

issuance of the flexible permit or flexible permit amendment, 

one-half of the fee will be refunded, except that the entire fee 

will be refunded for any such application for which a standard 

exemption is allowed. No fees will be refunded after a deficient 

application has been voided, denied, or after a flexible permit 

or flexible permit amendment has been issued by the agency. 
Texas Natural Resource 

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Page 38 of 38 

Control of Air Pollution By Permits 

For New Construction of Modification 

Chapter 116 

P116.760. Flexible Permit Renewal. Flexible permits will be 

renewed in accordance with Subchapter D of this chapter (relating 

to Permit Renewals) . 

The agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's authority to 

adopt. 

Issued in Austin, Texas, on September 13, 1994. 
WRITTEN AND 

ORAL TESTIMONY
INDEX OF WRITTEN TESTIMONY 

Reference Number 

W-1 

W-2 

Submitted Bv 

Susan Moore, Amoco Production Company 

Mary E. Kelly, Texas Center for Policy 

Studies 

Dael Baughman, Eastman Chemical Company 

Thomas H. Diggs, U.S. Environmental 

Protection Agency, Region 6 

G. Michael White, Exxon Company, U.S.A. 

Brandt Mannchen, Galveston-Houston 

Association for Smog Prevention 

B.C. Carmine, Houston Lighting & Power 

Rob Looney, Texas Mid-Continent Oil & Gas 

Association 

Thurman Nance, Phillips 66 Company, 

Borger Strategic Business Unit 

Dan F. Hunter, Phillips 66 Company, 

Sweeny Refinery & Petrochemical Company 

Neil J. Carman, Sierra Club, Austin 

George Smith, Sierra Club, Houston 

Maureen A. Healey, The Society of the 

Plastics Industry, Inc. 
OCT 26 ' 34 63: Z*!q RX EHS (PTGS), HOL) 

Amoco Production Company 

October 21, 1994 

hfi. Jeff Saitas 

Director, New Source Review Progrm 

Texas Natural Resource Consw&on Commission 

PO Box 13087 

Austin, Texas 7871 1-3 087 

FAX 512 239 1300 

Dear Mi. Saitas: 

Arnoco's Texas Operating Facilities appreciate the opportunity to comment on the 

proposed amendments to Regulation VI, Subcbapter G "Flexible Permit Program". 

, Amoco co-cbaired the Task Force 21 Air Issues Subgroup that addressed this issue; we 

appreciate that opportunity, as well, and we fully asupport the comments submitted by the 

regulated community members of that urarkgroup. 

While we have some concerns with the program, overall we cornmend the ThXCC for its 

efforts to develop a program that will provide operators more flexibility. 

Again we fhlly support the comments submitted by the regulated community members of 

the Task Force 21 Air Issues workgroup. Those comments will not be repeated here. 

However, we wish to highlight some concems of particular interest to Amoco. 

1. Amoco believes that it is essential for the flexibIe pernit to dlow emission limits 

established on a pouutant-by-pollutant basis. It may not be economic@ fkasible 

to modify for all pollutants. Facility o-ners and operators will be less likely to 

make reductions under this volu!~tary program if it is an "all or nothing" type 

approach. 

2. The ability to use standard exemptions even if those exemptions result in an increase in 

the emission cap should be allowed in the flexible permit. While we understand the 

concerns of the TNRCC staff, we do not believe that the flexibility afforded by 

stmdard exemptions should be removed because of the flexibility provided in the 

flexible permit. Amoco suggests that the TNRCC allow the use of standard 

exemptions as recommended and reevaluate this if necessary during the 1 year 

review. 
3. If only one flexible permit is allowed, it should be rnade clear that reopenings of the 

fl~ble pennit for additions or modifications only require review of affecfed 

facilities. 

I appreciate the opportunity to work with you and your staff on this innovative 

rulemaking. Please call me at (7 13) 366-501 8 for any questions. 

Sincerely, 

Susan Moore 
KT 20 ' 94 84: 35PM 'AX EHS ( PT8S 1, HOLI 

Mr. J& Saitas 

Director, New Source Rwiw Program 

Texas Natmal Resource Comation Cbmuhion 

PO Bax 13087 

Au&I, Tm 7871 1-3087 

FAX 512 239 1300 

Dear Mr. Shs: 

Attached are cwnmml~ an the props4 Subchapter G. Flexible Pcrxaits submated on bchmlfaf the 

replated community representatives of& Task Force 21 Air Issues Wakgfoup. 

Portions of the TNRCC'e p@ rule have bca reprhdcd on the following plrges which mntain our 

canmenu. Reconuncnded dclctiom sro indicated by a strike. Ibci~rmncn8ed additibnsl laqpp is 

indicated in bold. Gad commurts are in italics. 

I appreciate the oppormnity to work with you and ywr s&Son tbis inaWatiw nrlemaking. Please call me 

d (713) 366-5018 for any questim. 

Susan Moore 
OCT 28 ' 94 04 : 3BPll RPC EHS (PT8S 1 r HOU 

&lee delete 

bold - add 

italics- commects on proposed rule 

Pespoase to TNRCC Reauest for Comments on Ternporarv shutdowns: 

. Temporary shutdowns up to 12 months should be allowed without reducing /readjusting 

the emission cap. 

Requirements to readjust tin emission cap based on temporary shutdowns less than 12 

months would be unduly burdensome for both the permittee and TNRCC, It is expected 

that many units might be included in an mission cap. Temporary shutdowns for repair 

and maintenance, for mple, may be staggered over a period of time. Therefore, it is 

reasonable to expect that one unit in the cap could shutdown, startup, and then another 

unit shutdown, and so fcrth. Therefore, the permittee would be forced to do frequent 

adjustments af the emission cap. A source would have to reduce its emission cap due to a 

temponry shutdown, and then a few months later the same scarce would have to readjust 

its cap when the temporary shutdown was completed and the unit was ready again for 

operation. Instead, we believe that twelve months is an appropriate cut-off to distinguish 

tempcraiy shutdowns from shutdowns that warrant a reduction in the emission cap. As 

such we support the TnTRCC proposal to allow temporary shutdowns of up to twelve 

months in length without reducing or readjusting the emissions cap. 

Resetting-at Renewal 

Resetting the emission cap at permit renewal is inconsistent ntth the gods of a flexible 

permit. There will be no flexibility to ma'ke operational or physical changes if a.facility is 

operating at its "allowable" emission rate on a routine besis. While the program can be 

expected to result in some increases in actial emissions; these increases will be within the 

overall constraint of the permitted allowable emissions. Furthermore, thest increases 

would occur only at facilities that are well-controlled and have acceptable impacts, 

In addition, the incrc~ses wouId be expected to occur under the current system but 

only after a review requiring considerable unnecessary company and agency 

resources. Therefore, if facilities were required to reset rheir emissions at renewal, the 

benefit of the flexible permit would end at renewal and the current practice of submitting 

an amendment application each time an operational or physical change is made would be 

perpetuated. 
Resetting the emissions cat, andfor individual emission limitation as a result of emission 

reduction activities reauired bv rules pursuant to the Federal Clean Air 

If a facility or source already meets or exceeds the limitation specified by rules pursuant to 

the Federal Clean Air Act, then no additional action should be required by the facility 

owner or operator . If, however, zdditional emission reduction activities are required to 

comply with such rules then, the facility owner or operator should submit a proposal to 

readjust the emission cap 60 days before the compliance date of the Federal rule to be 

effective on the compliance date of the Federal rule . 

Banking 

Reductions from existing ficilitjes should be available fbr banking or as "creditable" 

reductions. 

The purpose of this proposed rule is to dlow a "well-controlledn facility the flexibility to 

make some c.hanges in a streamlined fashion without requiring a permit or permit 

amendment. This purpose is not hindered by allowing a facility to use emission reductjori 

as offsets. Instead, the srbility to use these reductions as offsets encourages sorirces to 

make reductions. Additionally, since there is an offset ratio for non~ttainment a:eas 

greater than 1-to-1, the environment will benefit from enco~1ra5ing these offset 

transactions. For exanpie, the HoustodGelveston nonattainment area has a I .3-to-1 

offset ratio which means that for every ton of emission to be offset, the facility must use 

1.3 tons of emissions. Therefore, there is an environmental benefit of 0.3 tons of 

emissions for each ton ofthe new project to be offset. Additionally, erjssion redcction 

credits to be sold as offse.ts have a iirnited life ss do netting credits at cerkin faci!ities. 

Furthermore, these emission reduction credits expire when the reducti~ns become 

mandated by regulation. 

Also, the nonatrai~ment areas need a mechenism for generating orsets so that facilities 

can use these offsets to make any necessary changes, If the regulations prevent a flexible 

permit holder from generating offsets through emission reductions, sources will be 

discouraged fiom seeking a flexible permit. Additionally, these offsets will become more 

scarce causing a reduction in the number of envirormentally beneficial offset trades and 

drastically increasing the cost of new projects and changes in the nonattainment area. 1% 

believe rhat this scarcity of offsets could practically result in a ban on new projects in the 

HoustodGalveston region with the associated damage to the economy of this area. 

EstablishjneErnissiorr Limits: 

Any scenario for a "flexible permit" should provide incentives for innovation, reduce the 

cost of compliance, enhance environmental benefits, and increase flexibility. It should be a 

voluntary program which recognizes the costs associated with compliance. It should value 

emission reductions from permitted as well as grandfathered facilities. It should value 

emission reductions whether fiom an individual operating unit or source, group of 
KT ZB '94 BJ:3'3Pll QPC EHS (PTSSIrHOU 

sources, the entire plant, or any combination of permitted or grandfathered units or 

sources. It should allow for establishment of emission limits on a pollutant by pollutant 

basis or category of pollutants. 

These concepts provide a framework which outline some of the goals Eecessary for 

successfit implementation of this program. It is essenti~cl that these elements are clearly 

conveyed in the text of the proposal and in the preambIe. Many of our comments are 

directed to provide such clarification. 

Interaction of flexible permits with the Title V O~eratina Permits Program 

TNRCC and workgroup members have not discussed in detail the interaction of the 

flexible permit wjth other federal programs. 

However, in general, industry believes that an indiGdual source should not be dzfined as 

"major" simply because the cap is "major". 2'hePexibZepennit in md ofitselfshouM 

not trigger additionalfedera? reqztircmenrs which ~+fuuld nof orhenvise be imposed 

Specific Comments on TNRCC 's Pronosed Rules: Subchanter G: Flexible Permits 

Individual emission limitation- Elnission liinit for a specific air contarrjnani not covered by 

an emission c8p for an individual facility adjusted by an lnsignificrtnt Emissions Factor for 

the specific sir contaminants and facilities with provisions for future operational 

and physienl flexibiIity. For the specific air contaminant and facilities not desiring 

modification in the flexible permit, the individual emission limit for the specific air 

contaminant not covered by an emission cap is the permitted or grandfathered 

emission rate. 

The proposed rule is ~rnclenr in terms ofihe scope of BACT 31 ares where an applicant 

for ajlexible permit may be reqi~csting limitedflcxibili~ 6y having an entissian cup on 

one specr$c pol~?~tUn? but not an orher po!?utnnls. An example wuld be. ia petroleum 

refinery a?eriring to haveflexibility in the sulfur content offed stocks but operating in 

compliance with. existing NOx and VOC limits. The VOC and hrOx lintits sholrld rewait2 

as individual emision limits 6111 the 502 emissions colrld be specified i17 an emissions 

cap. 

As we have stated in the pat, fheilexible pennii should not force the creation ofplantwide caps or plant-wide pernritfing. I? shortld, however, ul!ou~f;?ciliry owners or 
KT 20 '94 04:39RI GFC EHS (PT8Sjp HOU 

operators the freedom to choose which poZZufants ?o include in an emissions cap andlor 

which pollzr lctnts to incl~ide as individ~ral emissia17 limits. 

We propose rhar 116.71 I(3) be clarified ro indicate that BACT would be utilized wirh 

respect ro the specific air ccnfnminnnfs andfacilities which wou?d be uflected by $he 

physical and operarional~xibility proposed by the applicant. This could be 

accomplished by inserting appropriate language 111 Rule 116.71 l(3) as follows: 

The facility, group of facilities, or account will utilize BACT, with consideration given to 

the technical practicability and economic reasonableness of reducing or eliminating the 

emissions from the f~ciijty on a facility, group of facilities, or account basis. For any 

new facilities associated with the flexible permit? BACT will be applied with respect 

to all air contaminants emitted by the facility. For existing facilities, BACT will be 

applied with respect to the specific air contaminants and facilities whose emissions 

would be affected by the flexibility to be granted by the pennit. Control technology 

beyond.. . . . . . 

Add a flew item under exisling items I and 5 ar fellows: 

Applicability of NSPS or hiSHhP standards and any other applicable rules and 

regulations of TNRCC shall be considered in establishing the emission cap or in 

setting special provisions of the flexible permit. For a flexible permit, a 

source/sources will bt considered in compliance with these standards if emissions 

from a11 sources covered by the flexible permit are below the emission cap and 

special provisions of the flexible permit are satisfied. 

771~ above hgiiage clo~?/ies that conP~ian& is bawd on ihe emission cop and not 

incfivitabal emission limits. Addi~icnal requircrna71s co~?cred by NSPS or h'ESHAP (such 

as the conaoI eflciency) should be covered in ~pscicl pros~isionr ofthe flexible pennii. 

INRCC should encourage EPA srpporr of this concept. 

(10) Application Content 

(E) for each individual emission limitation , identi6 the EPN and provide emission rate 

calculations based on the expected maximum capacity and ihe proposed control 

technology find for each air contaminant which is not modified as x result of the 

flexible permit and for which an emission cap is not desired, identify its individual 

emission limitation, its EPN, and provide emission rate calculations based on 

grandfathered or permitted limits and the existing control technology. 

l%is Ionguage clarifies that emission linlfis con be established on a pollutant-bypollutant basis; It is consislent wilh TA%CCS rtqffproposal to combine operaliorurl 

flexibiliv and the alternative pemlilring framework doted June 22, 1994 which reads as 

follows: "Eniission limits wo:rld be established on a polltrlmt-by-pollurar7t basis. The 

upplicazit could elect to esr'7hZish sozv-ce cap.rfor all pollzl !ants or any parrinrkar 

' polltr fan? inchided in the flexiblz permit. " 
KT 20 '01 04:3s'irm HPC EHS 1Plt;lb)~HWU 

Furthennore, language should be added to ir7dicafe that emission rate calczrlariom do 

not need to be provided during amerximent of a flexible permit for unaflecied sources. 

Xhis would be a drplicative effortfor lrhe cpplicairt. - 

116.71 5 General And Special Conditions 

(8) Emission cap readjustment. If a schedule to install additional controls is included in 

the flexible permit and a facility subject to such a schedule is taken out of senice, the 

emission cap contained in the flexible permit will be resdjusted All* 

. . 

as required in special 

provisions of the permit. &Jdw If a special provision does not specifies the method cf 

readjustrn~t ofthe emission cap, a permit alteration shail be obtained. 

75eficilily m??kr or operator and Tlt2CC sholrld review rhe provisions nece~sary to 

address shutdownsfor fucilrries that receisc a schedule to install controls. 

116.716 Emission Caps and Individual Emission Limitations 

(b) Tndividud emission limitations. An icdividuzl emission limitation will be established in 

the same permit for each pollutant not covered by an emission cap for facilities covered by :c' . .. .. -. , the flexible permit.* 

The intent of the Iclst senlence in is uilclgar, This could be inie?preted to disallow 

increases in emissions above acltrals aven qrhose increoses are within the emission cap 

or individrml emission limit allown h b. Rgclin, as ~tated in our general comments, rhis is 

inconsistent wizh the entire notion of aflexib[t?yernlit. Fwtherrnore, ?he issue of 

"emission levels appropricrte for the proposed controls" should not be a ccncern since 

facilities operating under an emisston cap will meet BACT and impacts requirements 

when the Jzxible permit is fssued. 

Hmewr, we would stip2ort a7 applicanl's desire to limit their expectzd rnaximltm 

capaci2)l y they desire to trse that capacir5, in calculntion of an individzral emission lirnii. 

If rhis is the intent, rhen iangi~~gc shot~ld be added in the or in the mle to 

clarrjy. 

(c) ..... Ea new facility is brought into the flexible permit, an emission cap shall be adjusted 

by 1 . . . . ' Increasing the emission cap in accordance 

with the new source's emission limit for thc specific air contaminant based on the 

total emission of that pollutnnt adjustcd by an insignificant emfssions factor. 

This !ar;lpnge clarifies that the cap is adjzrstedoniy for the new solrrce uddzd to rlte cap. 

Existing sources i17 I'he cap do not repire rnodij?cnrio~t, 
KT 20 ' 94 03: 39PI.1 RPC EHS IPT85) 1 HOLI 

116.7 16(d) Insignificant Emission Factor. For the specific air con t~rninants and 

facilities with provisions for operationnl or physical flexibility, the emission caps and 

individual emissions limitation may include an insignificant emissions factor .. . . .. .... 

116.718 Sirnificant Emission 'Increase 

An increase in emissions from operational or physical changes at sn existing facility 

covered by a flexible permit is insignificant, for the purposes of state new source review 

under this subchapter, if the increase does not exceed either the emission cap or individual 

emission limitation. This section does not apply to an increase in emissions from a new 

facility other than areplrcement facility in accordance with 116.721(b), not to the 

emission of an air contaminznt not previously emitted by and existing fzcility. 

n?is change alIows replacement futilities rrtil;'ii,vg BACT to be illstalled under the 

jlexible permit. 

At a minimunl, 1X.riCC sho~rld c~nsider amechanism jor a streamlinedprocess for 

owners or operotors consm(cting replacerne?7t$tcililies lhnt meet BACT reLpirem2nis. 

11 6.72 1 Amendments and Alterations 

(b)(2) AU flexible permit alterations whic.h may involve a change in a general and special 

provisions contained in the flexible permjt, or adversely affect control equipment 

performance must receive prior approval by the Executive Director. The Executive 

Director shall be notified in writing of replacement fncilities utilizing best available 

control technology (BACT) in accordance with 116.711(3) and all other flexible permit 

alterations within 10 days of implementing the c,hange.. ...... 

(d)(2) Emission increases authorized by standard exemption at sn existing facility 

covered by a flzxible pemh &W may cause eeedaaeincrease of the emissions 

cap or individud emission iimitation. unless prohibited by permit provision. 

Historical~v, permit limits can ejfeclitlcly be increased using ...hrd exemptions. At 

this time the regulutsd cornmunip, wi/h the zrncertainty of this ttew program, is nor 

~sifling to relinquish zhe abiliw to makc s~ch changes in pcmit limits. -4s a compromise, 

the repdated commrlnip slrggests ollow~l:z-~g increases in he permit lhlits suhjecr to tt5e 

aht of the agency to prohibit such increnses on a case-by-cose b'lsis. 

In our opinion, there is no reason to remove the benepts achieved by stanahrd 

exemptions simply 6eccluse scme degree ofj7exibiIif is obiaincd in ihe ')lr?xiblepennit". 

The 'Iflexible pennit"program sho~tld not be designed to ";orovide"$!exibiIity in one area 

and lo 'Z.ernove"flexi bilityfiom existing XWCC programs. 
October 20, 1994 

Gary McArthur 

'Regulation Development Section 

Ogfice of Air Quality Planning 

.Texas Natural Resource conservation Corniission 

PiO. Box 13087 

Austin, Texas SENT BY FAX 234. fS00 

Re: Co-ments of Texas Center for Policy Studies on Proposed 

Flexible Air Quality Perxit Rules 

Dear Mr. McArt'nur: 

Please accept the following coirments on behalf of the Texas 

:Center fox Policy Studies xegarding the 'proposed xules for 

'.Elexibl.e air quality permits (19 Tex. Reg. 7334, et seq.). For 

the reasons set forth below, .the Texas Center for Policy Studies 

. .opposes . the adoption of these rules. 

Oenexal Copmn~n.t;: TCPS was represented on the Air Quality 

W~rking Group of Task Force 21 that was asked to examine the 

flexible permitting issues raised by mOGA, The proposed rules 

go far bevond the scope of what that work group even considexed 

in that the rules would ap2ly not only to existing facilities, 

but also to any new facility. (proposed § 116.110). By extending 

the flexible permit concept to cew facilities, TNRCC staff has 

disregarded the work of the Task Sorce and gone far beyond even 

what the regulated industry was initially requesting. Such 

action su5stmtially undermines the value and credibility of 

TSRCC's whole comitment to informed public participation through 

the advisory conmittee process. The oniy way to compensate for 

this would be to rewire notice and opportunity for public 

hearing oa all flexible permits. 

The initial, limited mandate of the Work Group was to 

examine rules that while providina for increased nxotection of 

the enviroxment and hunan healkth, would provide appropriate 

incentives for companies to bring grand-fathered or other poorly 

controlled sources under better control. c his aspect of the 

discussion has been relegated to alaosc a sidelight, as TNRCC 

permitting staff has used the opportunity to turn Texast wellestablished and fairly effective air quality permitting system 

upside dovm. Instead of structuring a set of rules to respond to 

only those proSlens which could clearly be demonstrated by the 

PeO. Box 26 18 Awti~, Tw 76768 52/4744811 

*-' 

100% figclcd Paper 
industry, TNXC staff is proposing to create a whole new 

"alternativea permitting framework without an^ evidence that such 

whole changes are necessary or in the public interest. 

TCPS subnits that the several aspects of the proposed rules 

(including emission cap$, allowing new facilities to be 

cpnstructed under flexlible permits and failure to require BACT 

for each facility, as that term is defined by the Texas Clean ~ir 

Act) violate state law. 

As a final general comment, TCPS believes that TNRCC 

adoption of these rules could very well throw the whole air 

permitting and enforcement system into chaos. The proposed rules 

are extremely vague with respect to the type of information that 

pennittees can use to demonstrate compliance with multiplefacility or plant-wide emission caps. TNRCC is forsaking clear 

technology-based psmit requirements for a system that depends on 

the ability to siniultaneously and accurately measure, at any 

point in time, emissions from sevsral sources and determine 

whether, at that point in time, emissions are below the cap. It 

is our view that such compliance can only be assured if the 

sources that are subject to the cap have cantinuous emission 

monitors. The rules do not require the use of CEMs, however. 

Comments oa Specific Sections of. the Proposed ~ules~ 

Section li6.71O(a) should Se re-stated to make it clear that 

flexible permits can only be used for sources/facilities at ~ne 

geographic"g1ant location. Under the existing language, it might 

be argued that. a company could seek a flexible permit covering 

facilities in Beaumont and ~?~.Stin together. 

Section 1J6.13 and throughout proposed rules: if there is a 

d$fference.in the term "facility" and the phrase "individual 

.f&cilityvhat. difference should be made clear. 

Section 116.117(a)(6) should be clarified to make it clear 

that a permit 'applicant must demonstrate full compliance with all 

applicable rules and statutory reyuireinents before a permit can 

be issued, and that the further demonstration [after a permit is 

issued]-is not a substitute Lor pre-permit proof. 

Section 116.711(a)(9) xepresents a major policy shift for 

the TNRCC inproposing to allow modeling to be used instead of 

monitoring. By this rule, TNRCC is undernining its ability to 

_reauir% modeling data. rt is our position that even if good 

quality, relevant monitoring data is available, modeling should 

By these comments, TCPS does not waive any objections to 

the overall legality of the propossd rules, nor do we in any way endorse their adoption. 
also be required. Air quality modeling is a valuable tool that 

provides the TNRCC with the full range of data needed to make 

,fully-informed permitting decisions. TCPS believes this section 

of the rules should be re-worded to make it crystdl clear that ' modeiing will be required in all appropriate cases. 

Section 116,916 (c) should be revised to allow only 1 months 

for temporary shut-eowns unless the pernittee can show that..there 

as .no alteniative to a longer shut-down. The emission cap should 

remain in effect only during a,shut-down of tha minimum &ration 

necessary, and Ln no case should the cap remain in effect during : a shutdown of longer than 12 months. 

Section 116.71S(c)(8) is an integral part of any flexible 

permit rules and must be retained if the rules are adopted. 

Section 116.721 (c) and (d) show just how difficult it will 

be to keep track (for enforcement purposes) of exactly what is 

happening at a large facility that uses flexible permitting. Even 

if the facility-wide cap or individual emission limit cannot be 

exceeded by process changes or use of a standard exemption, ig is 

difficult to understant! how TNRCC will be able to track sources 

for emission inventory purposes (as we understand it, the 

emission inventory is supposed to be based on actual emissions). 

Before adopting these rules, 27XRCC should clearly outline for 

both the public ad the regulated industry how enforcement and 

emission inventories will be carried out for facl1ltie.s operating 

under flexible permits, using specific examples. 

Thank you in advance for your consideration of these 

comments. 

Sincerely, 
Texas Eastman Division 

EASTMAN P.O. Box 7444 

Longview. Texas 75607-7444 

Phone: (903) 237-SbO0 

Eastman Chemical Company 

October 2 1, 1994 

Gazy M&rrr, P.E. 

Regulation Development Section 

Oflict Air Quality 

Ttxa Natural Resource Consewation Cammission 

P.O. Box 13087 

Austin, Texas 7871 1-3087 

Re: Pmposed Flexible Permit Rule 

Dear Mr. McAnhar: 

Texas Esstman Divibian, Eastman Chemical Company (Eastman) is a manufacturer of chemicals and 

plastics and operates facilities in Harrison and Smith counties. We frequently apply for permits for new 

construction and modification, and have a sigrrilicant interest in the proposed rule. 

Easeman fully endones end supports the comments subxpitfed by the chemicd industry members of the 

Task Force 21 Air Issues Workgroup. Our wncarns with the proposed mle have been addressed in those 

comments. 

Eastmiin also believes that TNRCC is demonstrating great vision in the implementation of this new 

permitting mechanism. The new rule will both improve the economic climate in Texas and duce 

emissions. This alternative permitting framework will increase operational flexibility at sources that are 

equipped with the appropriate wntrol technology. The regulated community will be in a better position 

to quickly respond to natural market forces aad to special customer requests. In turn, Texas industry wilI 

be positioned to compete more effectively in the global marl;etplacc. However, in allowing the additionai 

flexibility at lowemitting racilities, the WRCC is also providing an inceruive for Texas industry to install 

controls. As a result, emissions to the atmosphere will be reduced and the environment will benefit. Tho 

new flexible permitting framework is a win-win proposd, ad wc fully support its implementation 

If you have my questions, please call John Tollescur, P-E., at (903) 237-6128. 

n 

Very truly yours, 

- Datl Baughm~, P.E. 

Manager, Environmental Affairs 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SLllTE 1 200 

DALLAS, TX 75202-2733 

[&TI' 3 1 1994 

Ms. Jodena N. Henneke I i 7.:. :: .. ..'..2 

Director ? -. . . ,:,- ,-:.. La-- -..-__ ' - . . .. \'-" ,- ---.- . -. . .. Air Quality Planning Division .--2 --:- -2: .:::..I 

---.. i 

Office of Air Quality 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 

Austin, TX 78711-3087 

Re: Comments on Proposed Regulation for Flexible Permits 

Dear Ms. Henneke: 

We have reviewed the proposed revisions to Regulation VI to 

incorporate provisions for issuing flexible permits. We had 

earlier provided comments to the permits program on 

August 19, 1994. Several of our comments were addressed in the 

proposed regulatory changes. We thank you for reviewing and 

considering these comments. On the basis of our review of the 

proposed revisions, we have comments and items of concern that 

should be addressed in the public record prior to adoption. Our 

comments and items of concern are as follows: 

General Comment 

Item 1. The development of these revisions to Regulation VI has 

occurred at the same time as activities of the New 

Source Review (NSR) Reform Subcommittee, which is 

reviewing recommendations to reform the national NSR 

regulations. Many of the recommendations under 

consideration by this national subcommittee are similar 

to the revisions under consideration for Regulation VI. 

We want to advise you that it may be necessary to 

revise your regulations in the future to be consistent 

with the final regulations resulting from the NSR 

reform subcommittee. We encourage you to continue your 

coordination efforts of the national subcommittee to 

assure consistency between the State and national 

regulations. This will minimize the need for further 

revisions of Regulation VI following the adoption of 

Federal regulations. 

a Recycled/Recyclable 

77 (\ Prln1m-I 4th SnvlCannla ink an naacr that 
section 116.711. Flexible Permit A~~lication 

Item 2. Paragraph (1). Protection of Public Health and 

Welfare. The requirement to protect public health and 

welfare should be expanded to address that there will 

be no exceedance of the national ambient air quality 

standards (NAAQS) and prevention of significant 

deterioration (PSD) increments. This should also 

include requirements to address other air quality 

impacts which must be addressed under the Federal Clean 

Air Act (CAA), including but not limited,to, impacts on 

air quality related values in Class I areas. 

Section 116.718. Sisnificant Emissions Chanqes 

Item 3: . This Section appears to specify that a proposed 

increase is significant if such increase exceeds the 

previous permit allowable by a signif j.cant amount. (the 

potential to potential test). The public record should 

address how this will satisfy the requirement of 

§116.711(1) which requires a demonstration that public 

health and welfare will be protected. The protection 

of public health and welfare should address th'at the 

increase will not cause or contribute to an exceedance 

of the NAAQS or PSD increment. Also, the public record 

should consider using a lower baseline for determining 

significant increases whenever air quality modeling 

which hasbeen conducted in the area has included 

emissions which are less than the allowable emissions. 

In closing, you are again advised that the national NSR 

reform regulations have not been promulgated. Our comments 

represent our concerns that you should consider for the period 

prior to the promulgation of these national regulations. 

Following the final promulgation of these national regulations, 

it maybe necessary to revise the State regulations to ensure 

consistency between the State and national rules and regulations. 

We appreciate the opportunity to review provide c~msnts 

on these propos'ed revisions. If you have any questions, please 

call Mr. Stanley M. Spruiell of my staff at (214) 665-7212. 

Sincerely yours n 

Thomas H. ~ig~k J " 

Acting Chief 

Air Programs Branch (6T-A) 
POST OFFICE BOX 3950 BATTOWN. TEXAS 77522-3950 I 

October 21, 1994 

REFINING DEPARfMEM 

BAYTOWN EFINERY 

FLEXIBLE AIR PERMITS 

COMMENTS ON PROPOSED RULES 

File: 30.116.710 

Mr. Gary McArthur 

Regulation Development Section 

Office of Air Quality 

P.O. Box 13087 

Texas Natural Resource Conservation Commission 

Austin, Texas 7871 1-3087 

Dear Mr. McArthur: 

I am writing on behalf of Exxon Company, U.S.A., Baytown Refinery to submit 

our written comments on the proposed rules of the Texas Natural Resource Conservation 

Commission (TNRCC) regarding Chapter 116 of Title 30 of the Texas Administrative Code 

that were published on September 20, 1994, at 19 Tex. Reg. 7334. These proposed rules 

primarily deal with the subject of flexible air permits. 

The Baytown Refinery, which is located in Baytown, Texas, is a maximum 

conversion petroleum refinery that processes crude petroleum into usable products such as 

gasoline, diesel fuel, jet fuel, lubricants, solvents, fuel gases, and feedstock materials for 

chemical plants. The Refinery has more than 1,850 regular employees with an annual 

payroll in excess of $140 million. In 1993, the Refinery paid over $50 million in state and 

local taxes. We are commenting on these proposed rules because they could have a 

significant impact on the operation of the Refinery since it contains facilities subject to 

Chapter 11 6. The Texas Mid-Continent Oil & Gas Association (TMOGA) and the Texas 

Chemical Council (TCC) will be submitting comments on these proposed rules on behalf of 

their members. We are a member of TMOGA, and support both the TMOGA and TCC 

comments and incorporate them into our comments. In addition, we would like to make the 

following specific comments. 

Overall Support for Proposed Rule 

Overall, we strongly support the concept of flexible air permits, and encourage 

TNRCC to adopt the rules as soon as practicable. The flexible air permit concept has the 

potential to allow facilities to be protective of the environment and to comply with everA DIVISION OF EXXON CORPORATION 
Mr. Gary McArthur - 2 October 21, 1994 

increasing air regulations, but in a more cost-effective manner than the traditional 

"command-and-control" method of regulation. Traditional air permits have tended to 

constrain the operation of a facility such as a petroleum refinery by placing limits on crude 

throughput and composition, instead of having the proper focus, which is air emissions. 

The flexible air permit concept is a step in the right direction. Under a flexible air permit, 

the level of air emissions (and thereby the impact on the environment) is set and then the 

operator is free to determine how best to run the facility. We encourage TNRCC to expand 

this concept to other regulatory areas to allow industries to maintain corr~petitiveness in the 

global marketplace. Although we generally agree with the proposed rules, we do have 

some concerns and recommendations for improvement. In our recommended changes to 

the proposed rule language, the rule language is indicated by italics, additions are 

indicated by underlininq, and deletions are indicated by sWewef. 

Temporaw Shutdowns 

TNRCC specifically requested comments regarding the proposal in 

5 116.716(c) that would require the emission cap to be readjusted if a facility that is subject 

to the emission cap is shut down for a period longer than 12 months. For any number of 

reasons, including changing market conditions and equipment maintenance and repair, a 

facility may be temporarily shut down with the intent to resume operation in the future. 

These temporary shutdowns should not affect the emission cap. However, a temporary 

shutdown may last for longer than 12 months, and we recommend that the proposed rule 

be revised to provide for longer temporary shutdowns without resulting in a readjustment of 

the emission cap. We recommend that the language of the propose rule be revised as 

follows to provide that a shutdown of 12 months or less will always be considered to be 

terr~porary and not result in a readjustment of the emission cap, but that a shutdown of 

longer than 12 months may result in a readjustment, but that a readjustment is not required. 

We also recommend a correction to the word "emissions" to use the singular form for 

consistency. 

(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 sbaUm be readjusted 

. . . modifying the emissions cap accordingly. 

Resettins the Emission Cap at Permit Renewal 

TNRCC specifically requested comrr~ents regarding whether the emission cap 

should be reset at the time of permit renewal to more closely reflect the actual emissions 

over the life of the flexible permit. We strongly object to resetting the emission cap for this 

reason, since it would be inconsistent with the whole concept of a flexible permit. The 

llexible permit provides an emission cap, which in essence provides a ceiling on emissions 

for the facilities subject to the cap. An operator is allowed to make physical and operational 

changes that may result in emission increases and decreases so long as emissions do not 

go higher than the ceiling. This ceiling is what provides the flexibility. If the ceiling is 

lowered over time at permit renewals to reflect the amount of actual emissions, the flexibility 
Mr. Gary McArthur - 3 October 21, 1994 

would be eliminated, and the operator would return to the current situation of submitting an 

amendment application for physical and operational changes. Since facilities that are 

subject to an emission cap will be well-controlled and will have acceptable impacts, there is 

no justification for resetting the emission cap at permit renewal. 

Readiustment of the Emission Cap I Individual Emission Limitation for Federal Clean Air 

Requirements 

TNRCC specifically requested comments regarding requiring readjustment of 

the emission cap andlor individual emission limitations as a result of emission reduction 

activities required by rules pursuant to the Federal Clean Air Act. If such a readjustment is 

required, we recommend that the procedure should be to require that a proposal to readjust 

the cap or limitation 60 days prior to the compliance date of the federal rule and that the 

readjustment will be effective on the compliance date. This should provide adequate 

opportunity for TNRCC to review the proposed readjustment and would not implement the 

readjustment prior to the time that the federal emission reduction is required. 

1 16.1 3. Flexible Permit Definitions 

The defined term "Emissions cap" should be changed to the singular 

"Emission cap" to be consistent with the use of the term throughout the proposed rules. . 

§ 1 16.71 1. Flexible Permit Application 

We recommend that subsection (2) be revised as follows to be consistent with 

the comparable permitting provision in 5 1 16.1 1 1 (2): 

(2) Measurement of emissions. The proposed facility. . . provision for measuring 

the emissions of siqnificant air contaminants . . . Sampling Manual." 

We recommend that subsection (3) be revised as follows to be consistent with 

the other subsections: 

(3) Best Available Control Technology. The proposed facility, group . . . individual 

facility. 

We recommend that subsection (6) be revised as follows to be consistent with 

5 116.1 1 l(6): 

(6) Performance demonstration. The proposed. . . achieve the performance 

specified in the flexible permit ap~lication. In addition . . . may be required. 
Mr. Gary McArthur - 4 October 21, 1994 

116.71 5. General and Special Conditions 

We recommend that paragraph (c)(8) be revised as follows. It is not clear to 

us whether an issue is addressed by this provision that is different from the temporary 

shutdown provision of 5 1 16.71 6(c), but in our opinion the logic should be the same 

regarding the period of time and the requirement to readjust the emission cap. Please refer 

to our comments on this issue above. 

(8) Emission cap readjustment. If a schedule to install additional controls is included 

in the flexible permit and a facility subject to such a schedule is taken out of service 

for a loeriod lonoer than 12 months, the emission cap contained in the flexible permit 

dmay be readjusted for the period the unit is out of service . . . shall be obtained. 

3 116.716. Emission Caps and Individual Emission Limitations 

It is not clear to us from the proposed rule in this section, the remainder of the 

proposed rules, nor the preamble, what is TNRCC's intent regarding the form of the 

emission cap or the individual emission limitations, specifically in terms of units and 

averaging time. Although the preamble refers to "[slhort term emission cap(s) or individual 

emission limitations", the proposed rule is ambiguous regarding what will be required. 

Since this issue is not dealt with at all in the proposed rule, we recommend that TNRCC 

continue the work group regarding this rule and subsequently develop and proposed a rule 

that defines and clarifies what will be required. 

§ 1 16.716(d) lnsianificant Emission Factor 

This is probably one of the most critical sections of the proposed rule because 

it in effect establishes the level of controls that will be required in order to obtain a flexible 

air permit. The end result appears to be a requirement to install what can be referred to as 

"BACT plus 9%". TNRCC has indicated that the anticipated environmental benefits of 

flexible air permits include "the permitting of grandfathered units" and "substantial emission 

reductions from the installation of controls". The decision to include a facility or unit in a 

flexible air permit will be greatly influenced by the amount and cost of the additional 

! controls that would be required compared to the anticipated flexibility benefits that will be 

obtained. If too much additional control is required, the cost of the additional controls could 

outweigh the flexibility benefits and the facility or unit would not be included in the flexible 

air permit. The result would be that the anticipated environmental benefits that TNRCC 

seeks to achieve would not occur. This is an especially sensitive issue for older, 

grandfathered facilities or units, where upgrading them to current BACT may be 

prohibitively expensive or even impossible. 

Although we do not know at this time whether the proposed "BACT plus 9%" 

requirement will be too stringent, it appears to be close enough to a requirement to install 

BACT on all facilities that it raises a concern. TNRCC has indicated an intent to reevaluate 

the rule within one year of the date of approval. We urge TNRCC to specifically include the 
Mr. Gary McArthur - 5 October 21, 1 994 

insignificant emission factor in this one-year reevaluation to ensure that the "BACT plus 

9%" requirement is not unnecessarily impairing the use of flexible air permits, and thereby 

preventing the achievement of the stated design of the flexible air permit program to 

"exchange flexibility for emission reductions with the final goal being a well-controlled 

facility." 

We welcome the opportunity to provide written comments on these proposed 

rules, and hope that our comments will assist TNRCC in developing the adopted rules. 

Please call me at 713-425-7525 if you have any questions. 

Sincerely, 

G. Michael White 
September 18, 1994 

Regulation Development Section 

Air Quality Planning 

TNRCC 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear TNRCC, 

I am resubmitting, on behalf of the Galveston-Houston 

Association for Smog Prevention (GHASP) our comments to Jeff 

Saitus about the proposed flexible permits. Since the proposal 

has not changed we request that our comments from 9-9-94 be 

accepted into the record as our comments regarding this proposal. 

Thank you. 

Sincerely, 

GHASP 

1301 Richmond Ave. T-2 

Houston, Texas 77006 

H713-521-9534? W713-640-4313 



A) kwh- 116.7/1 1 / -4 13 r+,II *wb~ . - 
Mr. Gary McArthur 

Office of Air Quality 

Regulation Development Section 

Texas Natural Resource Conservation Commission 

P. 0. Box 13087 

Austin, Texas 7871 1-3087 

Re: Comments on Chapter 116 - Control of Air Pollution for New Construction or Modification 

Dear Mr. McArthur: 

Houston Lighting & Power Company (HL&P) is an investor owned electric utility serving a 5,000 

square mile area of southeast Texas. As owner and/or operator of 11 generating stations with various 

permitted facilities, HL&P operations would be impacted by the creation of a flexible permits program as 

proposed to be included in the TNRCC rules as Subchapter G of Chapter 116. We respectively submit the 

following comments to the proposed rules as published in the September 20, 1994 edition of the Texas 

Register. 

HL&P fully supports the TNRCC concept of creating the flexible permit as a means of providing an 

optional alternative to the preconstruction permits now authorized in Subchapter B, concerning New Source 

Review Permits. HL&P believes that for the flexible permit to be beneficial, flexibility needs to be 

maximized to the fullest extent possible so as to encourage participation. As well as increasing flexibility, 

the program should be totally voluntary and provide incentives for innovation, reduce the cost of 

compliance, and enhance environmental benefits. Establishment of an overly burdensome program will not 

only discourage participation but reduce possible environmental benefits. 

In addition to the above, HL&P supports the comments of the regulated community representatives 

of the Task Force 21 Air Issues Workgroup submitted by Susan Moore of Amoco. 

Houston Lighting & Power Company appreciates the opportunity to review the proposed regulations 

and provide comments for your consideration. 

Sincerely, 

Manager, Air Resources Division 

Environmental Department 

A Subsidiary of Houston Industries Incorporated 
TEXAS MID-CONTINENT OIL & GAS ASSOCIATION 

Lester Clo& Breckenridge 

Choimn 

Robert L Looney, Austin -- President 

John J. Calwl Austin 

Vice-President 

lor Communication, 

WhlSom L Enni~ Austin 

October 2 1, 1994 

Kce-President 

for Membership 

Gndy L Morphew, Austin 

Vice.Pma&nt 

for Enironmenlol Affoin 

&niarnin W. Sebne, Arntin 

Wce-President Chairman John Hall for Governmental Affoin Texas Natural Resource Conservation Cornmission Jim Sierm, Avrfin 

Vice-Presidenl 

lot Finonce 

P.O. Box 13087 

Austin, Texas 7871 1-3087 

District 

Vice-Presidents 

E. L Am Jr- Son Antonio Dear Chairman Hall: 

Danny H. ConlrL* Amarillo 

The Ponhondle 

&rl Harkir* Corpvr Chrid 

The Lower Gulf Coast 

A. V. Jam Jr. Albany 

West Centml Texos 

W. A Londnh Jr. Fort Worth 

Yorlh Centrol Tcxos 

Curtis W. Mewbourn., Tyler 

Eort Teiol 

Joseph L O'Nell Ill. Midland 

The Permion hrm 

W. M Rocker, Jr. Wvchita FoL 

Norlh Teros 

John K Young, Houston 

The Upper Gulf Cwrr 

ppqi/ 

PERMITS PROGRAM [ 

Thank you for the opportunity to comment on flexible permits. Texas 

Mid-Continent Oil and Gas Association has appreciated the opportunity to 

work with the TNRCC on this and other issues impacting our members. 

We recognize the effort that your staff and our members have put into [ 

developing this proposal, and look forward to opportunities to work together 

in the hture. Please do not hesitate to call if we can provide hrther 

information. 

sincere?, 

YEARS OF SERVICE. RL: cg ACHIEVEMENT, 

UNITY Attachment 

&$jc 

ob ooney 

11 15 Son Jocinlo Boulevard . Suite 275 . Aushn. Texos 78701.1980 . TELE: 512/478-6631 . FAX: 512/472-3859 
& delete . bold - add 

Italics- oomments on proposed rule 

General Commtng 

&wnse to TNRCC Reaucst fir Comments on Tem~oraw shutdowns: 

Temporary shutdowns up to 12 months should be allowed without reducing Ireadjusling the cmission cap. 

Requirements Lo readjust an emission cap based on temporary shutdowns less than 12 months would be 

unduly burdensome for borh the pennittee and TNRCC. It is expeatd that many units might be included 

in an cmission cap. Temporary shutdowns for repair and maintenance, for example, may be staggcrad 

over a period of rim. Therefore, it is teasonable to expect that one unit in the cap could shutdown, 

startup, and thcn another unit shutdown, and so forth. Therefore, the pennittcc would bc forced to & 

frequent adjustmenu of the emission cap. A source wouid have to reduce its emission cap due to a 

~rnporary shutdown, and then a fcw months lab the same source would laan to mdjon its cap when rhc 

temporary shutdown was campleted and the unit was ready again for operation. Mead, we believe that 

twelve months is an appropriate cutoff ta disting~ish temporary shutdowns from shutdowns that wanant 

a reduction in the aission cap. As such we supporl thc TNRCC proposal to allow temporary shutdowns 

afup to twelve months in length without rtducing or readjustjng the emissions cap. 

Reswnse to TNRCC Rcauest for CommenG on Actual versus Allowable emid-: Pesettinv at Renewal 

Resetting tbe emission cap at permit renewal is inconsistent with the goals of a flcxible permit There will 

be no BcxibiIity to make operational or physical changes ifa facility is operating at its "allowabk" 

emission rate on a routine basis. Wlc the program can be cxp#ted to mlt in some inneascs in actual 

emissions; these inacases will be within the owtall consVaint ofthe permitted allowabk emissions. 

Furthermore, thcst increasm would occur only at facilitlts that are well-controlled and have 

accept JIe impacts. In addition, the increases would be expected to occur under the current system 

but only aftcr a rcview requiring considerable unnccessau company and agency rerourcc~. 

Therefore, if faalities were rcquind to met their emissions at renewal, the bencfit of the flexible permit 

would end 81 renewal and the current practice of submitting an amendment application each time an 

operational or physical change is made would be perpetua~ed. 

Resetting tho emissions cap and/or individual emission limitation as a result of emission rcbuction 

activjties remired bv mlcs~ursuanr to thePdcra1 Clean Air Aq 

If a facility or souroe already meets or cxcceds the limitauon spccincd by ruIa pursuant to the Fedd 

Clean Air Act, then no additional action should be requird by rhe facility owner QT operator. If, 

howenr, additional crnission reduction activities arc required to compIy with mch rules thcn, the 

facility owner or operator should submit a proposal to nadjua thc cmission cap 60 days before rht 

compliance dale of the Federal rule to be cBectivc on the compliance date of thc Federal mle . 

Banking 

Fteductions from existing faciliries should be available for banking or as "creditable' reductions. 
The purpose of this proposed rule is to allow a "wellcontrolled" facility the flexibility to make somc 

changes in a streamlined hhion without requiring a permit or pcrmit amendment. This purpose is not 

hindered by allowing a hility to use emission reductions as offsets. Instead, the ability to use these 

reductions as offsets encourages sources to makc reductions. Additionally, since there is an ofkt ntio fbr 

nonattainment arcas gmtet than I-to-1, the environment will benefit fiom encouraging these offset 

uansacuons. For mplq the HoustordGdveston nonattainment area has a 1.340-1 &set ratio which 

means that for R'QY ton of cmission to be offset, the facility must use 1.3 tons of emissions. Therefore, 

there is an environmental benefit of 0.3 tons of emissions for each ton of the new project to be offset. 

Additionally, emission rcduction credits to bc sold as 0flkt.s have a limited lifc as do netting credits at 

certain facilirics. Funhermore, these emission reduction credits expire when the rcduaions become 

rnandakd by regulation. 

Atso, the nonattainment arcas need a mechanism for generating afFseu so that facilitics can usc these 

offsets to make any necessary changes. If the regulations prevcnt a flexible permit holder from generating 

offsets through emission reductions, sourccs will be discouraged from seeking a flexible permit. 

Additionally, these &sets will beoome more scam causing a reduction in the number of cnvironmontally 

beneficial off- trades and drastically increasing the cost of new projects and changes h thc 

nonattainrnent area. We belicve that this scarcitv of offsets could practically result in a ban on new 

projccrs in the HoustordGalveston rcgion with the associated damaic to the ;conorny of this arca 

)?stablisMna Emission Limug 

Any scenario for a "flexible permit"shou1d provide incentives for innovstion. reduce thc cost of 

complianw, cnhance environmental benefits. and incrcase flwibiliry. It should be a voluntary pro 

which recognizes the costs associated with compliance. It should value emission reductions from 

pennjtted as well as grandfathered facilities. It should value emission reductions whethcr from an 

individual operating unit or source, group ofsources, the entire plant, or any ambination of pe 

grandfathered units or sources. It should allow for establishment of cmission limits on a pollutant 

pollutant basis or category of pollutants. 

These cancepts provide a framework which outline some of the goals necessary for sucocssful ..-.. 

implcmrntation of this program. It is essential that these elemtnts are dwrly conveyed in the text of thc 

proposal and in the preamble. Many of our comments are directed to provide such clarification. 

Uteraction of flexible was with the Titlc V OoeratinePermits Program 

TNRCC and workgroup members have not discussed in dctail the interaction of the flexible pennit with 

other federal programs. 

However, in ~ral, industry believes that an individual source should not bt defined as "major" simply 

because the cap is "majorm. Theflexible permlt in and of itse~should not trigger additionalfiderol 

reqicinmenh which would not othorwiss be imposed. 

$necific Commcnts on TNRCC 's Prorioscd Rules: Subchanter G: Flexible Permits 

Individual cmission limitation- Emission limit for a specific air contaminant not covered by an emission 

cap for an individual facility adjusted by an Insignificant Emissions Factor for the specific air 

contnminrats and facilitics with provisions for future operational and physical flexibility. For the 

specific air cootaminnnt and facilitics not dulring modificstlon in the flcxiblc pcnnit, the individual 

emission limit for the specific air contaminant not covcrcd by an emission cap is the permitted or 

grandfathered ernisfion rate. 
Refir to 11 6.71 l(3) for additlor~al commen~clarijcafion. 

116.7 11 Flexible Pmi t Applicatio~l 

The propossd rule is unclear In terms of the scope of R4fl m cases where an applicant for ajlexlble 

pennit may be requesting limifedjlexibility by having an emisslon cop on one specijicpl~utunt bur not 

on otherpollufants. An example would be a petmleum refinery darlring to haveflerlbili@ in the svlfir 

content of feed stocks but operating In compliance with arlsting NOx and VOC limiu. The VOC and NOx 

limftsshould remain as inrtividuaJ emission lim/ts but the SO2 emim.ons could be specifaed in a 

ernissISSIons cap. 

As we have stated in the pad, thej7eziblepermit should notforcr he oreotion ofplanl-wide oops or 

plant-wide psnnltting. It should, however, allow fncflity owners or operators the peedom to choose 

which pollutants to include In an emissions oap and/or which pollutants to inolude as individual emission 

limits. 

We propose that 116.711 (3) be clarijicrd to indicate that R4CI would be unlized wflh rwpect to tho 

spcovc air conturninants and facilities which would be afleotcd by the physical and operationolji'exibiliry 

proposed by the applicant This could be ammplished by irrxning appropriate funpage in Rule 

116.711(3) as follows: 

Th+ fidily, mup &facilities, or account wiU utilize BACT, with consideration given to thc khnical 

practicability and economic reasonableness of reducing or eliminating thc emissim fiam thc iscil 

facility, group of faciliues, or account basis. For any new facilities associated with the flexible 

BACT will be applied with rcspcct to nll air contnminnnts emitted by the fncility. For exlsti 

facilities, BACT will be applied with rcspcct to the specific air contaminants and facilities w 

emissions would be affcctcd by the flexibility to be granted by the pcrm1t Conuol techno1 

beyond.,..,. 

Add a new ibm under existing item 4 and 5 as folfqws: 

Applicability of NSPS or NESHAP sfandards and any other applicable rules and regulatio 

TNRCC rhall be considered in ertablithing the cmiuioa rap or In setting special prwitio 

flerible pcrmit. For a flexible pennit, a source/rourcts will be considcred In compllmce 

standards if cmissions from ail sources covcred by the naiblc pcmit am below the emission cap -.. . _ . .-_...- . . 

and spccial provisions of the flexible permit an satldcd. 

The above language clarij?es that compliance is based on the enllsslon cop and no! individual emission 

limits. Addlfional requlraments covered by ASPS or NESIMP (a& ar /he control ~Ificienoy) should be 

covered in special provisions ofrhe flexible permit. TNRCC jhould encourage ERA support ofth:'s 

concepr. 

(10) Application Content 

(E) for each individual emission limitalion , idenlify the EPN and provide emission rate calculations 

based on the expected maximum capacity and thc proposed control tcchnology and for each air 

contrmlnant which is not modified as JI result of the flexible permit and for which an emission cap is 

not desired, Identify Its individual emission limitatton, its EPN, rnd provide tmlssion rate 

calculations based on grstndfathcrcd or pcrmiltcd limits and the existing control tcchnology. 
This laquage clar$es thot emission limits car1 be established on apollutant-bppollutant basis; It is 

consistent with TMZCCZ staflpropsal ro combine operational/Iau'bilify and be alrernan'w permitting 

fiamcwork dated June 22, 1994 whiah reads asfillows: "Emission limits would be established on a 

pollutanf-by-pollutant basis. The appliconr could elect to establish source caps/or all pollutants of any 

particular pollufant ~ncluded in the flexible pcrmlt. " 

Furthermore, langwga should be added to indioott that emission rate oalcukatlons do not need to be 

provided during amendment of a fkxlble pemir for una1eot8d soufoes. This would be a duplicalive 

e?ortfif the applicant. 

116.715 Gencral And Smial Conditions 

(8) Emission cap readjusunent. If a schedule to innall additional controls is included in the flexible 

permit and a facility subject to such a schedule is taken out of service, the emission cap contained in the 

flexible permit will be readjusted & . . 

as required in ~pccial provisions of the permit. hies Ua special provision docs not 

specifia the method of readjustment ofthe emission cap, a permit alteration shall be obtained. 

Thejiaoility owner or operator and TMiCC should review the provisions necessav to address shutdowns 

jiorjiacillties that receive a schedule to install cuntrols. 

116.716 El 

allowable. Again, as $rated in our general comments, this is inconsishnt with the entirs notion 0f.a 

jlcxible pennit. Furthennore, the issue of "emission levels appropn'ate fir the proposed controls" should 

not be a ooncern since fadlities operating under an emission cap will meet BACTand impacts 

requirements when the jlexlble pertnit is issued. 

However, we would support an appliaant's desire to limit their expected maximum capaciry I/ they 

desire to use that copacify in oalclrlorion of an individual emlssion limit. If this is rhe intent, rhea 

language should be added in the preamble or In [he ruls fo clarifl. 

(c) ,.... If a new facility is brought into the flexible pcrrnit, an emission cap shall be adjusted by medi+q . . -Increasing the emlssion cap in accordance with the new source's 

cmission limit for the specific air contaminant bascd on the total emission of that pollutant adjusted 

by an insignificant cmiuions factor. 

This language o/ari/rss thot the cap is a$vsfed only for the new source added ro the oap. Existing 

sources in the cap do nor require modr;licorion. 

116.716(d) Insignificant Emission Factor. For the specific afr contaminrnts and facilities with 

provisions for operational or physical flexibility, the cminion caps and individual cmjssions limitation 

may include an insignificant emissions factor .......... 
116.718 Sidficant Emission Increase 

An increase in emissions from operational or physical chngu at an existing facility covered by a flcxiile 

permit is insignificant, for the purposes of state new som revicw under this subchapter, if thc increase 

does aot cxcecd eithcr the emission cap or individual emission limitation. This section does not apply to 

8.n increase in cmissions from a new facility othcr than a rcptrcemcnt facillty in rccordance with 

116.721(b), nor to the cdssion ofan air contsminant not previously emitted by and existing Mlity. 

This change allows replacement facilltles utilizing BACT to be installed under the/lexibk permit. 

At a minimum, TNRCCshould oonsider o mechanism for a streamllnedprocsss for owners or operators 

conshucfing replacemcnt/acilitles that meet BACT requfremenk. 

116.721 mendmcnts and AItmations 

(b)(2) AI1 flexible permit altentions whicb may involve a change in a gemral and special provisions 

contained In the flexiblc pennit, or advcrscly affect oontrol equipment performance must rdvc prior 

approval by the Executive Director. The Executive Dircftor shall be notified in writing of rcplrcemeat 

facilities utilizing bcst avallablc control technology (BACT) in accordmncc with 116.711(3) and all 

other flexible pennit alterations wilhin 10 days of irnplemcndng the change ........ 

(d)(2) Emission increases authorized by standard exemption at an existing facility cwcrcd by a flexiile 

permit &&iw may cause an wncrcase af the cmissions cap or individual emission limitation 

unless prohibited by pcrmft provision. 

Historically. permit limits can eflectlvely be inoreosed uslng standord exemptions. At this time the 

regulated communify, with the uncertainly olrhls new progronr, fs nor wlllfng to rellnqulsh the abiliv to 

make such changes in permit limits. As a compromlsc, the regulated oommuni~ suggests allowing 

increases in the permit limits subject to the right ofrhe agency to prohlbit such increnres on a om#-bycase b osls 

In our opinfon, there is no reason to remove the benefis achieved by slandurd exemptions simply bemuse 

soma degree ofJexlbili& is obtained In the Yexible permitm. The yexible penit" progrrrm should not 

be designed to "prwidenfledbili& in one area and to nremov~"~~~iblliryfrom existing TNRCC 

programs. 
PHILLIPS 66 COMPANY 

A DIVISION OF PnlLLlPs PETROLEUM COMPANY 

Borger Strategic Business Unit 

P.O. Box 271 

Borger, TX 79008 

October 20, 1994 Sublect: Comments on Proposed Amendments to Reg VI, 

"Flexible Permlt Prooram* 

Texaa Natural Resource Conservation Commlsslon 

Office of Air Quality 

Regulation Development Section 

P.0, Box 13087 

Austin, TX 7871 1-3087 

FAX: 51 2 239-1 500 

Thls Is In response to the TNRCC proposal to amend 30 TAC Chapter 11 6 to authotlze 

flexlble permits (19 TR 7334 - 7340). Phjlllps 66 Company's Borger Strategic 

Business Unit supports the TNRCC effort to develop ffexlble permits, and urges the 

TNRCC to proceed with issuance of the proposed regulation with certaln changes. 

Specific comments and suggestlons appear below. Pjease contact Glendon Jett st 

806 275-2126 if you have any questions about our comments or need further 

lnformatlon. 

The Borger Strategic 8usiness Unit Includes a refinery and NGL processing center, a 

specialty chemicals plant (Philtex), and an engineering plastics plant (Ryton). 

Compliance with envlronmentai regulations in general, and air regulations in particular, 

consumes considerable time and money. Air regulatlons further Impact the 

profltabllity of our plant, because we're limited in our abilty to improve our plant or 

respond to customer demands by ilmltations In our exlsting permits and the 

constraints of TNRCC Reg Vl (30 TAC Chapter 116). The necessity for obtaining 

permits or permlt amendments to make minor changes In our operations, even when 

emisslons are unchanged or decreased, is especially onerous. 

We endorse the concept of emisslons caps, under which physlcal and operational 

changes can be made as long as the cap 1s observed. We also support the concept 

of phased Implementation of BACT, so that capital for pollution control equipment can 

be budgeted and raised over a perlod of years. We believe that ernisslons caps 

coupled wkh phased BACT will promote a siqnlflcant improvement In alr quallty at a 

reasonable cost, while increasing the competitiveness of Texas industries, 
We understand that the new permit program wlll be developmental, and that changes 

In the regulattons will be desirable or necessary as experience Is gained wlth filing, 

processing and complying wlth flexible permits, Accordlngly, we support the 

proposed regulation as drafted with the following exceptions. 

Proposed 1 16.71 0(a) (1 1 would allow only one flexi'ble permit at an account slta, This 

appears reasonable for integrated petroleum facllIties and perhaps for large chemlcal 

plants, However, our Phlltex/Ryton Complex consists of a number of totally separate 

(nonlntegrated) unlts. While it appears desirable to cover some or all of these unlts 

under flexible permlts, making them fit into a slngle permit will needlessly complicate 

the development, processing and enforcement of the permit. We suggest that TNRCC 

allow the separate flexible perrnlts for nonintegrated units, 

We're concerned about how the Enhanced Monitoring rule (40 CFR 64) will be applled 

to flexlble permlts. If this rule will be applied to all emission pojnts that are part of an 

emissions cap (when the emfssions cap constkutss a "malor" source), it will ilmlt the 

utllity of the cap concept. It's conceivable that the monitoring wlll cost more than the 

controls under this scenario. We request some clarification that enhanced monltorlng 

will apply only to the soutces within an emissions cap which by themselves would be 

subject to the rule. Since proposed 40 CFR 64 contains language that seems to 

subject all sources wlthin an emissions cap to the rule, TNRCC will have to coordinate 

wlth EPA to make thls clarification. 

We don't understand the meaning or intent of the last sentence of proposed 

'I 16.71 6(b). We urge that this sentence be dropped altogether, 

Following are responses to issues specifically put forward by TNRCC: 

1) Should temporary shutdowns for up to 12 months be allowed wlthout reducing the 

emissions cap? Response: We thlnk temporary shutdowns in response to business 

condltlons should be allowed, In addjtlon, we thlnk that permanent shutdowns that 

are made speciflcalfy to achieve an emissions cap should be allowed, with no 

subsequent reduction in the cap. For example, In order to meet the NOx and CO cap, 

our most economical option may be to replace some old engines with electrlc or steam 

drivers.' Thls would yleld the same (probably more) envlronrnental benefit as 

retrofiting the engines wlth controls, but perhaps at a lower cost. The replacement 

power would be provlded either by our exlsting steam system (which is figured Into 

the cap) or an off-slte commercial power plant, elther of which provldes more efficient 

and less polluting energy, 'The shutdown of the engines should be recognized as a 

legitimate way to achleve the emisslon cap, 

2) What Is an appropriate amount of tlme to be considered a temporary shutdown? 

Response: We think shutdowns for at least up to two years should be allowed. Thls 

is consistent wlth current policy of examlnlng two previous years of operating and 

emlsslons data for setting baselines. Business cycles that influence such shutdowns 

usually last longer than a year, often longer than two years. Amending permlts in 
OCT-28-1994 14: 13 FROM 

response to business cycles would be lnefflcient for both TNRCC end industry. 

31 Should emlssiona caps be reset [e,g., lowered] to more closely reflect actual 

ernlssions during permit renewals? Response: We're very much opposed to thls. The 

emlssions caps In the flexible permits will be set based on .BACT. Companios should 

not be punished for achieving emission rates that are lower than BACT. Such a pollcy 

will promote a "use It or Lose ita mentality, and may actually encourage plents to emlt 

close to their limits in order to maintain flexibility. Currently, we prefer to operate 

with a comfortable margin and try to minimize emissions. If emisslons caps are ~oing 

to be reset during renewals, It should only be done to reflect the currentBACT, 

considering the age of the units, the technological and economic reasonableness, and 

off-site impacts of the existing emissions caps. 

4) Should emissions caps be edjusted for emissions reductions pursuant to the 

FCAA? Response: Thls appears reasonable. We would prefer it be done during perrnlt 

renewals, rather than having to go through an amendment exerclse every time a new 

federal rule affecting the plant Is issued. We understand that a flexible perrrlit does 

not exempt us from applicable federal and state regulations. 

51 Should emissions reductions resulting from instaliation of controls be allowed to 

be banked for purposes of use as offsets in nonattainment areas? Response: We 

befiove that emissions reductions undertaken to achieve the emissions cap, that are 

not otherwise required by state law under the SIP for the express purpose of achieving 

NAAQS's, should be sllowed as offsets for both PSD and nonattalnmont netting. 

Your favorable consideration of our comments will be greatly appreciated. In general, 

Phlllips also supports the positions of TCC and TMOGA on these issues. We do 

appreciate the efforts of TNRCC to streamline and rationalize the sir permitting 

process in Texas. 

Thurman Nance 

Complex Manager 
PHILLIPS 66 COMPANY 

A DIVISION OF PHILLIPS PETROLEUM COMPANY 

Sweeny Refinery & Petrochemical Complex 

P.O. BOX 866 - 

Stveeny, TX 77480 

October 19, .I994 

Texas Naturzl Resource Conservation Commission 

Office of Air Qualit), 

P.O. Box 13087 

Austin, TX 78711-3087 

BY FAX (512) 239-1500 

RE: Comments on proposed Amendments to Reg. VI, Subchapter G 

"FIexible Permit Program" 

Dear Agency Representative: 

Phillips Petroleum company, Sweeny Strategic Business Unit appreciates the opportunily to submit 

for your consideration, rhe following commenrs related to proposed amendments to Reg, VI, 

Subchapter G, "Flexible Permit Program". 

The Sweeny Business Unit includes a refine~y, petrochemica1 complex 2nd terminals which are 

affected by this regulation. 

Phillips Sweeny Complex commends the TKRCC for the proposal to increase the operational 

flexibility of Texas faciliries by adding an oprional flexible permit program. The ability to make 

operztionzl changes in a timely manner wi?h respect to market and competitive conditions is vital to 

our facilities. This proposal is hn excellent attempt to eliminate unnecessary constraints on our 

organization and operational delays, while assuring that emission limitations are met. 

We do have several comrnenrs, however, which we feel would improve the proposal and increase 

utilization of the program. Your consideration of the following comenrs is greatly appreciated. 

Eliminate the requirement for only one flexible permit per plant site or active account. The 

desire to consolidate ino as few permits zs possible is understandable, but we feel the 

program will have rhc greatest flexibility if facilities ca~ organize heir permits by 

functionally-reiated prccess units. For example, our Sweeny facility might desire to acquire 

separate permits for: ethylene units, NGL units, refinery units and the San Bernard Terminal 

These are dl currently in one TNRCC account. 

Ar a minimum, we would request the ability to align flexible pcrmjts with the Title V 

operating permits we will be acquiring. That is, allow one flexible permit per Reg Xll permit 

instead of per plant site or account. 
- 'Phillips strongly supports the allowance of temporary shutdowns without reducing/readjustlng 

the mission cap. We also feel that increasira rhe shutdown period to 2 years would improve 

flexibility and is reasonable for operations which depend more heavily 6n specific market 

conditions, such as small batch processes and specjalty chemicals. 

Emission caps should be reset at renewal only upon installation of additional required controls 

affecting cmissions within the cap. Facilities should not be penalized for operating below che 

established cap, particuIarly since the operating scenario in use may change as allowed by the 

permit. This is precisely the advantage of having a flexible permit; not having to amend or 

alter tbc permit upon changing operating scenarios. Actual cmissions should NOT bc used to 

alter emission Iimitauons or caps. This defeats the purpose of the flexible permit. 

Emission reductions resulting from the installation of controls should be allowed as offsets for 

PSD and nonattainrnent nerting and any other banking scenarios which are otherwise 

creditable. 

One area of concern which could derail the entire f! exible pennit program is the proposed 

requirement in 40 CFR Part 64 that Enhanced Monitoring be done on 4 sources within an 

emission cap if thc cap is "major" for that pollutant. Two suggestions which rnay "heIp" 

alleviate some concern (but not necessarily resolve all issu~ until Part 64 is final) are the 

following: 

1. In Ssaion 116.716(6), the intent of the second sentence is unclear. Our proposal is 

that cbe second sentence read . . . "In addition, an individual emission limitation may 

be established for a pollutant covered by an emission mp for any emission unit(s) 

selected by the applicantm. 

In light of the Part 64 requirement, the only apparent workable solution is to alIow the 

applicant to arrange any number of 'source caps" and individual emission limitations 

within the flexible permit. This would allow *e appIicant, for example, to establish a 

"source wpm for NO, for a number of small combustion sources which would .?a sum 

to the threshold quantity for Enhmed Monitoring and also have another "source cap" 

for other sources if the sac pollutant which would be major and requireEnhancd 

Monitoring. 

To be absoluteiy clear, it is imperative (in light of the Part 64 proposal) that the 

applicant be allowed to establisn any number of source caps and individual emission 

lirni2tions for a specific pollutant within the flexible pennit. 

TO require a facility to include all emissions of a pollutant in the sum yielding the 

'source cap" totaI will make the permit much less flexible an in some cases, unusable. 

2. A provision needs to be incIuded outlining how source. may be removed from the 

flexible permit (back into an NSR permit). This will be necessary if the Enhanced 

Monitoring provisions are not revised. The flexible permit should not require 

emission units to be "once-in-ztways-in" panicularly in light of the fact that it is an 

'qtional permitn. 

In Section 116.715 (c) (6), last senzence; please add "Requ.iredW before Infonnation. 
Phillips has pardcipated in TCC 2nd TMOGA work groups and futly supports the comments of those 

organizations. We appreciate the opportunity to participarc in the regulatory development process. 

Thank you for your consideration of these comments. Should you have any questions, please feel 

free co contact Jan Laughlin, (409) 491-2277. 

Very truly yours, 

PEELIPS PETROLEUM COMPANY 

Dan F. Hunter 

Enviro~xnental Manager 
.- :.-. 

I,C)NE S"jf64FE: . .. .. 

P. ~.:Hrii 193 1.. 

:Ir~%tia; T.&,( 78767 

(I)c~bb,ji. 2 1, ..19% . . 

J ef'f Saitis, SYI{. Progr am. 

Natural Hc.l~ource Comervation Camnliasic~i: 

Y. 0. Box 13687 _ .. 

Austh, Texas '7.87 2.1-3037 '&~

Re: Comments . . on Ropawd F'idble Permit Kdes for &g, W, Subchlp:ter G . .. . . .. 

Ilear Jeff: 

. - Issues, on Emissioll Caps -- 12 month shut down is mm, 'jiSrfically, 

most plant turrm~unds are tercporary hut doh hpring fn,& ii-kw..&$d'.fa . . 

perhaps 3 - 4'kerlcJ. 12 months is abaolu?ely too lo~.g tu be a te&~or$ijr..h&t down. 12 t . . 

months iic a xn&,ii>r sh~t down nad nut a minor temporary'c?r;iil, . \%k.caxi.ilo?t 6;tpport a 

definition of t+.~rrp~rary as being 12 months. 

. . Resetting enli,ssjorls cap! 'l'he -mu:w,:fo wr- kjogely 

resemble the actu3X emissions ovsr the life of the. 1l~:Si.Ble permit:gn . . bti xime uf' 

renewal. Trtichg or" emissia~is might.& sirnpl~r if the czp,iy. c;iiiaer .@:&g actual 

levels. Sniisions cap xbbuse mny occur ifit is not s'LF~c~!~ deGhe.&arid. ?qi;lated. : ., 

Readjustinorit of emissions raps!, 'J'NRCC, weds to re(~giG:h rn.~*uatn'lent of . . ... the cap snd'or-iudividud emissi~n ti,mitn'iicn reix';hee to the reducticrdy . ,.. rilwiciiitod 'by 

the FCAA. ' ;Is icng as the Reg. VI, subchapter Q rilies &.e. ~o~i~iterit;dt;h?,bc! . .. 

F(>;W. und &re is no conflict with fed. rags., thon 3, reariiuafl.;ieh.f 6fjt:t-i~'~ap i5 a god . . .. . idea. . . 

. . 

Bankir-lg o'f reducti~ns &om add-on controls nlu:jc be .stric~,i~ , , +: ~r;rfli:ia:t&& .,. .,.. if it is: to . ... 

be allowed it sl!,.bat, Of re&,, , . . . .ntfS as, ' .:. . . 

especially near clusters ind~i;lw E£oustonmi$ CIi&;?el ,P;;;;lL . . .. 

Arthur, Bec;umont, Orzinge, etc. Banking is a bad ides mtil at;b@nment ik . . . .. ' a.ccompl,isSed, ' 'In :sprue of these cornrrrunities, VJC wish to xik~i,,-e .v(r:i:E.h y6~.grtive 

concerns over aiivir~unexltal justice issues in thiv flexible gkm~,i<*pya~! lccause . . . 

too little attencion'ig p~id to cun1uI.t3tiye/are~-wide irrl'pactsi. Thiij 16 sa6th.e~ prin1al3~ 

reason far dissillowing any tanking until all mminuilitirs havocil&g :iiG.$lbc$ deseme 

under the law. . . 

. . Iiespor t R!jiy pours: .. . . . 

Neil J. .i;713rnlan: Ph.D. 

Clean -4ir Program Directcr . . 

Lone Stem maptdr of the Sierra Clui~ . . . . 

cc: Dr. C;r?o:ye Smith, Air Quaii,cy Chair? Sierra Club 
LONE STAR 

6014, Woodbrook 

Houston, TX 77008 

Oct 14, 1994 

Regulation Development. Div. 

TNRCC 

Dear Friends: 

Re: Subchapter G Flexible Permits. We would like to 

see some strengtheningof the proposal to better protect public 

health and welfare. 

We would propose 'a clear definition of "maximum expected 

capacity" . 

It is inappropriate to make reductions from an existing 

facility,. bank and sell the credits for sustained emission levels 

as a part of this alleged pollution reduction program, particularly 

in a non-attainment area. Where is the environmental benefit since 

the industry will be given a growth factor plus a 10% cap bonus 

and the current emissions will live on in another new source. 

We would propose that a line be added to: 116.717 Emissions 

reductions made under this permit will not be available for banking 

and sale or for netting outside the facility's flexible permit. 

Provision should be made to provide additional controls 

that may be mandated by changes to federal or state regulation 

and to.adjust the cap downward when rules are changed as for SIP 

revision or NESHAP requirement. We would suggest: 116.716 (c) 

The cap will be adjusted-downward when rules and regulations mandate 

new controls on sources under the cap. 

In review of permit renewals, 116.760 At the time of 

permit renewal, allowable emissions should be adjusted downward 

to 10% over the actual maximums observed over the previous permit 

period. 

Yoys truly, / 

- 

George Km. 

.- ., , - 

ith 

Chair, Air Quality Committee 

"When we try to pick out anything by itself. we find it hitched to everything else in the universe." John Muir 

@ recycled paper 
1275 K Street, N.W., Suite 400 

Washington, D.C. 200054006 

(202) 371-5200 

FAX (202) 371-1022 

October 21, 1994 

1;1 'I :I !\I 

i i '71 '1 fi OCT 2 6 1994 ly! The Society of the 

Ms. Mary Ruth Holder 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

12100 Park 35 Circle 

Austin, Texas 78753 

Plastics Industry, Inc. 

Dear Ms. Holder: 

. . a- ,.,, ,-;: , .,. .: . ,:3 

sc\- : ,..:.-.. -:: ra' ,:.. ',..Af:F: 

The Society of the Plastics Industry, Inc. (SPI) ' appreciates the opportunity to provide 

comments to the Texas Natural Resource Commission regarding Subchapter G. Flexible 

Permits, which affect the Health and Safety Code $ 382.017. 

~~!i:,-:+\:~..;- _ . -. .,,'.. .\.,:U'- .-_--- 

SPI supports the Department's efforts to streamline the permitting process as provided for in 

the proposed rulemaking concerning flexible permits. However, SPI requests that the 

Department provide further clarification on two points in order to assure affected facilities 

have the most complete understanding of the rulemaking as possible. 

The first point concerns $ 116.721 Amendments and Alterations, and in particular, the time 

frame for which a response by the Department would be expected for facilities seeking 

flexible permit alterations. In paragraph 2, the Department requires that "(t)he Executive 

Director shall be notified in writing of all other flexible permit alterations within 10 days of 

implementing the change." The Department does not provide for a timeframe for which the 

Executive Director must respond to such notification. Furthermore, the Department does not 

indicate whether or not such a facility would incur a penalty if the Administrator later 

determined that the permit alteration were not in line with the requirements of the flexible 

permit. SPI requests that the Department clarify the timeframe for response by the 

Executive Director (i.e. 7 or 14 days), as well as whether or not facilities would incur 

penalties, if the Executive Director determined that the change was not within the 

confines of permit requirements. A facility should be given the opportunity to amend or 

1 SPI is a 2,000 member not-for-profit trade organization representing all segments of the 

plastics industry in the United States. The Society's members include processors and 

manufacturers of plastics and plastics products, suppliers of raw materials, processors, and 

converters of plastic resins and manufacturers of accessory equipment for the plastics 

industry. Founded in 1937, SPI is the major national trade association of the plastics 

industry. 
The Society of the Plastics Industry 

Pg. 2 

make the changes in order to meet permit requirements. 

The second point concerns 5 116.711 (Z), Flexible Permit Application, and in particular, 

the provision concerning the measurement of emissions. The Department requests that 

facilities applying for a flexible permit will "have provisions for measuring the emissions 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.. . " While the 

Department's provision is written in a flexible manner, SPI would like the Department to 

, note that some facilities, such as batch processi~ig operations, may not be.able to measure 

their emissions at the stack or at sampling platforms. Emission factors, engineering 

calculations or other methods may be more appropriate for plastics processing. The 

Department should allow emissions to be calculated using emission factors, engineering 

calculations or alternative methods to measure and monitor emissions. 

SPI fully supports the Department's efforts and believes that clarification of these two issues 

will add further guidance to those facilities seeking a flexible permit. 

If you have any questions, please feel free to contact me at 202-371-5276. 

Sincerely, 

WiL2L.L- n % 

Maureen A. Healey 

Director, Federal Environment 

and 

Transportation Issues 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted bv 

No oral comments were presented 
FLEXIBLE PERMITS HEARING I 

Public Hearing Registration 

Texas Natural Resource Conservation Commission 

Location: Austin Date: October 3, 1994 

Making Oral 

Presentation 

(circle one) 

Name & Mailing Address Representing 

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Yes 

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2 FLEXIBLE PERMITS HEARING 

- 

Public Hearing Registration 

Texas Natural Resource Conservation Commission 

Location: Austin Date: October 3, 1994 

Name & Mailing Address 

EUILE L. F~cIA~E 

7610 '?KuWtJV 

OW9 75247 

Yes 

yes 'E 

Yes 0 

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Yes No 

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fi&~ K 
EVALUATION OF

TESTIMONY
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 1 of 67 

The Texas Natural ~esource Conservation Commission (TNRCC or 

Commission) adopts new 5116.13, concerning Flexible Permit 

Definitions, an amendment to 5116.110, concerning Applicability, 

and a new Subchapter GI Flexible Permits, containing new 

§5116.710, 116.711, 116.714-116.18, 116.720-116.722, 116.730, 

116.740, 116.750, and 116.760. Sections 116.13, 116.710, 116.711, 

and 116.716 are adopted with changes to the proposed text as 

published in the September 20, 1994, issue of the Texas Register 

(19 TexReg 7334). Sections 116.110, 116.714, 116.715, 116.717, 

116.718, 116.720-116.722, 116.730, 116.740, 116.750, and 116.760 

are adopted without changes and will not be republished. 

The new S116.13 adds definitions that relate to flexible permits, 

and the revision to 5116.110 adds reference to flexible permits as 

an applicable requirement. The new Subchapter G has been developed 

in response to direction from the Commission at the January 21, 

1994 policy agenda meeting. The proposal was developed after 

considering the position papers presented by industry, environmental groups, and local programs under the supervision of Task 

Force 21. The new subchapter will create a new type of permit 

called a flexible permit. The flexible permit will function as an 

optional alternative to the preconstruction permits that are now 

authorized in Subchapter B, concerning New Source Review Permits. 

The flexible permit is designed to exchange flexibility for 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 2 of 67 

emission reductions with the final goal being a well-controlled 

facility. 

In the proposed rule preamble, the TNRCC staff requested comments 

on the following specific issues: in §116.716(c), temporary shutdowns be allowed for up to 12 months without reducing the emission 

cap and is 12 months an appropriate amount of time for a shutdown 

to be considered temporary; should the emission cap more closely 

reflect the actual emissions over the life of the flexible permit 

at time of renewal; should readjustment of the emissions cap and/or 

individual emission limitation be required as a result of emission 

reduction activities required by rules pursuant to the Federal 

Clean Air Act (FCAA); and should the rules allow emission 

reductions resulting fromthe installation of controls to be banked 

for purposes of use as offsets in nonattainment areas. 

A public hearing on this proposal was held on October 3, 1994, in 

Austin. Written testimony was received from the following 

commenters: Amoco Production Company; the United States 

Environmental Protection Agency; Exxon Company USA; Phillips 66 

Company - Sweeny Refinery; Phillips 66 Company - Borger Facility; 

Society of the Plastics Industry (SPI); Texas Mid-continent Oil & 

Gas Association; Eastman Chemical Company; Houston Lighting & Power 

and Texas Center for Policy Studies. Amoco's comments represent 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 3 of 67 

the Task Force 21 Air 1ssues Subgroup that addressed the flexible 

permits issue. Galveston Houston Association for Smog Prevention 

and Sierra Club - Austin and Houston made specific comments and 

suggestions, but did not generally support or oppose adoption of 

these rules. 

The followins discussion addresses seneral comments. 

One commenter stated that flexible permits should allow emission 

limits to be established on a pollutant-by-pollutant basis. If 

only one flexible permit per site is allowed, then reopening of the 

permit for modifications should be limited to review of the 

facilities affected by the change. 

The rules provide that emission limits will be established on a 

pollutant-by-pollutant basis, Each pollutant for which flexibility 

is sought will have an emission limit established; either an 

emission cap or an individual emission limitation. All other 

pollutants will be restricted to the previous permit allowable or 

grandfathered rates, When multiple facilities have been 

consolidated into a single permit, and the consolidated permit is 

reopened for consideration of an amendment, relating to one or more 

facilities authorized by that permit, the permit is not considered 

reopened with respect to facilities for which an amendment, 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 4 of 67 

revision, or modification is not sought as provided in the Texas 

Clean Air Act (TCAA) , 9382.0511 (e) . 

A commenter noted that the ability to claim standard exemptions 

should be retained under the flexible permit. 

The rules have a very limited restriction on the ability to claim 

standard exemption. There is no restriction for new facilities; a 

new facility may be constructed under standard exemption, but it 

will not be included in the flexible permit unless a permit 

amendment is requested to do so. The rules also allow a facility 

included in the flexible permit to claim a standard exemption, 

provided that the emissions from the exempt facility do not cause 

an exceedence of the emissions cap or individual emission 

limitation. Any increase above the emission cap or individual 

emission limitation, whether by standard exemption or otherwise, is 

a significant increase which requires a permit review. Allowing 

the emissions cap to float upward with each new standard exemption 

will eventually invalidate the initial permit review. The 

Commission must maintain the ability to determine that the 

facilities under the flexible permit will comply with all existing 

rules and not cause an ambient impact problem. 

Another commenter encouraged TNRCC to continue coordinating with 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 5 of 67 

the national new source review committee for future Chapter 116 

revisions to assure consistency with the federal regulations. 

The TNRCC intends to continue coordinating any needed revisions to 

the flexible permit rules to be consistent with any changes to the 

federal Prevention of Significant Deterioration (PSD) and 

nonattainment review programs. 

One commenter made several general comments on the proposed rules. 

First, that the rules should allow more than one flexible permit 

per site, since some large facilities may wish to combine 

functionally related process units into one permit. Second, 

flexible permits should parallel the Title V program. Finally, the 

rules should contain a provision outlining how sources may be 

removed from a flexible permit. Since this action may be needed to 

resolve enhanced monitoring requirements if the enhanced monitoring 

provisions are not revised. 

The staff's original proposal to the Commission, which initiated 

the flexible permit rulemaking process was based on the premise 

that only one flexible permit would be allowed per site. As 

discussed in the proposed rule preamble, similar process units may 

be combined by creating separate emissions caps under the flexible 

permit. The Title V program in Texas has been established as a 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 6 of 67 

separate permit, not combined with the state new source review 

program. Therefore, it would not be appropriate to combine 

flexible permits with Title V. A permittee may remove a facility 

from a flexible permit by requesting an amendment or alteration of 

the flexible permit. Then, separate Chapter 116 authorization 

would be required for the facility removed from the flexible 

permit. 

One commenter suggested clarification of the applicability of the 

enhanced monitoring rules under 40 Code of Federal Regulations 

(CFR) Part 64 to the flexible permit. The commenter argued that if 

the federal rule is applied to all emission points under an 

emission cap, it could result in such excessive monitoring costs 

that the flexible permit would not be economically feasible. 

The applicability of the enhanced monitoring rules under 40 CFR 

Part 64 is not within the control of the TNRCC. The commenter did 

not provide any support for its argument related to monitoring 

costs. his issue is beyond the scope of the proposed rules. 

Another commenter stated that a definition of maximum expected 

capacity is needed. 

The Commission believes that the term "expected maximum capacitym 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 7 of 67 

is adequately defined in 5116.13. 

A commenter stated that the proposed rules go far beyond the scope 

of the Task Force 21 work group which originally conceived of the 

flexible permit concept. The commenter argued that there was no 

intention in the original work group to include new facilities in 

the flexible permit. Public notice and opportunity for hearings on 

each flexible permit is the only way to compensate for this action. 

The rule language proposed is within the scope of the Task Force 21 

Workgroup as well as the proposal made by staff to the Commission. 

However, consensus was not reached by the workgroup on all items. 

New facilities were included because it was generally felt that to 

exclude them from the flexible permit would not be equitable to 

facilities that are already well-controlled. Public notice is 

provided for within the rule language. 

A commenter stated that the original mandate of the Task Force 21 

work group was to examine rules that would provide incentives for 

companies to improve controls at grandfather facilities while 

providing for increased protection of the environment and human 

health. The commenter stated that TNRCC has exceeded this mandate 

without demonstrating that these changes are necessary or in the 

public interest. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 8 of 67 

See the response to the preceding comment. The Commission would 

reply that the public interest will continue to be served by this 

new permitting mechanism, since new facilities are required to meet 

Best Available Control Technology (BACT) and demonstrate acceptable 

off-site impacts. The Commission believes that the biggest benefit 

to the state is the reductions achieved by controlling older 

grandfathered facilities. 

One commenter stated that several aspects of the proposed rules 

violate state law. Examples are emission caps, allowing new 

facilities to obtain flexible permits, and failure to require BACT 

for each facility as defined in the TCAA. 

The Commission has reviewed the state law relative to these issues 

and has determined that the proposed rule language complies with 

the requirements of the TCAA. There is no restriction in the TCAA 

on the use of an emission cap in an air quality permit. The TCAA 

requires new facilities to obtain a permit and authorizes TNRCC to 

issue permits for multiple facilities at the same site. The 

proposed rules require that the facility, group of facilities, or 

account utilize BACT as required by the TCAA. The permitting of 

multiple facilities, as opposed to a single facility, raises 

additional issues and complications. The TCAA allows the TNRCC to 

develop different requirements andmethodologies to account for the 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 9 of 67 

additional complexities found when permitting multiple facilities. 

A commenter stated that in order to demonstrate compliance with the 

proposed rules, it will be necessary to simultaneously and 

accurately measure emissions from multiple sources to determine, 

for any point in time, that the total emissions are below the cap. 

The only way to assure compliance with the cap is to install 

continuous monitors. The proposed rules do not require Continuous 

Emission Monitors (CEMs). 

The rule language does not require CEMs. The Commission believes 

that engineering calculations based on measured process variables, 

parametric or predictive monitoring, stack monitoring, or stack 

testing are all appropriate methods to demonstrate compliance with 

the emission cap or individual emission limits. However, the 

Commission intends to require appropriate methods and in some cases 

CEMS may be required to ensure compliance with all caps and 

individual emission limitations. 

The followins discussion addresses the responses to TNRCCfs issues 

list for which TNRCC solicited comments in the proposed rule 

preamble. 

Response to the TNRCC request for comments resardins temporaw 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 10 of 67 

shutdowns is as follows. 

A commenter noted that the 12-month allowance for temporary 

shutdowns without adjusting the emissions cap is reasonable and 

should be retained in the final rule. Another commenter stated 

that the temporary shutdown provision should be expanded beyond 12 

months, and recommended the revision of 8116.716 (c) to specify that 

shutdowns less than 12 months will not require adjustment of the 

emission cap, but that shutdowns beyond 12 months may require 

adjustment. Two commenters stated that the shutdown period should 

be extended to two years. The following reasons were given to 

support this position. It will improve flexibility for operations 

which depend on market conditions, such as batch processes and 

specialty chemicals. Business cycles that influence such shutdowns 

usually last longer than one year. A two-year shutdown would be 

consistent with the current policy of examining two previous years 

of operating and emissions data for setting baselines. Also, 

permanent shutdowns that are made specifically to achieve the cap 

should be allowed without reducing the cap. Another commenter 

stated that a 12-month shutdown is too long to be considered 

temporary and should be considered a major shutdown. 

For purposes of this subchapter, the Commission supports a 12-month 

time frame in determining whether a shutdown is temporary or 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 11 of 67 

permanent. This period of time is sufficient to include most 

maintenance activities and shutdowns due to upsets without 

requiring submissions of excessive paperwork. This does not 

relieve the permit holder of the responsibility of reporting under 

the appropriate 30 TAC Chapter 101 rules. The Commission does not 

agree that a shutdown lasting more than 12 months should be 

considered temporary. The Commission has considered all of the 

comments regarding this issue and believes that 12 months is the 

most reasonable period of time to allow for a temporary shutdown. 

Response to the TNRCC recruest for comments reqardinq reducinq 

allowable emissions to actual emissions at renewal is as follows. 

One commenter stated that resetting emission caps during permit 

'renewal is, inconsistent with the goals of flexible permits. 

Increases in actual emissions would occur only at well-controlled 

facilities, with acceptable impacts. Another commenter stated that 

to lower the emission cap would not be consistent with the concept 

of a flexible permit, because the cap is the mechanism that 

provides flexibility. A commenter stated that emission caps should 

be reset only upon installation of additional required controls on 

sources within the cap. Sources should not be penalized for 

operating within the cap. This defeats the purpose of the flexible 

permit. One commenter stated that companies should not be punished 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116. 

Page 12 of 67 

for achieving emission rates that are lower than BACT which is used 

to establish the cap in the first place. A "use it or lose itN 

policy may encourage plants to emit close to their limits to retain 

flexibility and avoid a reduction in the cap. Caps should only be 

reset during permit renewal to reflect changes in BACT. 

One commenter stated that the emission cap must be reset at renewal 

to more closely resemble actual emissions over the life of the 

permit. Emissions cap abuse may occur if it is not strictly 

defined and enforced. 

The Commission does not believe that an automatic reduction of the 

emission cap or individual emission limitation is warranted at 

renewal. However, the Commission does believe that it would be 

appropriate at renewal to review the emission cap and individual 

emission limitation to evaluate whether it has been set at a proper 

level, in accordance with the TNRCC air permit renewal guidance 

document. Automatically reducing the emission cap or individual 

emission limitation at renewal would unnecessarily limit the 

flexibility this program was developed to provide. The emission 

cap and individual emission limitations are subject to an impacts 

review at the time of permit issuance and renewal. Since the use 

of standard exemptions cannot be used to increase the emission cap, 

any additional increas'e in the emission cap will require a permit 

amendment and be subject to a health effects review at the time a 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 13 of 67 

permit is amended. 

Response to the TNRCC recruest for comments resardins adiustments in 

.emission caps for reductions rewired by FCAA rules is as follows. 

One commenter stated that if a facility already complies with the 

rule, no further reduction should be required. However, if a 

reduction is needed for compliance, then the facility should be 

allowed to submit a request to adjust the emission cap 60 days 

prior to the compliance date of the federal rule. A commenter 

stated that the permittee should be required to submit a proposal 

60 days prior to the effective date of the federal rule to readjust 

the cap in compliance with the new federal standard. Another 

commenter stated that this appears to be a reasonable requirement, 

but that it should be performed at permit renewal time to avoid 

frequent amendments whenever a federal rule is changed or added. 

A commenter stated that the cap should be adjusted relative to 

emission reductions mandated by the FCAA. 

The Commission believes that the emission cap should be adjusted 

for emission reductions required by new regulations or changes to 

existing regulations. Such reductions are generally intended to 

address specific air quality concerns where an additional reduction 

in the amount of emissions is needed to improve or maintain air 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 14 of 67 

quality. If the emission cap is not reduced, then the emissions 

reductions required by rule still would be available for other 

facilities under the cap and no real reduction in emissions would 

be achieved. Such a result would entirely defeat the purpose of 

the new regulation and would hinder the state's ability to address 

an air quality concern, including bringing all nonattainment areas 

into compliance by the specified deadlines. The adjustment to the 

emission cap should be made at the time the permit is amended, or 

within 60 days of making the change if no permit amendment is 

required. 

Response to the TNRCC reauest for comments resardins whether 

reductions from existins facilities should be available for bankinq 

credits applicable to nonattainment area offsets is as follows. 

One commenter believes that such credits should be allowed because 

they provide a greater than one-for-one reduction. Also, 

nonattainment areas need a mechanism for generating offsets to 

allow continued development. Another commenter stated that 

emission reductions from installation of controls should be allowed 

as offsets for PSD and nonattainment netting and other banking 

rules. A commenter stated simply that such credits should be 

allowed. Another commenter stated that the banking of emission 

reductions in nonattainment areas should not be allowed. That 
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commenter is concerned'over environmental justice issues, because 

too little attention is given to cumulative area-wide issues. 

The Commission feels that it is not appropriate to treat emission 

reductions obtained through the flexible permit process any 

different than those obtained under the current regulatory process. 

If the reductions meet the creditability criteria specified in 

applicable regulations, the reductions should be available for use. 

The followincr discussion addresses comments resardins R116.13, 

Flexible Permit Definitions. 

One commenter suggested additional language for the definition of 

individual emission limitation in 5116.13. The definition should 

be revised to clarify that it will provide for future operational 

and physical flexibility, and that specific air contaminants and 

facilities not modified in a flexible permit are limited to their 

grandfathered rate or permit allowable. 

It may be possible that a modification to a facility will affect 

only a single pollutant, such as a change in sulphur content in the 

fuel to a combustion device. The permit for such a modification 

would authorize the change and provide new permit limits for this 

pollutant. However, other pollutants, such as oxides of nitrogen 
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(NO,) and carbon monoxide (CO) may remain unaffected by this 

modification and the existing limitations for these pollutants 

would remain unchanged. When such a modification is authorized by 

a flexible permit, the authorization and limits for those 

unaffected pollutants are not included in the flexible permit. 

Thus, it is possible that, for some facilities, certain pollutants 

will be covered by a flexible permit and the unchanged pollutants 

will be covered by the existing authorization. No change to the 

rule language is needed to support this interpretation. 

One commenter suggested a minor correction to the definition of 

emissions cap in 8116.13 by dropping the l1sI1 from the word 

nemissionsN to be consistent with the use of the term throughout 

the rule. 

The Commission agrees with the proposed change and has revised the 

rule language as suggested. 

A commenter suggested that the term "insignificant emission factorn 

be defined in S116.13. 

The term "insignificant emission factor" is a factor to allow for 

an insignificant emission increase, not to exceed 9.0%, in the 

calculation of the emission cap to provide for flexibility if such 
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emissions will not result in adverse off-property impacts. The 

Commission believes that the term is defined in context by its use 

A commenter suggested that any differences between the terms 

"facility" and "individual facility" be clarified in 5116.13. 

The term Itindividual facilityn in 5116.13 is intended to make clear 

that an individual emission limitation applies to a single facility 

as opposed to an emission cap applying to multiple facilities. 

In addition, the requirement in 5116.711 (3) to utilize BACT for 

existing facilities will be based on a facility, a group of 

facilities, or an account. The term "individual facility" in the 

last sentence of 5116.713(3) is needed to make clear that BACT for 

new facilities may not be demonstrated on a group of facilities or 

account basis, but must be demonstrated for each new facility. The 

Commission does not believe that the suggested change is needed. 

The followins discussion addresses comments resardins 8116.110, 

Applicabilitv. 

One commenter expressed concern about the impact of the addition of 

flexible permits in S116.110. The commenter argued that there 
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could be serious enforcement problems for this type of permit, and 

that there is a potential for emissions to creep upward due to 

determinations of insignificant emission factors and cumulative 

impacts from nearby sources. Also, the permit term .for all 

flexible permits should be limited to five years in subsection (c) . 

The addition of flexible permits in 1116.110 makes it clear that a 

flexible permit is one of several types of permits that can be 

obtained to satisfy the TCAA. The Commission disagrees that 

flexible permits will create serious enforcement problems due to 

emission creep or cumulative impacts. Emissions cannot exceed the 

emission cap or individual emission limitation without amending the 

flexible permit and subjecting the changes to a permit review. The 

TCAA provides that permits are to be renewed every ten years. 

Except Itfor causen a shorter term may be imposed. The Commission 

sees no reason to limit the term of all flexible permits to five 

years. If a justifiable cause exists for a particular permit, the 

Commission intends to limit the term of the permit as appropriate. 

The followins discussion addresses comments resardins 8116.710. 

Ap~licabilitv. 

A commenter suggested revising §116.710(a) (1) to allow for more 

than one flexible permit per site for nonintegrated units. 
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AS stated previously, the staff's original proposal to the 

Commission, which initiated the flexible permit rulemaking process, 

was based on the premise that only one flexible permit would be 

allowed per site. As discussed in the proposed rule preamble, 

similar process units may be combined by creating separate 

emissions caps under the flexible permit. Due to potential 

complexities in the compliance and permitting areas, as well as the 

uncertainties of this new program, the Commission strongly believes 

that the concept of a single flexible permit should be retained in 

the rule. 

One commenter suggested revising §116.710(a) to make it clear that 

a flexible permit can only cover sources at one geographic 

location. 

The Commission agrees that there should be only one flexible permit 

per site. The Commission agrees to the suggested clarification by 

adding new paragraph (4) in §116.710(a). 

A commenter contended that S116.710 (a) (3) should not allow new 

sources to obtain a flexible permit, especially in nonattainment 

areas. 

New facilities were included because it was generally felt that to 
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exclude them from flexible permits would not be equitable to 

facilities that are already well-controlled. The Commission 

believes that the biggest benefit to the state is the reductions 

achieved by controlling older, grandfathered facilities. The 

Commission never envisioned that the flexible permit process would 

be limited to older facilities. The Commission feels that the 

public interest will continue to be served by this new permitting 

mechanism since new facilities are required to meet BACT and 

acceptable impacts. The flexible permits system is designed to 

address concerns in nonattainment areas. 

The followins discussion addresses comments resardins 5116.711, 

Flexible Permit Application. 

One commenter suggested that 5116.711 (1) specify that there can be 

no exceedance of the National Ambient Air Quality Standards or PSD 

increments and that it include requirements to address other air 

quality impacts under the FCAA. 

No change to the rule is necessary. These issues are already 

addressed by L116.711 (I), (7), and (8) . 

A commenter suggested revising §116.711(2) to allow calculation of 

emission rates as an alternative to stack testing. 
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The stack testing provision of §116.711(2) does not require stack 

sampling as the sole means of compliance determination. For the 

performance demonstration, engineering calculations and other 

methods can be suitable substitutes to stack testing, as stated in 

1116.711 (6) . The Commission will work with the applicant to 

determine the best means to demonstrate compliance. Section 

116.711(2) allows the Executive Director to require stack sampling 

as deemed appropriate. Therefore, the proposed rule language 

already addresses the concerns raised by this commenter. 

A commenter suggested the following minor changes to §116.711(2), 

(3), and (6) for consistency with other sections of the rule: add 

the word significant " be£ ore "air contaminants" in paragraph (2) ; 

add the word flproposedw be£ ore acility" in paragraph (3) ; and add 

the word vapplicationu after ltpermit" at the end of the first 

sentence in paragraph (6) . 

The term nsignificantll has a specific meaning within this 

subchapter. It would be inappropriate to use this term in 

paragraph (2), since it may restrict the agency's ability to 

require a demonstration of compliance. The Commission agrees with 

the second comment to add the word nproposedm in paragraph (3), and 

has made the suggested change. However, nproposedw means 

facilities proposed for inclusion in the flexible permit. 
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Regarding the third comment, the first sentence in paragraph (6) 

requires demonstration that the source will achieve the performance 

specified in the permit application. The second section of this 

sentence requires the applicant to submit additional information to 

demonstrate the source will achieve the performance specified in 

the permit. The commission feels these two performance 

demonstrations are reasonable and necessary and is opposed to the 

suggested change. 

A commenter suggested revising S116 -711 (3) to clarify that BACT 

applies to all air contaminants for new facilities covered by the 

flexible permit. Existing facilities must only apply BACT for the 

air contaminants and facilities that are given operational 

flexibility under the flexible permit. 

The TNRCC agrees that §116.711(3) applies to all air contaminants 

for new facilities. Additionally, existing facilities must apply 

BACT only for the air contaminants and facilities that are given 

operational flexibility. However, a demonstration must be made 

that the facility is not modified for the other pollutants and the 

applicant must be able to make that demonstration on an ongoing 

basis. No rule change is necessary to allow for that 

interpretation. 
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 he commenter also suggested the revision of §116.711(4) and (5) to 

state that individual sources subject to New Source Performance 

Standards (NSPS) or National Emission Standards for Hazardous Air 

Pollutants (NESHAP) standards will be considered in compliance with 

the applicable standards if emissions from all sources covered by 

the permit are below the emission cap. 

The TNRCC does not have the authority to relieve a permittee from 

meeting applicable federal requirements. 

One commenter made several comments regarding S116.711. The 

commenter stated that: paragraph (1) should consider cumulative 

impacts at a facility; paragraph (2) should require actual 

measurement of emissions; paragraphs (4) and (5) should not allow 

exceedences of NSPS or NESHAP standards; paragraph (6) should not 

allow predictive emissions monitoring; actual emission measuring 

instruments are needed to accurately measure the emissions; 

paragraph (9) should consider cumulative impacts from the facility 

in modeling requirements; and define potential maximum production 

capacity in paragraph (11) . 

Paragraph (1) requires a health review to be conducted for all 

pollutants brought into the permit. Paragraph (2) does require 

actual measurement of emissions when the Executive Director 
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determines it is necessary. Paragraphs (4) and (5) require 

compliance with all applicable NSPS and NESHAPS. The Commission 

does not agree with the comment regarding paragraph (6), since 

engineering calculations and predictive emissions monitoring are 

acceptable methods for determining compliance in many cases. See 

comments in reference to paragraph (1) for comment regarding 

paragraph (9). Potential maximum production capacity should be the 

expected maximum capacity as defined in S116.13. The Commission 

agrees to revise the term in paragraph (11) from "potential" to 

'Bexpectedfl maximum capacity . 

One commenter suggested revising §116.711(6) to clarify that an 

applicant must demonstrate full compliance with all applicable 

rules and statutory requirements before a permit can be issued. 

The commenter recommended that §116.711(9) be revised to clarify 

that monitoring will not replace modeling and that modeling will be 

required in all appropriate cases. 

Section 116.711 (1) requires a demonstration that an applicant will 

comply with all rules and regulations of the TNRCC and with the 

intent of the TCAA. The Commission feels that acceptable 

monitoring data is a valid mechanism for demonstrating approvable 

impacts. The proposed language does not preclude the Commission 

from requesting modeling when appropriate. 
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A commenter suggested revising §116.711(10) to clarify that 

emission limits can be established on a pollutant-by-pollutant 

basis as specified by the applicant. Also, the commenter contended 

that emission rate calculations do not need to be provided for 

unmodified sources under application for an amendment. 

The suggested change is not necessary or appropriate. Section 

116.711 (10) specifies information to be included in a permit 

application. Section 116.716 clearly provides that both emission 

caps and individual emission limitations will be established for 

specific pollutants. The TNRCC agrees that emission rate 

calculations do not need to be provided for unmodified sources. 

However, information may be requested to demonstrate that these 

sources are not being modified. Therefore, the Commission opposes 

the suggested language that would preclude requesting such 

information. 

The followins discussion addresses comments resardins ,5116.715, 

General and Special Conditions. 

A commenter suggested revising 5116.715 to require the special 

provisions of a permit to specify the terms for readjustment of an 

emissions cap whenever a unit is removed from service while under 

schedule to install emission controls. 
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The Commission agrees 'that the terms for readjustment of the cap 

should appear in the special conditions of the permit and will 

include such terms on a permit-by-permit basis. However, if they 

are not included in a permit, the rule language addresses how the 

Commission intends to readjust the cap. The amount of reduction in 

the emission cap and the length of time of the readjustment should 

not be left to negotiations on a case-by-case basis. No change to 

the proposed rule language is needed. 

One commenter made several comments regarding S116.715: in 

subsection (a) , define significant impact and make executive 

director.approva1 and public input mandatory rather than optional; 

include local programs in the startup notification in subsection 

(c) (3) ; provide for public input in determining equivalency of 

methods in subsection (c) (5) ; recordkeeping in subsection (c) (6) 

should be required for five years; there was no table provided as 

referenced in subsection (c) (7) ; and define reasonable times in 

subsection (c) (10) . 

Due to the number of compounds and variety of circumstances that 

can be involved, it is impossible to define significant impact with 

any more specificity. All permits do not require a special 

condition restricting the use of standard exemptions or standard 

permits beyond the restriction on the use of a standard exemption 
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in §116.721(d). Standard exemptions and standard permits are 

subject to public notice during rulemaking. The rule language does 

state that all local programs will be notified of start-up 

conditions. The Commission will review and perform the evaluations 

of equivalency of methods. The two-year requirement for 

recordkeeping is being kept to maintain consistency with current 

practices. The agency maintains its own records regarding the 

compliance history of a facility that are sufficient for the 

compliance history review. The nEmission Sources - Emissions Caps 

and Individual Emission Limitations" table is not part of the rule 

language, but will be included in a final permit. The TCAA, 

S382.015 provides that the TNRCC may enter public or private 

property at a reasonable time to conduct inspections and 

investigations related to air quality. 

A commenter suggested revising §116.715(c) (6) by adding "requiredI1 

before "informationN in the last sentence. 

The Commission feels the change would not enhance the paragraph's 

intent and, possibly could confuse the reader. 

A commenter suggested revising §116.716(b) (erroneously stated as 

§116.716(6) to allow individual emission limitations to be 

established for any emission unit covered by the permit. This may 
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help alleviate the concerns that the new 40 CFR Part 64 will 

require enhanced monitoring on all sources within an emission cap 

if the cap is major for a given pollutant. It would allow an 

applicant to arrange a source cap for a number of small sources 

that would not sum up to the threshold that triggers enhanced 

monitoring. 

Based on the Commission's current understanding of the proposed 

requirements in 40 CFR Part 64, this comment does not accurately 

reflect the proposed requirements for enhanced monitoring. Thus, 

the Commission does not believe that the suggested changes are 

necessary. 

One commenter suggested revising 8116.715 (c) (8) to be consistent 

with the recommended changes to 8116.716 (c) , i. e., allowing 

shutdowns in excess of 12 months without readjusting the cap. 

Another commenter stated that paragraph (8) is an essential part of 

the rules and must be retained. 

These subdivisions were intended to address separate issues and do 

not need to be revised for consistency. Section 116.715(c) (8) 

addresses readjustment of an emission cap for a facility subject to 

scheduled installation of controls. This paragraph addresses the 

difference in the emissions cap before and after installation of 
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emission controls. Subsection (c) addresses adjustments to the 

emission cap for shutdowns that exceed 12 months' duration. The 

Commission agrees with the comment that paragraph (8) should be 

retained in the adopted rule. 

The followins discussion addresses comments resardins 5116.716, 

Emission Caps and Individual Emission Limitations. 

Two commenters suggested deleting 5116.716 (b) . The sentence could 

be interpreted to disallow increases in emissions above actual 

levels even if those increases are within the emission cap or 

individual allowable levels. That would be inconsistent with the 

concept of a flexible permit. Since a facility under flexible 

permit will be required to meet BACT and impacts review, there 

should be no concern about "emission levels appropriate for the 

proposed control^.^ 

The intent of the last sentence of 1116.716 (b) is to place 

additional restrictions on a facility when proposed controls are 

not BACT for the facility when operated at its maximum potential 

capacity. For example, BACT for a sulfur recovery unit (SRU) 

operating at more than two long tons of sulfur per day is currently 

more stringent than for an SRU operating at less than two long tons 

of sulfur per day. If an applicant represented expected maximum 
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sulfur production of less than two long tons per day, TNRCC would 

include an individual emission limitation for the SRU to ensure 

that production could not exceed two long tons of sulfur per day 

without installation of appropriate control technology. Additional 

restrictions could also be appropriate when unacceptable impacts 

would result if the facility used all of the flexibility provided 

by the cap. Such an individual emission limitation would not 

necessarily prohibit an increase in actual emissions, although it 

would prohibit an increase in emissions above the individual 

emission limitation which could prevent that specific facility from 

using any available emissions under the emission cap. 

A commenter suggested adding language to §116.716(b) that would 

allow an applicant to limit its expected maximum capacity if the 

applicant desires to use that capacity to calculate an individual 

emission limit. 

The expected maximum capacity of a facility is determined in part 

by the planned operation of that facility and is totally within the 

control of the applicant. (See the response to the preceding 

comment for the intent of this language.) 

One commenter suggested revising 8116.716 (c) to require that the 

emissions cap be adjusted downward when rules and regulations 
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mandate new controls on sources under the cap. Another commenter 

suggested revising subsection (c) to allow only one month for 

temporary shutdowns unless the permittee can demonstrate that there 

is no alternative to a longer shutdown. According to that 

commenter, the existing cap should only be retained for a minimal 

shutdown, and in no event should it extend beyond a 12-month 

shutdown. A commenter suggested a revision to subsection (c) for 

clarification that the emission cap is adjusted only for a new 

source added under the cap, and stated that existing sources in the 

cap do not require modification. 

The Commission has added a new subsection (e) to clarify the 

requirement to adjust the emission cap when a facility, under a 

flexible permit, is affected by a change to an existing regulation. 

As stated in the response to the issues list portion of this 

preamble, the Commission has considered all of the comments 

regarding the temporary shutdown issue and believes that 12 months 

is an appropriate period for a shutdown allowance. In most cases 

when a new facility is added, the emission cap will be increased as 

suggested by the commenter. However, the current language provides 

the Commission the needed flexibility to adjust the cap as 

appropriate to account for all possible cases. 

One commenter suggested revising §116.716(d) by adding the phrase 
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"For the specific air contaminants and facilities with provisions 

for operational or physical flexibilityM at the beginning of the 

first sentence. 

All pollutants brought into the flexible permit will be afforded 

operational and physical flexibility. For those pollutants for 

which flexibility is not sought, they will remain outside the 

flexible permit. Therefore, the Commission believes the proposed 

change is not needed. 

A commenter stated that 8116.716 does not address the issue of 

short term emission caps which is mentioned in the preamble. This 

issue should be clarified in the rule. 

The rule allows for the use of any units or averaging times that 

are appropriate for the compounds and resulting off-site impacts. 

The Commission expects to continue the current practice of having 

both short term and long term emission limits. 

One commenter stated that the language in 5116.716 (d) seems to 

require installation of a level of controls referred to as "BACT 

plus 9.0%." This may become too stringent a requirement for older 

and grandfathered units. This appears to be a requirement to 

install BACT on all facilities included in the flexible permit. 
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Such a requirement would impose such an unreasonable economic 

burden on an applicant, that a flexible permit may not be a viable 

option. This requirement should be reevaluated within one year of 

adoption to determine if it is reasonable. Another commenter 

stated the opposite position that the 9.0% emission allowance in 

subsection (dl is too high. The commenter believes that the 

cumulative impacts for a major source could be great. 

The flexible permits program is an optional program that may not be 

suitable for all facilities. The TCAA requires BACT for all new 

and modified facilities. These rules allow for the calculation of 

an emissions cap that includes an insignificant emissions factor to 

provide flexibility. The applicant, then, may propose controls 

necessary to meet that cap. A fundamental premise of this process 

is that flexibility would be given in exchange for a wellcontrolled facility. In response to the comments by the last 

commenter, the insignificant emission factor may not exceed 9.0%. 

The impacts will be evaluated at the final emission cap total. An 

insignificant emission factor will be adjusted accordingly if the 

health effects review dictates lower emissions. The TNRCC agrees 

that cumulative impacts could be significant and that is why all 

facilities will be evaluated under the flexible permit to ensure 

acceptable off-site impacts. 
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The f ollowins discussion addresses comments resardins 3116.717, 

Imvlementation Schedule for Additional Controls. 

A commenter stated that the emission cap adjustment in 8116.717 

should be mandatory, not optional. 

Section 116.715 (c) (8) requires an adjustment to an emission cap for 

the shutdown of a facility subject to a schedule to install 

controls. This provision allows the Executive Director additional 

authority to place conditions in the permit to address these 

situations, 

One commenter suggested revising 5116.717 by adding a statement 

that prohibits banking, sale, and/or netting of emission reductions 

made under a flexible permit. The commenter argued that such 

actions would be inappropriate, especially in nonattainment areas, 

for a program which is allegedly designed to reduce emissions. 

The Commission does not agree with the suggested change, The 

Commission feels that it is not appropriate to treat emission 

reductions obtained through the flexible permit process any 

differently than those obtained under the current regulatory 

process. Additionally, if the reductions meet the creditability 

criteria specifiedin applicable regulations, the reductions should 
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be available for use. 

The followincr discussion addresses comments resardins 8116.718. 

Siqnificant Emission Increase. 

A commenter suggested revising 8116.718 and 8116.721 (b) to allow 

replacement facilities which utilize BACT to be constructed under 

the flexible permit. 

New facilities, whether they are replacement facilities or not, may . 

be authorized under a flexible permit without the suggested 

revisions. As with any new facility, a replacement facility must 

meet all of the applicable requirements of this subchapter, 

including the use of BACT, to obtain a flexible permit. 

One commenter suggested revising 8116.718 to assure consistency 

with the requirement to protect public health that is stated in 

8116.711(1). Section 116.718 seems to imply that the requirement 

to protect public health is only triggered if an emission increase 

exceeds the permit allowable by a wsignificantN amount. The 

commenter recommended the TNRCC consider using a lower baseline for 

determining significant increases whenever modeling includes 

emissions that are below permit allowables. 
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The rule requires that impacts be evaluated at the proposed 

emission cap which includes an insignificant emissions factor. 

Thus, any increase in emissions above the emission cap or 

individual emission limitation is a significant increase which 

would require a permit amendment and reevaluation of the impacts 

and demonstration that applicable PSD and nonattainment (NA) 

requirements are met. The Commission believes that all applicable 

PSD/NA requirements will be met under these rules. However, the 

Commission will review the rule further and initiate additional 

rulemaking as necessary. 

A commenter suggested defining insignificant in 8116.718 with a 

numerical figure. 

Given the variety of facilities and pollutants anticipated to be 

authorized through flexible permits, it is impractical to define 

"insignificantn in terms of a numerical value. 

The followins discussion addresses comments resardins 8116.721, 

Amendments and Alterations. 

A commenter stated that permit alterations in 8116.721 should not 

be allowed without public notification. Also, the cumulative 

impacts of multiple alterations should be added to determine if 
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additional controls are needed. Paragraph (3) should require BACT. 

Alterations allow minor changes to permits that do not increase 

emissions, change the method of control, or change the character of 

emissions; .therefore, public notice and control technology review 

are not necessary. Because of the minor nature of the alteration 

process and since the emissions cap cannot be exceeded, cumulative 

impacts and additional controls are not warranted during the review 

of an alteration. 

A commenter suggested revising S116.721 (b) to specify that facility 

alterations which may change a general or special provision do not 

require prior approval unless they 'Iadverselyn affect control 

equipment performance. 

The current language provides the Executive Director the 

opportunity to review a change to a facility made under a permit 

alteration to determine if the change nadversely" affects control 

equipment performance. Additionally, permit conditions may need 

to be revised by the permit engineer to reflect the change. 

One commenter suggested revising 5116.721 (dl to allow the use of 

standard exemptions under a flexible permit. 
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The Commission disagrees with the commenter's suggestion. See the 

response to the second comment in the general comments addressed at 

the beginning of this preamble. 

A commenter stated that S116.721 (c) and (d) are examples of the 

difficulty TNRCC will have in enforcing the flexible permit rules. 

The TNRCC should explain to the public how enforcement and 

emissions inventories will be accomplished for facilities operating 

under a flexible permit. Specific examples should be given. 

The Commission expects to have better tools for enforcement, such 

as recordkeeping and emissions monitoring, under the flexible 

permit rules, and the compliance staff will continue to enforce the 

rules as they have in the past. The holder of a flexible permit 

will be required to maintain data sufficient to demonstrate 

compliance with the emissions cap and individual emission 

limitations contained in the flexible permit, and this information 

will be available to TNRCC field staff and/or local programs. 

One commenter suggested revising 8116.721 to clarify the time frame 

for response by TNRCC to a permit amendment or alteration 

application. The commenter recommended a response time of seven to 

14 days. Also, the commenter suggested the rule specify whether 

any penalties are assessed for exceeding the limitations for an 
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alteration or amendment. 

The TNRCC is currently developing proposed rules in a new Chapter 

,281 that will address time frames for permit review. It would be 

duplicative to address the same issues within this rulemaking. 

Whether penalties are assessed for a violation is determined on a 

case-by-case basis by the enforcement staff. Typically, the staff 

responds to all alteration requests; however, it is the permit 

holder's responsibility to verify individual compliance with all 

applicable rules and regulations. 

The followins discussion addresses comments resardins 8116.750, 

Flexible Permit Fee. 

A commenter stated that, in S116.750, fees should be charged for 

alterations, ownership changes, location changes, and standard 

exemptions to recover staff resources for these activities. 

The Commission has developed the flexible permit fee structure to 

be consistent with the existing fee system for new source review 

permits. 

The followins discussion addresses 5116.760, Flexible Permit 

Renewal. 
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Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 40 of 67 

A commenter suggested 'revising 8116.760 to require adjustment, at 

renewal, of emissions to 10% over the actual maximum emissions that 

occurred during the period prior to renewal. 

This issue was addressed in the portion of this preamble regarding 

responses to the TNRCC issues list. 

The new section is adopted under the Texas Health and Safety Code, 

Texas Clean Air Act (TCAA) , 8382.017, which provides TNRCC with the 

authority to adopt rules consistent with the policy and purposes of 

the TCAA. 
STAFF

RECOMMENDATIONS
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 41 of 67 

SUBCHAPTER A : DEFINITIONS 

5116.13. Flexible Permit Definitions. 

Emission cap - Emission limit for a specific air contaminant 

based on total emissions of that pollutant adjusted by an 

Insignificant Emissions Factor from all sources that are included 

in a flexible permit. 

Expected maximum capacity - The maximum capacity of a 

facility according to its physical and operational design and 

planned operation. 

Individual emission limitation - Emission limit for a 

specific air contaminant not covered by an emission cap for an 

individual facility adjusted by an Insignificant Emissions 

Factor. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 42 of 67 

This agency hereby certifies that the section as adopted has been 

reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Issued in Austin, Texas, on November 16, 1994. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 43 of 67 

The amendment is adopted under the Texas Health and Safety Code, 

Texas Clean Air Act (TCAA), 5382.017, which provides TNRCC with 

the authority to adopt rules consistent with the policy and 

purposes of the TCAA. 

SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

PERMIT APPLICATION 

5116.110. Applicability. 

(a) Permit to construct. Any person who plans to construct 

any new facility or to engage in the modification of any existing 

facility which may emit air contaminants into the air of this 

state shall obtain a permit pursuant to 5116.111 of this title 

(relating to General Applications), satisfy the conditions for a 

standard permit pursuant to the requirements in Subchapter F of 

this chapter (relating to Standard Permits), satisfy the 

conditions for a flexible permit pursuant to the requirements in 

Subchapter G of this chapter (relating to Flexible Permits), or 

satisfy the conditions for exempt facilities pursuant to Subchapter C of this chapter (relating to Permit Exemptions) 'before 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 44 of 67 

any actual work is begun on the facility. Modifications to 

existing permitted facilities may be handled through the amendment of an existing permit or an existing flexible permit. 

(b)-(el (No change.) 

The agency hereby certifies that the section as adopted has been 

reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Issued in Austin, Texas, on November 16, 1994. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 45 of 67 

The new sections are proposed under the Texas Health and Safety 

Code, Texas Clean Air Act (TCAA), 8382.017, which provides TNRCC 

with the authority to adopt rules consistent with the policy and 

purposes of the TCAA. 

SUBCHAPTER G : FLEXIBLE PERMITS 

PERMIT APPLICATION 

S116.710. Applicability. 

(a) Flexible permit. A person may obtain a flexible permit 

which allows for physical or operational changes as provided by 

this subchapter as an alternative to obtaining a new source 

review permit under 8116.110 of this title (relating to Applicability), or in lieu of amending an existing permit under 8116.116 

of this title (relating to Amendments and Alterations). A person 

may obtain a flexible permit pursuant to 8116.711 of this title 

(relating to Flexible Permit Application) for a facility, group 

of facilities, or account before any actual work is begun, 

provided however: 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 46 of 67 

(1) only one flexible permit may be issued at an 

account site; 

(2) modifications to existing facilities covered by a 

flexible permit may be handled through the amendment of an existing flexible permit; 

(3) permitting of a new facility may be handled 

through the amendment of a flexible permit; and 

(4) a flexible permit may not cover sources at more 

than one account site. 

(b) Operations certification. Any person who obtains a 

flexible permit under this subchapter shall comply with 

S116.110 (b) of this title. 

(c) Change in ownership. The new owner of a facility, 

group of facilities, or account shall comply with §116.110(c) of 

this title, provided however, that all facilities covered by a 

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 
Texas Natural Resource 

Conservation Commission. 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 47 of 67 

permit by the Texas ~atural Resource Conservation Commission 

(TNRCC). After the sale 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 flexible permit and all rules and 

regulations of the TNRCC. 

(d) Submittal under seal of registered professional engineer. All applications for a flexible permit or flexible permit 

amendment shall comply with §116.110(d) of this title. 

(e) Responsibility for 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 for the owner is responsible for complying with 

this section, except as provided by subsection (c) of this 

section. 

8116.711. Flexible Permit Application. Any application for a new 

flexible permit or flexible permit amendment must include a 

completed Form PI-1 General Application. The Form PI-1 must be 

signed by an authorized representative of the applicant. The 

Form PI-1 specifies additional support information which must be 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 48 of 67 

provided before the application is deemed complete. In order to 

be granted a flexible permit or flexible permit amendment, the 

owner operator of the proposed facility shall submit 

information to the Texas Natural Resource Conservation Commission 

(TNRCC) which demonstrates that all of the following are met. 

(1) Protection of public health and welfare. The 

emissions from the proposed facility, group of facilities, or 

account as determined pursuant to S116.716 of this title 

(relating to Emission Caps and Individual Emission Limitations), 

will comply with all rules and regulations of the TNRCC and with 

the intent of the Texas Clean Air Act (TCAA), including protection of the health and physical property of the people. In considering the issuance of a flexible permit for construction or 

modification of any facility, group of facilities, or account 

within 3,000 feet or less of an elementary, junior high/middle, 

or senior high school, the TNRCC shall consider any possible 

adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility, group of facilities, or 

account may have on the individuals attending these school 

facilities. 

(2) Measurement of emissions. The proposed facility, 

group of facilities, or account will have provisions for measur- 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 49 of 67 

ing the emission of air contaminants as determined by the 

~xecutive Director. This may include the installation of 

sampling ports on exhaust stacks and construction of sampling 

platforms accordance with guidelines in the TNRCC "Compliance 

Sampling Manual. 

(3) Best Available Control Technology (BACT) . The 

proposed facility, group of facilities, or account will utilize 

BACT, with consideration given to the technical practicability 

and economic reasonableness of reducing or eliminating the 

emissions from the facility on a proposed facility, group of 

facilities, or account basis. Control technology beyond BACT 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. For new 

facilities, the use of BACT shall be demonstrated for the 

individual facility. 

(4) Federal 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 the United States Environmental 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 50 of 67 

Protection Agency (EPA~ pursuant to authority granted under the 

Federal Clean Air Act (FCAA), §111, as amended. 

(5) National Emission Standards for Hazardous Air 

Pollutants (NESHAPS) and Maximum Achievable Control Technology 

(MACT). The emissions from each facility as defined in 40 CFR 

Part 61 will meet at least the requirements of any applicable 

NESHAPS, as listed under 40 CFR Part 61, or any MACT standard, 

promulgated by EPA pursuant to authority granted under the FCAA, 

5112, as amended. 

(6) Performance demonstration. The proposed facility, 

group of facilities, or account will achieve the performance 

specified in the flexible permit application. The applicant may 

be required to submit additional engineering data after a 

flexible permit has been issued in order to demonstrate further 

that the proposed facility, group of facilities, or account will 

achieve the performance specified in the 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. 

(7) Nonattainment review. If the proposed facility, 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 51 of 67 

group of facilities, or account is located in a nonattainment 

area, each facility shall comply with all applicable requirements 

under the undesignated head concerning nonattainment review in 

Subchapter B of this chapter. 

(8) Prevention of Significant Deterioration (PSD) 

review. If the proposed facility, group of facilities, or 

account is located in an attainment area, each facility shall 

comply with all applicable requirements under the undesignated 

head concerning PSD in Subchapter B of this chapter. 

(9) Air dispersion modeling or ambient monitoring. 

Computerized air dispersion modeling and/or ambient monitoring 

may be required by the TNRCC Permits Program to determine the air 

quality impacts from the facility, group of facilities, or 

account. 

(10) Application content. In addition to any other 

requirements of this chapter, the applicant shall: 

(A) identify each air contaminant for which an 

emission cap is desired; 

(B) identify each facility to be included in the 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 52 of 67 

flexible permit; 

(C) identify each source of emissions to be 

included in the flexible permit and for each source of emissions 

identify the Emission Point Number (EPN) and the air contaminants 

emitted; 

(Dl for each emission cap, identify all 

associated EPNs and provide emission rate calculations based on 

the expected maximum capacity and the proposed control 

technology; 

(El for each individual emission limitation, 

identify the EPN and provide emission rate calculations based on 

the expected maximum capacity and the proposed control 

technology. 

(11) 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. 

2116.714. Application Review Schedule. The flexible permit ap- 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 53 of 67 

plication will be reviewed by the Texas Natural Resource 

Conservation Commission in accordance with S116.114 of this title 

(relating to Application Review Schedule). 

1116.715. General and Special Conditions. 

(a) Flexible permits may contain general and special 

conditions. The holders of 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 significantimpact on the air environment, or could cause the facility, group of facilities, or 

account to become subject to review under the undesignated 

headings of Subchapter B of this chapter relating to Nonattainment Review or Prevention of Significant Deterioration Review, 

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 exemption or 

standard permit. 

(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 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 54 of 67 

flexible permit. 

(c) The following general conditions shall be applicable to 

every flexible permit. 

(1) Voiding of permit. A flexible permit or flexible 

permit amendment under this subchapter is automatically void if 

the holder fails to complete construction as specified in the 

flexible permit. Upon request, the Executive Director may grant 

a one time 12-month extension of the date to complete 

construction. This section does not apply to physical or 

operational changes allowed without an amendment under P116.721 

of this title (relating to Amendments and Alterations). 

(2) Construction progress. The start of construction, 

construction interruptions exceeding 45 days, and completion of 

construction shall be reported to the appropriate regional office 

of the Texas Natural Resource Conservation Commission (TNRCC) not 

later than 15 working days after occurrence of the event. 

(3) Start-up notification. The appropriate Air 

Program Regional Office of the TNRCC and any local program having 

jurisdiction shall be notified prior to the commencement of 

operations of the facilities authorized by the permit in such a 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 55 of 67 

manner that a representative of the TNRCC may be present. Phased 

construction, which may involve a series of facilities commencing 

operations at different times, shall provide separate notification for the commencement of operations for each facility. 

(4) Sampling 'requirements. If sampling of stacks or 

process vents is required, the flexible permit holder shall 

contact the Source and Mobile Monitoring Section of the TNRCC 

Office of Air Quality 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 Air Program Regional Office of the TNRCC. The 

flexible permit holder is also responsible for providing sampling 

facilities and conducting the sampling operations or contracting 

with an independent sampling consultant. 

(5) Equivalency of methods. It shall be the responsibility of the 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 

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 
Texas Natural Resource 

Conservation Commission ' . 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 56 of 67 

permit. 

(6) Recordkeeping. A copy of the flexible permit 

along with information and data sufficient to demonstrate . 

continuous compliance with the emission caps and individual 

emission limitations contained in the flexible permit shall be 

maintained in a file at the plant site and made available at the 

request of personnel from the TNRCC 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 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 flexible permit. Information in the file shall be retained 

for at least two years following the date that the information or 

data is obtained. 

(7) Maximum allowable emission rates. A 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 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 57 of 67 

the flexible permit. Flexible permitted sources are limited to 

the emission limits and other conditions specified in the table 

attached to the flexible permit. 

(8) Emission cap readjustment. If a schedule to 

install additional controls is included in the flexible permit 

and a facility subject to such a schedule is taken out of service, the emission cap contained in the 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. 

(9) Maintenance of emission control. The facilities 

covered by the 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 upsets and maintenance 

shall be made in accordance with S101.6 and S101.7 of this title 

(relating to Notification Requirements for Major Upset and 

Notification Requirements for Maintenance). 

(10) Compliance with rules. Acceptance of a flexible 

permit by a permit applicant constitutes an acknowledgement and 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 58 of 67 

agreement that the holder will comply with all Rules, Regulations, and Orders of the Commission issued in conformity with 

the Texas Clean Air Act and the conditions precedent to the 

granting of the permit. If more than one state or federal rule 

regulation or 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 flexible permit. 

(d) There may be additional special conditions attached to a flexible permit upon issuance or amendment of the 

permit. Such conditions in a flexible permit may be more 

restrictive than the requirements of Title 30 of the Texas 

Administrative Code. 

8116.716. 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 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 59 of 67 

based on application of current Best Available Control Technology 

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 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 flexible permit, an emission cap shall be adjusted by modifying the emissions cap accordingly. 

(d) Insignificant emission factor. The emission caps and 

individual emissions limitation calculated pursuant to this 
Texas Natural Resource 

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Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 60 of 67 

section may include an.Insignificant Emissions Factor which does 

not exceed 9.0% of the total emission cap or individual emission 

limitation. 

(el An emission cap will be readjusted downward for any 

facility covered by a 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 flexible permit is amended or altered. 

If an amendment to a flexible permit is not required to meet the 

new regulation, then within 60 days of making the change, the 

permittee must submit a request to alter the permit and include 

information describing how compliance with the new requirement 

will be demonstrated. 

8116.717. Implementation Schedule for Additional Controls. If a 

facility requires the installation of additional controls to meet 

an emission cap for a pollutant, the flexible permit shall 

specify an implementation schedule for such additional controls. 

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. 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 61 of 67 

5116.718. Significant Emission Increase. An increase in 

emissions from operational or physical changes at an existing 

facility covered by a flexible permit is insignificant, for the 

purposes of state new source review under this subchapter, if the 

increase does not exceed either the emission cap or individual 

emission limitation. 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. 

5116.720. Limitation on Physical and Operational Changes. 

Neither operational nor physical changes authorized under this 

subchapter may result in an increase in actual emissions at 

facilities not covered by the flexible permit unless those 

affected facilities are authorized pursuant to S116.110 of this 

title (relating to Applicability). 

5116.721. Amendments and Alterations. 

(a) Flexible permit amendments. All representations with 

regard to construction plans and operation procedures in an 

application for a flexible permit, as well as any general and 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 62 of 67 

special provisions attached become conditions upon which the 

subsequent flexible permit is issued. It shall be unlawful for 

any person to vary from such representation or flexible permit 

provision if the change will cause a change in the method of 

control of emissions, the character of the emissions, or will 

result in a significant increase in emissions, unless application 

is made to the Executive Director to amend the flexible permit in 

that regard and such amendment is approved by the Executive 

Director or Commission. Applications to amend a flexible permit 

shall be submitted with a completed Form PI-1 and are subject to 

the requirements of S116.711 of this title (relating to Flexible 

Permit Application) . 

(b) Flexible permit alterations. 

(1) A flexible permit alteration is for any variation 

from a representation in a flexible permit application or a 

general or special provision of a flexible permit that does not 

require a flexible permit amendment. 

(2) All flexible permit alterations which may involve 

a change in a general or special condition contained in the 

flexible permit, or affect control equipment performance must 

receive prior approval by the Executive Director. The Executive 
Texas Natural Resource 

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For New Construction or Modification 

Chapter 116 

Page 63 of 67 

Director shall be noti'fied in writing of all other flexible 

permit alterations within 10 days of implementing the change, 

unless the permit provides for a different method of notification. Any flexible permit alteration request or notification 

shall include information sufficient to demonstrate that the 

change does not interfere with the owner or operator's previous 

demonstrations of compliance with the requirements of S116.711 of 

this title, including the protection of public health and 

welfare. The appropriate Texas Natural Resource Conservation 

Commission Regional Office and any local air pollution program 

having jurisdiction shall be provided copies of all flexible 

permit alteration documents. 

(3) Flexible permit alterations shall not be subject 

to the requirements of Best Available Control Technology 

identified in §116.711(3) of this title. 

(c) Changes not requiring an amendment or alteration. The 

following changes do not require an amendment or alteration, 

except that an amendment is required if the change will cause a 

change in the method of control of emissions, the character of 

the emissions, or will result in a significant increase in 

emissions: 
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Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 64 of 67 

(1) a change in throughput; or 

(2) a change in feedstock. 

(dl Standard exemption in lieu of permit amendment or 

alteration. 

(1) Notwithstanding subsections. (a) or (b) of this 

section, no permit amendment or alteration is required if the 

changes to the permitted facility qualify for an exemption under 

Subchapter C of this chapter (regarding Permit Exemptions) unless 

prohibited by permit provision as provided in S116.715 of this 

title (relating to General and Special Conditions). All such 

exempted changes to a permitted facility shall be incorporated 

into that facility's permit at such time as the permit is amended 

or renewed. 

(2) Emission increases authorized by standard 

exemption at an existing facility covered by a flexible permit 

shall not cause an exceedance of the emissions cap or individual 

emission limitation. 

8116.722. Distance Limitations. No flexible permit may be 
Texas Natural Resource 

Conservation Commission 

Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 65 of 67 

issued unless the dist.ance and location restrictions found in 

S116.117 of this title (relating to Distance Limitations) are 

met. 

5116.730. Compliance History. As part of a flexible permit 

review, or the review of an amendment of a flexible permit, or 

renewal of an existing flexible permit, the provisions found in 

the undesignated head regarding Compliance History in Subchapter 

B of this chapter shall be applicable to the facility, group of 

facilities, or account being permitted, amended, or renewed. 

5116.740. Public Notice and Comment. Any person who applies for 

a flexible permit or an amendment to a flexible permit shall 

comply with the provisions in the undesignated head regarding 

Public Notification and Comment Procedures in Subchapter B of 

this chapter. 

5116.750. Flexible Permit Fee. 

(a) Fees required. Any person who applies for a flexible 

permit or for an amendment to an existing flexible permit shall 

remit, at the time of application for such permit, a fee as set 
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For New Construction or Modification 

Chapter 116 

Page 66 of 67 

forth in subsection (b)' of this section. Fees will not be 

charged for flexible permit alterations, changes of ownership, 

or changes of location of permitted facilities. 

(b) Fee amounts. The fee to be remitted with a flexible 

permit application shall be based on the total annual allowable 

emissions from the permitted facility, group of facilities, or 

account for which the flexible permit is being sought. The fee 

shall be $25 per ton with the minimum fee being $450 and the 

maximum fee $75,000. For flexible permit amendments, the fee 

shall be calculated based on $25 per ton for the incremental 

emission increase with the maximum fee being $75,000. 

(c) Payment of fees. All permit fees for a flexible 

permit shall be remitted in the form of a check or money order 

made payable to the Texas Natural Resource Conservation 

Commission (TNRCC) and delivered with the application for 

flexible permit or flexible permit amendment to the TNRCC Office 

of Air Quality New Source Review Program. Required fees must be 

received before the agency will begin examination of the application. 

(dl Return of fees. Fees must be paid at the time an 

application for a flexible permit or flexible permit amendment is 
Texas Natural Resource 

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Control of Air Pollution By Permits 

For New Construction or Modification 

Chapter 116 

Page 67 of 67 

submitted. If the applicant withdraws the application prior to 

issuance of the flexible permit or flexible permit amendment, 

one-half of the fee will be refunded, except that the entire fee 

will be refunded for any such application for which a standard 

exemption is allowed. No fees will be refunded after a deficient 

application has been voided, denied, or after a flexible permit 

or flexible permit amendment has been issued by the agency. 

8116.760. Flexible Permit Renewal. Flexible permits will be 

renewed in accordance with Subchapter D of this chapter (relating 

to Permit Renewals) . 

The agency hereby certifies that the sections as adopted have 

been reviewed by legal counsel and found to be a valid exercise 

of the agency's legal authority. 

Issued in Austin, Texas, on November 16, 1994. 
I~I~SIAICOFTEXAS 

COUNTY OF TRAVIS 

I hereb certify that thla I3 a true and mnen mpl TEXAS NATURAL RESOURCE CONSE~R-BI b~~WQ%tion Commission dam, 

the original of which I8 filM In the permanent records 0 

. Commission. 

Given under my hMd nd tn@ mat of office on 

)rW 21 

DOCKET NO. 94-0715-RUL 

Glo* A vesqiez, Chief clerk0 

Texag Natural Resource 

COnservatl n o mission WEREAS, pursuant to the Texas Health and Safety Code Anno?a$e?i, 

s382.017 (Vernon's 1992); Texas Government Code Annotated, subchapter B, 

Chapter 2001 (Vernon's 1993); and 40 Code of Federal Regulations, 851.102, the 

Texas Natural Resource Conservation Commission (TNRCC or Commission), after 

proper notice, conducted a public hearing on October 3, 1994 to consider 

revisions to 30 TAC Chapter 116 and the State Implementation Plan (SIP); and 

WHEREAS, the Commission duly circulated to interested persons, the 

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

all applicable local air pollution control agencies hearing notices of its 

intended action; and 

WEREAS, interested perso* were invited to submit data, views, and .. recommendations on the pitoposed revisions, either orally or in writing, at the 

hearing; and 

WHEREAS, copies of the proposed revisions were available for public 

inspection at the Commission's central office and regional offices prior to 

the scheduled hearing; and 

=REAS, data, views, and recommendations of interested persons were 

submitted to the Commission at the hearing and were considered by the 

Commission as reflected in the attached analysis of testimony; and 

WHEREAS, the TNRCC finds that said analysis of testimony includes the 

names of all interested groups or associations offering comment on the 

revisions and their position concerning the proposed revisions; and 

WHEREAS, the Texas Health and Safety Code Annotated, 

8382.017 gives the Commission authority to make rules and regulations 

consistent with the policies and purposes of the Texas Clean Air Act; and 
WHERKAS, the Commission finds that the reasoned justification and 

factual bases for the proposed revisions are-fully set out in the analysis of 

testimony; and 

WHER~S, the Commission hereby certifies that the revisions, as adopted, 

have been reviewed by legal counsel and found to be a valid exercise of the 

Commission's legal authority. 

NOW, THEREFORE, BE IT ORDERED BY THE TNRCC THAT: 

1. The revisions to 30 TAC Chapter 116 and the SIP appended to this 

Order are hereby adopted and promulgated; and 

2. The Executive Director is instructed to transmit a certified copy of 

this Order, together with the adopted revisions, to the Governor of Texas for . 

submittal to the Regional Administrator of the EPA as a proposed revision to 

the Texas SIP pursuant to the Federal Clean Air Act, 8110, as amended; and 

3. The Executive Director is instructed to file a certified copy of the 

adopted revisions with the Secretary of State pursuant to the Administrative 

Procedure Act. 

PASSED AND APPROVED at the regular meeting of the TNRCC on this .. the 16th day of November, 1994. 

BY: v 

.. 

ATTSST : 

b*'& a. 0 &q*/ 

Gloria A. VasWez, Chie 
intends to work with the TCPlA to @ate the 

entire section on mobile homes in the Phn of 

Operation and to add a new section on mobile homes in the TCPlA Manual. Such 

amendment will indude clnent definitions, 

clnent construction standards, and current 

rating methods and will be adbessed in a 

separate rulemaking proceeding. 

COMMENT: One commenter questioned 

whether the fi& tier of counties shouM include Orange County since recenlty revised, 

waded wind resistance standarcts for new 

HUD-code manufactured homes applies to 

Orange County along with the 14 counties 

listed in the preamble to the plrblished rule. 

RESPONSE: The Department does not be 

Swe that Orange County should be included 

in the first tier of counties because the eligibility for counties to be placed in the designated 

calastrophe area is nd based on wind zones 

established by HUD. Counties can only be 

phced in the de~ig~ted catastrophe area by 

wtitiwlina the Commissioner for a hevim to 

make a determination whether windstorm -and 

hail insuance is nd reasonably avaihble to a 

substantial number of ownek of insuable 

property within such a county slrbjed to unusually frequent and severe darnage resulting 

from windstams ada haiktorrns. Thus, this 

is nd a slrbjxt that can be addressed in this 

rulemaking proceeding. 

The amendment is adopted pursuant to the 

lnsurance Gode. Articles 21.49 and 1.03A, 

and the Governmenl Code §§2001.004 et 

seq. Article 21.49, 55(c) of the lnsuance 

Code provides that the Comm'mioner of Insuance by rule shall adopt the TCPlA plan of 

operation with the advice of the TCPlA board 

of directors. Section 5(9 of Artide 21.49 provides that any interested person may petition 

the Commissioner to modify the plan of operation in accordance with the Administrative 

Procedure Act (Government Code title 10, 

Subtitle A. Chapter 2001). Section 8D@) of 

Aiiile 21.49 provides that liability limits for 

insurable prcq~rty that is not covered under 

$8D(a), which specifies liability limits for 

dwellings and buiuings and the corporeal 

movable property, shaU be established by the 

plan of operation. Article 21.49, §8D(c) provides that the Comm'sioner, as part of the 

annual rate hearings, shall adjust the liability 

limits, including the limits set by 58D(a), for 

inktion at a rate that reflects any change in ' the BOECK Index or other index that may 

accuately refled changes in the cost of construction or residential values in the catastrophe area. Article 21.49. 55, subsedions (c) 

and (I) and gD(c) by thei terms delegate the 

foregoing authoriiy to the State Board of Insuance. However. under Article 1.02 of the 

Insurance Code, as amended by the 73rd 

Texas Legislature in House Bill 1461 (Acts 

1993, TJd Legishtue, Regular Session, 

Chapter 685. 51.01). a reference in the Insurance Code or another insuance law to the 

State Wad of lnsuance means the Commusionet of Insurance or the Texas Department 

of Imuance. as consistent with the respective pen and duties of the Commissioner 

and the Department under Article 1.02. Section 1.23(c) ol House Bill 1461 provides that 

on September 1. 1993. the Ebard shall relinquish authority over all areas of adivity of the 

Texas Department of lnsuance excep the 

promulgalion and appoval of rates and policy 

fm and endorsements and hearings, proceedings, and rules rehted to these activities; 

such authority shaU be exercised by the 

Board until no later than September 1. 1994. 

Section 1.23(d) of House Bill 1461 provides 

that on and aner the date a Commissioner ol 

lnsuance is appointed under subsection (a) 

of 51.23 the Commissioner shall cooperale 

with the Board to assume the authority 

ganted to the Board under subsection (c) of 

51.23 and shall dopl rules as necessary to 

govern those act~dies. ~txtiion 1.23(d) further provides that as soon as possble after 

the appointment of the Commissioner under 

51 .=(a) but nd later than September 1, 

1994, the Commissioner shall assume the 

authority ganted to the Board under $1 B(c). 

Pmuant to Board Order Number 60574. November 29, 1993, the State Board of Insurance transferred the authority ganted to the 

Bcard under §l.P(c) of House Bill 1461 to 

the Commissioner of Insuance, eHedive December 16, 1993. Article 1 .OA, as enacted 

by the 73rd Texas Legislature in House Bill 

1461 (Acts 1993. 73d Legishtue, Regular 

Sessii, Chapter 685, 51 .in). provides that 

the CmmWoner of lnsuance may adopt 

rules and reguhtions, which must be for general and uniform appriion, for the conducl 

and execution of the duties and functions of 

the Texas Department of lnsmnce only as 

authwized by a statute. The Government 

Code 552001.004 et seq (Admin7&atke Rocedure Act) authwize and requie each state 

agency to dopl rules of practice setting falh 

the nature and requiement of available procedures and jo presabe the procedues for 

adoption of rules by a slate agency. 

65.4001. Plan of Operaion. 

(a)-(el (No change.) 

(f) Mobile Homes. 

(1)-(2) (No change.) 

(3) Underwriting requirements. 

In order for a mobile home to be insured by 

the association, it must meet the following 

underwriting requirements: 

(A)-(J) (No change.) 

(K) Catastrophe insurance 

shall not provide insurance coverage for any 

one insurable risk in excess of $84.000 on 

the mobile home and on household goods 

contained therein. which shall include all 

personal property usual to a residence of the 

insured and the insured's family. 

(L) The limit of liability for 

mobile homes shall be adjusted annually for 

inflation at a rate that reflects any change in 

the BOECK Index or other index that may 

accurately reflect changes in the cost of 

conshction or residential values in the catastrophe area. Such adjustment shall be 

made by the Commissioner as part of the 

annual rate hearings held pursuant to Article 

5.101 of the Insurance Code. 

(4) (No change.) 

This agency hereby cdities that the rule as 

adopted has been reviewed by legal counsel 

and found to be a val'd exercise of the agency's authaity. fIssued in Austin, Texas, on November 17, 

1994. 

TRD-9451079 D. J. Powers 

Chlef CbR and Oeneral 

Counsel 

Texas Department of 

Iwrance 

Ellective date: December 8, 1994 

Proposal publication date: Augusl 9, 1994 

For further informalion, please call: (512) 463-6327 

+ + + 

TITLE 30. ENVIRONMENTAL QUALITY 

Part I. Texas Natural 

Resource Conservation 

Commission 

Chapter 116. Control of Air 

Pollution for New 

Construction or Modification 

The Texas Natural Resouce Conservation 

Commission (IT4 RGC or Comm'sion) adopts 

new 51 16.13. concemina Flexible Permit Definitibis, an amendmeri to 51.16.110, concerning Applicability, and a new Subchapter 

G, Flexible Permits, containina new 

§§116.710, 116.711 ,- 116.714-i16.718, 

116.720-1 16.722, 116. TJO, 116.740, 

116.750, and 116.760. Sections 116.13, 

116.710, 116.711, and 116.716 are adopted 

with changes to the proposed tea as pub 

fished in the September 20.1944, issue of the 

Texas Register (19 TexReg 7334). Sedions 

116.110. 116.714. 116.715, 116.717. 

116.718, 116.72G116.722.116.730, 116.740, 

116.750, and 116.760 are adopted without 

changes and will not be repllblished. 

The new 51 16.13 adds definitiis that relate 

to flexible permits, and the rwison to 

5116.110 ad& reference to flexible permits 

as an applicable requiement. The new 

Subchapter G has been developed in response to diedion from the Commission at 

the Januuy 21. 1994 policy agenda meeting. 

The proposal was developed after considering the position papers presented by industry, 

emionmental wow. and local programs 

under the slpecvision of Task Force 21. The 

new slrbchapter will aeate a new type of 

permit caned a Rexible permit. The Rexible 

permit will function as an optional ahematke 

to the preconsbvdion permits thal are now 

authorized in Slrbchapler B, concerning New 

Souce Review Permits. The flexible permit is 

designed to exchange flexibility fa emission 

redudions with the final goal being a. wellcontrdled facility. 

In the proposed rule preamble. the TNRCC 

stall requested comments on the folbwing 

specik issues: in $1 16.71 qc), temporary 

shutdowns be allowed la up to 12 months 

C. 

19 TexReg 9360 h'orember 25, 1994 Texas Regisler t 
without reduang the emission cap and is 12 

months an approwe amount of time for a 

shutdown to be corn'&red temporary; should 

the emission cap mae dosely reflect the 

actual emissions over the life of Ihe flexible 

permit el time of renmal; shoukl readjustment of the emissions cap andla individual 

emission limital'on be requied as a resun of 

emission reduction activil'i required by rules 

individual emission limitation. Any increase 

above the emission cap or individual emission limitation, whether by slandard exemp 

tion or otherwise, is a significant increase 

which requies a permit review. Allowing the 

emissions cap to Roal upward with each new 

standard exemption will eventually iwalidate 

the inilii pennil review. The Commission 

must maintain the ability to determine that the 

pursuant to the Federal ~iean ~r Act facilities under the flexhe permit will comply - 

(FCAA); ad should be rules allow emission with all existing rules and not cause an ambireductions resultinp from the installation of ent imd . uoblern. . 

mnads oftsets in to nonanainment be -* la areas. pum Of 

as Another mmmenter encouraged TNRCC to 

continue cuudinating with the national new 

A commenter stated that the proposed rules I 

go far beyond the scqx of the Task Face 21 

work group which originally conceived of the 

Rexble permit concept. The commenter argued that there was no intention in the aigii 

nal work golp to include new facilities in the 

Rexble permit. Public nolice and omunity 

lor hearings on each llexible permit is the 

only wav to camensate fa this adion. 1 

The rule hnguage prwed is within the 

scope of the Task Force 21 Workgroup, as 

well as the proposal made by staff to the 

Commksion. However, consensus was not 

reached bv the workarouo on all items. New I 

A public hearing on this poposa[ was held on souce review cornminee for future Chapter faciliities wke includ&l &cause it was 

October 3, 1994, in Austin. Wrinen testimony 116 revisions to assure cornistency with the ally felt lhat to exdude them from the flexible 

was received from the fdlowing commenterr: federal reguhtioru. permit would not be equitable to facilities that 

Amoco Prcd0Ct'~)n Company; the United 

States Environmental Prolection Agency; 

Exxon Company USA: Phillips 66 CompanySweeny Refinery; Phillips 66 CompanyBorper Facility; Society of the Plastics Idusby (SPI); Texas Micontinent Oil L Gas Assoc'ktion; Eastman Chemical Company; 

Houston Lighting & Paver ad Texas Center 

for Porky Studies. Arnoco's comments represent the Task Force 21 Ai Issues Subgrolp 

that aeessed the liexble permits issue. Galveston Houston Associalion fa Smog Revention and Sierra CbbAustin and Holston 

made specific comments and suggestions, 

bul did nd generally support or qpos adop 

tion of the rules. 

The lollowing d'sarssion addresses general 

comments. 

One commenter stated that Rexble permits 

should aflow emission limits to be established 

on a pollutant-by-pollutant basis. If only one 

kxble permit per site is allowed, then reopening of the permit for rncdif~ionshould 

be limited to review of the facilities affected 

by the change. 

The rules prwi& that emission limits will be 

established on a pollutant-by-pollutant basis. 

Each pollutant for which llexibiliity Is sought 

will have an emission limit established; either 

an emission cap a an individual emission 

limitation. All dher pollutants will be restricted 

to the previous permit allowable or 

gandlathered rates. When multiple facilities 

have been consolidated into a single pennit, 

and the comol'ited permit is reopened fw 

consaeration of an amendment, relating to 

one a more facilities authaized by that permit. the permit is nol considered reopened 

with respecl lo facilities fa which an arnendment, revision, a mcdification is nd sought 

as prw'ded in the Texas Clean Air Act 

(TCAA). p62.0511 (e). 

A commenter noted that the ability to chim 

The TNRCC intends lo continue cdinaling are already well-controlled. Public notice is 

an,, needed revisions to the flexble provided fa within the rule language. 

rules to be consistent with any chan~esto the A commenter stated that the original mandate 

federal Prevention 01 Significant Deterbation of the Task Fam 21 work group was to 

(PSD) and nomainment review programs. examine rules that would provide incentives 

for companies to improve controls al grandfa- One mrnenter made several general thW fadlilies while providing for increased ments on the proposed rules. Fint, thal Ihe 

rules should allow more than one Rexble protection of the ewionment and human . 

health. The commenter stated that TNRCC permit pet site, since some large faciiities 

may wish to combine rehted pre has exceeded this mardate without demon- . 

cess units into one second, flex& strating that these are necessary or ! : 

permits shculd parallel the ~itk v pogam. in the PMic interestFinally, the rut& shwM contain a provision 

outlining how sources may be remwed from 

a flexble permil. Since this action may be 

needed to resobe enhanced monitoring re 

quiements if the enhanced monitoring prwk 

sions are nd revised. - - 

The stafPs aiginal proposal to the Commission, which inil'ied the flexble permit 

rulemaking process was based on the premise that only one RexiMe permit would be 

allowed per site. As discussed in the pre 

posed rule preamble, similar process units 

may be corntined by creating separate emissions caps under the flexible permit. The Rle 

V program in Texas has been established as 

a separate permit, not combined wlh the 

state new souce review program. Therefore, 

it would not be apprqxiate lo combine flexi. 

Me permits with Tile V. A permittee may 

remwe a faciri from a llex~hle permit by 

requesting an amendment a alteralion of the 

flexible permit. Then, separate Chapter 116 

authoriration would be requied la the facility 

remwed from the flexble permit. 

One commenter suggested clarification of the 

epplicak'riy of the enhanced monitoring rules 

under 40 Cade of Federal Regulations (CFR). 

Part M to the flexble permit. The commenter 

argued that if the federal rule is applied to all 

emission pints under an emission cap, it 

could result in such excessive monitaing 

cods that the Rexble permit wwld not be 

See the response lo tho preceding comment. 

The Commission would reply that the public 

interest will continue lo be served by this new 

permitting mechanism, since new facililies 

are requied to meet Best Available Control 

Technology (BACT) and demonstrate abceptable off-site impacts. The Commission believes that the biggest benefi to the state is 

the reductions achieved by controlling older 

wandfathered facililies. 

One commenter stated that several aspeds 

of the proposed rules violate state law. Exarnples' are emission caps, allowing new facili- , 

ties to obtain flexble permits, and failwe to 

require BACT for each facility as defined in 

the TCAA. 

The Commission has reviewed the state law 

rehl~e to these issues and has determined 

thal the proposed rule language complies ' 

with the requirements of the TCAA. There is 

no restriclidn in the TCAA on the use of an 

emission cap in an air quality permit. The 

TCAA requies new facilities to oblain a permit and authorizes TNRCC to issue permits 

for multiple facilities at the same site. The 

proposed rules requie that the faciliy. group 

of facilities, or account utilize BACT as requied by the TCAA. The permilting 01 multiple facilities, as opposed to a single facility. 

raises additional issues an3 complications. 

The TCAA allows the TNRCC to develop 

stanjard exemtiorn should be retained un- nc~omicallv feazble. different requirements and methdologies to --- ~- . der the nex~G pinnit. account tor the additio~l comp~exitiG fwnd 

The app(imilw of Ihe ethnced monitaing when permining facirflies. 

The rules have a very limited restridion on rules under 40 CFR Part GI is not within the 

the atiliy to claim standard exerrption. There control of the TNRCG. The cornmenfer did A commenler stated thal in crdef to demonis no restriction fa new faciliies; a new facil- nd povide any sopporl for its argument re strate compliance with the prwo~ed rules, it 

ity may be constructed under standard ex- hted to monitoring costs. This issue is be- will be necessary lo simultaneously and accuemdiion. kn it will nd be included in the yond the scope of the proposed . rules. rately rneasue emissions froin multiple . 

smr&s to determine. for any point in time, r'ble hrmr a permit is Another mmkner stated that adsfinition of that the bsMr ,... requests do so. The rules allow a maximum expeded capadw is needed. 

faalii induded in the flexble permit to claim The only way to asue compliance with the 

a st;mdard exemption, pro&ded that the The Commission believes that the term 'ex- cap is to install continwus monitors. The 

emissions from the exempt facility do not pecled maximum capacity' is adequately de- poposed rules do no1 require Coniinuous 

cause an exceedence of the emiss'im cap or fined in $1 16.13. Emission Monitas (CEMs). 

+ ADOPTED RULES November 25, 1994 19 TexReg 9361 

Me permit. Thus, it is possble that, fa some 

facilities, certain pdlulanls will be covered by 

a flexble perma and the mhanged pollutants win be covered by the existing authorization. No change to the rule language is 

needed I0 suppal this interpetation. 

One commenler sugg&ed a minu Con=- 

lion to the definition d emissions cap in 

51 16.1 3 by drqqing the '6' from the wad 

'emissions- to be consislent with the use of 

the term thowhout the nde. 

The Commission agees wilh (he propcued 

cham and hes revised the rule language as 

suggested. 

A cmmenter suggested tha the term 'insignibcant emission fadW be defined in 

5116.13. 

The tern 'insignificant ernission fadd is a 

fador to alOw lor an insignifii emission 

increase, rwt to exceed 9.0%. in the dcuhlion of the emission cap to provide for flexbility if such emissions wil not result in &verse 

&popem impacts. The Comm'&6f~ beSeves th8t the term is defined in conlea by ils 

use in §116.716(d). 

A mmenter sugQesIed that any diffffences 

between the terms 'facility' ard 'indivaual 

fadrif be cmed in 5116.13. 

The term 'indiiual facilii' in 5116.13 is 

intended to make dear tM an ind'widual 

emissiwr lilation aFpris to a singb facility 

as opposed to an emjaion cap applying to 

multple facilities. 

In addition, the requirement in 51 16.711 (3) to 

utilize BACT for extiling faaliies win be 

based on a facility. a qorp of facilities, or an 

accwnt. The term 'inbnridual facilii in the 

last sentence of 5116.713(3) is needed to 

make clear that BACT la nw facilities may 

not be demonstrated on a goq of lacitiities 

or accarrd basis, but mlsl be demonstrated 

for each new faaly. The Commission does 

not beIieve that the suggested change is 

needed. 

The following disarssion addresses cornments regarding 5116.110, Applicak'li. 

One ccmmenter expessed concern about 

the impact of the eddiion of flexble permits in 

51 16.1 lo. The commenter argued that there 

could be serious enlacement problems for 

this type of pennit, and that there is a potential fa emissions to ueep ward due to 

deleaninations of irtsi~nifknt emission lactas and C€~tII~htive knpads from nearby 

sarces. Atso, the permit term fa all flexible 

permits should be lrnited to five years in 

subsection (c) . 

The addition of flexble permits in 5116.110 

makes it dear that a fkxble permit is one of 

several types of pennits that can be oblained 

to salisfy the TCAA. The Commission disagrees that flexble permits win create serious 

enforcement problems due to em'ssiion aeep 

a cumulative impects. Emissions cannot exceed the emission cap or individual emission 

limitation without amenfino the flexble permit 

and sut!+cling the changes to a permit review. The TCAA provides that permits are to 

be renewed every ten years. Except 'for 

cause' a shuier term may be imposed. The 

Commission sees no reason to limit the term 

of all kxble permits to rive years. If a justifit 

able cause exists fa a particular pennit, the 

Commission intends to limit the ten of the 

permit as appcopriate. 

The fdkwing discussion addresses corn 

ments regarding 51 16.71 0. &Iicabilii. 

A commenter suggested revising 

§116.710(a)(l) to alkw for more than one 

flexible permit per site for nonintegrated units. 

As stated previously. the staffs original pre 

psal to the Commission, which initiied the 

flexible permit rulemaking process, was 

based on the premise that only one flexble 

permit wwld be alkwed per site. As discussed in the proposed rule preamble. similar 

process unih may be combined by creating 

cuhtions and other melhods cen be suitable 

skslituies to sla& testing. as stated in 

51 16.71 1(6). The Commission win work with 

the epplicant to determine the bast means lo 

demu-strate compliance. Win 11 6.71 l(2) 

albws the Execul~e Dieda to require stadc 

sampling as deemed appqxiate. Therebe, 

the proposed rule language already eddresses the concerns raised by this 

cmmenter. 

A commenter suggested the following mim 

chges lo 51 16.71 l(2). (3). and (6) fa ansistency with other sadions of the chapter: 

edd the wad 'significanl' befae 'ai cantednards' in paragraph (2); edd the word 'propow befae 'facilitf in paragaph (3); and 

edd the word 'ecrpriion' aRer 'permir at 

separate emissions caps under the flexble the en3 of the finisentence in pariQraph (6). permit. Due to potential complexities in the 

mnpliance and permitting areas, 8s well The tm 'signifiant* has a SWcfic man in^ 

the uncertainties of this new program, the within this mapl~. H would be inappropriChtnmissi strongly believes that the a- ate to use this term in paravaph (2), since it 

cept of a single fkxble permit should be may restrict the agency's ability to requie a 

retained in the rule. demonstration of compliance. The Commission awes with the secord comment to add 

One cmmenter suggested revising 

g116.710(a) to make it dear that a flexble 

permit can only cover scuces at one geogaphic location. 

The Commission agrees that there should be 

only one flexble permit per site. The Corn 

mission agrees to the suggested chritication 

by adding new paragraph (4) in 51 16.710(4. 

A commenter contended Ihal ~116.710(a)(3) 

should nd atbw new solrces to obtain a 

&%Me permit, especially in nonattainmeni 

areas. 

New facilities were-indoded because it was 

generaly fen that to exclde them from flexiMe permits wwld rot be equlable to facilities 

that are already wekcontrolled. The CommisGon believes thal the biggest benetit lo the 

state is the reductiom achieved by controlling 

older. wandfathered faaliies. The Comrnission never envisioned that the flexble permit 

pocess would be limited to dder taalies. 

The CanmGsim feels that the public interest 

will mniinue to be served by this new permitting mechanism since new facilities are requied to meet BACT and acceptable 

impads. The flexble permits system is designed to address concern in nonattainrnent 

areas. 

The ldkwing discussion addresses corn 

ments regarding §116.711, Flexible Permit 

&Qlication. 

One commenter suggested that 5116.71 l(1) 

specify that there can be no exceedanca of 

the National Ambient AK Qualiiy Stardards or 

PSD increments and that it indude requiements to a&ess other air quality impacts 

under the FCAA. 

the w& -proposed' in para- 01, and 

has made the suggested change. Honever, 

'prop& means facalies poposed for b+ 

cksion in Ihe fiexible permit. Rewig the 

thid comment, the frst sentence in paragaph (6) requires demonstration that the 

source will achieve the performance specified 

in the ~ertnit amriion. The sed section 

ol this'sentencerequies the applicant to s&- 

rnit addilional information to demonstrate the 

source will achieve the performance specified 

in the permit. The commission feels these two 

perfwmance demonstrations are ressonaMe 

and necessary and is qp0s.d to the soggested change. 

A commenter suggested revisicg 51 16.71 1 (3) 

to clarify that BACT @res to all ai contaminants for new faalaies covered by the Rexble 

permit. Exisling facilities must only appfy ' 

BACT la the ai contaminants and facilities. 

that are given operational fiexitilily under the 

flexble permit. 

The TNRCC awe6 thal 5116.711(3) applies 

to all air contaminants fa new faaliies. Addi 

tionally, existing faaliiies must wy BACT 

only fa the air contaminants and faariies that 

are given operatioral flexibility. However, a 

demu-shatiin must be made that the facility 

is nd modified la the other ponutants and the 

applicanl must be able to make that demonstration on an ongoing basis. No rule chwe 

is necessary to alkw fa that interpetath. 

The commenter ab swted the revisim 

of $1 16.71 l(4) and (5) to state tha! ind'~dual 

sources subjecl to New Sarce Performance 

Standards (NSPS) or Natio~t Emksii 

Standards lor Hazardous A? Pollutants 

(NESHAP) standards will be considered in 

No change to Ihe rule is necessary. These compliance with the w&e standards H 

issues are ahady ad&& by emissions horn all sarces covered by the 

5116.711(1), 0, an3 (8). pennil are bekw the emission cap. 

A commenter suggested revising 51 16.71 l(2) The TNRGC does not have the authority to 

to allw calculation of emission rates as an relieve a perminee horn meti~ applicable 

anemalive to stadc testing. federal requirements. 

The stack testing provision of 5116.711(2) One commenier made several comments redoes not requie stack sampling as the sole gardicg 81 16.71 1. The commnler stated 

means of compliance determination. Fa the that: paragraph (1) should consaer wmuhperfamance demonstration, engineering cat- tive impads at a facility; paragaph (2) should 

ADOPTED RULES November 25, 1994 19 TexReg 9363 
requie actual measuement of emissions; 

perit~raph (4) and (5) should nd albw 

exceedences of NSPS or NESHAP slaw 

dards; paragaph (6) should nd allow predictive em'sions monitoring; actual emiss'm 

measuring instments are needed to accurate measwe the emissions; param (9) 

should consider cumubtive impacts from the 

facJrty in modeling requirements; and define 

wlenlial maximum production capacity in 

Par& (1) requies a health review to be 

conducted fa all pollutants brought into the 

permil. Parapraph (2) does require actual 

measurement of emissiins when the Executive Director detennines it is necessary. Paragmphs (4) and (5) require compliance with all 

&ie NSPS and NESHAPS. The Comm&m does hot agree with the mment 

rewig peragaph (6), since engineering 

cakulal'ms and pedidive emissions monk 

, torinp are accepable methods for determining compliance in many cases. See 

cpments in reference to paragraph (1) for 

comment regarding paragraph (9). Potential 

maximum poduction capacity shouki be the 

expeded maximum capacity as defined in 

5116.13. The kmission agees to revise 

the tenn in paragaph (1 1) from 'potential' to 

'expect& maximum capacity. 

One commenter suggested revising 

§116.711(6) to chrify that an applicant must 

demmte full compliance with all appliible rules and statutory requirements before a 

perma can be issued. The commenter remmended that $1 16.71 l(9) be revised to clarify 

that monituing will not replace modeling and 

that modeling will be requied in all appropriate cases. 

Section 11 6.71 l(1) requies a &monsbpation 

thal an applii will comply with all rules and 

regulations of the TNRCC and with the intent 

of the TCAA. The Comm'sion feels that acceptable monituing data is a valid mechanism for demonstrating apprwable irrpacts. 

The proposed hnguage does not pedude 

the Commission from requesting modeling 

when appropiate. 

A commenter suggested revising 

51 16.71 l(10) to chrify that emission limits 

can be aslablished on a pollutant-by-pollutant 

basis as s~ecified by the amticant. Atso. the 

comment& contend& that emission ratecalculations do nd need to be povided for uw 

modified swrces under application for an 

amendment. 

The soggested change is nd necessary or 

appropiate. Section 11 6.71 l(10) specifies information to be included in a permit application. Section 116.716 dearty povides thal 

both emission caps and individual emission 

Emilations will be established for spea'hc pol 

Mants. The TNRCC agees. thal emission 

rate calculations do not need to be pwided 

for unrnodi soucas. Hmever. information 

may be requested to demonstrate that these 

sarrces are nd being modified. Therefore, 

the Cmmiss'in opposes the suggested hnguage that would pedude requesting such 

inlormation. 

The following discussion adckesses comments regarding 91 16.71 5. General and Spe 

ciaf Condiions. 

A commenter suggested revising $1 16.71 5 to 

require the speaal pcwisiom of a permit to 

specify the terms for readjustment of an emissions cap whenever a unit is remwed from 

sewice while under schedule to install emission controls. 

The Commission agees that the tenns for 

readjustment of the cap should appear in the 

special conditions of the permit and will indude such terms on a permit-by-permit basis. 

However, if they are nd included in a permit, 

the rule language adckesses how the Commission intends to readjust the cap. The 

amount of reduction in the emission cap and 

the length of time of the readjustment should 

not be left to negotiations on a case-by-case 

basis. No change to the paposed rule lanpuape is needed. 

One commenter made several comments regarding $1 16.71 5: in subsection (a). define 

significant impad and make executive diector appwal and public input mandatory 

rather than optional; include local pogams in 

the startup ndifiion in slrbsection (c)(3); 

povide for ptblic input in determining equivalency of methods in subsection (c)(5); 

redkeeping in suMm (c)(6) should be 

required for five years; there was no table 

povided as referenced in subsection (c)O; 

and define reasonable times in slrbsection 

(c)(10). 

Due to the number of compounds and variety 

of arcurnstances that can be involved, it is 

impossible to define significant impact with 

any more speafcity. All permits do rol requie a special condition restricting the use of 

standard exemptions or standard permits beyond the restriction on the use of a standard 

exemption in 51 16.72l(d). Standard exew 

tions and standard permits are subject to 

public ndice duing rulemaking. The rule language does state that aU bcal pogams will 

be notified of start-up conditions. The Commission will review and perform the evaluations of equivalency of methods. The twoyear requirement for recordteeping is being 

kepl to maintain consistency wlh current 

pactices. The agency maintains its om recads regarding the compliance history of a 

facility that are suffiaent fa the compliance 

history review. The 'Emission SourcesEmissions Caps and Individual Emission Limitations' table is not part of the rule bnguage, 

but will be included in a final permit. The 

TCAA, 982.015 povides that the TNRCC 

may enter public or private poperty at a 

reasonable time to condud inspections and 

investigations rebted to ai qualiy. 

A commenter suggested revising 

TY16.71 5(c)(6) by adding 'required' before 

'information' in the bst sentence. 

The Commission feels the change would not 

enhance the paragaph's intent and, possbly 

could confuse the reader. 

A commenter suggested revising $1 16.71 6@) 

(erroneously staled as $1 16. 71q6)) to alkw 

individual emission limitations to be estab 

liihed for any emission unit cwered by the 

permit. This may he@ alleviate the concerns 

that the new 40 CFR Part 64 will requie 

enhanced monitmng on all sources within an 

emiss'in cap if the cap is major for a given 

pollutant. I! would ancm an epplicant to arrange a souce cap for a number of small 

sources that would nd sum up to the thesh 

old that triggers enhanced monitoring. 

Based on the Commission's current understanding of the pqxsed requirements in 40 

CFR Part 64, this comment does not accurately rekd the poposed requiements for 

enhanced monitoring. Thus, the Commission 

does rol believe tM the suggested changes 

are necessary. 

One comrnenter suggested revising 

$116.715(~)(8) to be consistent with the recommended changes to $1 16.716(c), i.e., 

alkwing shutdcmns in excess of 12 months 

without readjusting the cap. Another 

commenter stated that paragaph (8) is an 

essential part of the rules and must be retained. 

These mivisions were intended to ackkess 

separale issues and do nd need to be revised fa consistency. Section 116.715(c)(8) 

adbesses readjustment of an emission cap 

for a faany sllbjecl to scheduled installation 

of controls. This paragraph &jesses the 

diierence in the em'sions cap before-and 

afler instalhtion of emission controls. Sub 

section (c) addresses adjustments to the 

emission cap for shutdcmns thal exceed 12 

month' duration. The Commissiin agrees 

with the comment that paragaph (8) should 

be retained in the adopled rule. 

The following dscussion adckesses comments regarding 5116.716, Emission Caps 

and Individual Emission Limilations. 

Two commenters suggested deleting 

§116.716@). The sentence couki be interpreted to diilcm increases in emissions 

above actual levels even if those increases 

are wilhin the emission cap or individual aC 

kwable levels. That wwki be inconsistent 

with the concept of a flexble permit. Since a 

facility un&r flexble permit will be required to 

meet BACT and impacts review, there should 

be no concern about 'emission levefs appre 

We for the pqxsed mots.' 

The intent of the last sentence of 51 16.71 6@) 

is to place addiiional resbictions on a facility 

when proposed controls are not BACT for the 

facility when operated at its maximum paler+ 

tial capacity. For example, BACT for a sulfu 

reawery unit (SRU) operating at more than 

two long tons of suHu per day is currently 

more sbingent than for an SRU operating at 

less than two bng tons of sulfur per day. If an 

applicant represented expected maximum 

Sulfu poduction of less than two long tons 

per day. TNRCC would include an indivaual 

emission limitation for the SRU to ensue that 

pcduction cwld nd exceed two long tons of 

sulfu per day without instalbtion of amrocxiate ccatrd t&hnotcgy. ~dditiona~ resi&iins 

cwld also be amromiate when unaccedable 

inpacts would ;&un if the facility used a0 of 

the fkxik'lity prwided by the cap. Such an 

individual ernission limitation wwki not necessarily pohbi an increase in actual emissions, although it would prohbii an increase 

in em'65ions above the individual em'ssion 

limitation which could pevent that specifc 

facility from using any available emissions 

under the emission cap. 

A commenter suggested adding language to 

51 16.71 6@) that would ahan applicant to 

timil its expected maximum capacity if the 

- 

19 TexReg 9364 No~ember 25, 1994 Tern Register + 
applicant desires to use that capacity to calculate an ird'Nidual emission limit. 

The expected maximum capacity of a facility 

is determined in pad by the planned operation d thal fadlity and L totalty within the 

contrd 01 the eppkant. (See the raspon- to 

the preceding comment fa the intent of this 

language.) 

One commenter suggesfed revising 

$1 16.71 6(c) to require that the emissions cap 

be edjuled &nward when rules and regulations mandate new mhok on souces under the cap. Another commenter suggested 

revising Subsection (c) to albw only one 

month fa temporary shdwns unless the 

permittee can democskate that there is no 

anemalive to a bnger shutdorm. Accading to 

that mmenter, the existing cap shouH mty 

be retained for a minimal shutdwn, and in no 

even1 should il exlend beyond a 12-month 

shutdown. A mmenter suggested a revision 

to subsection (c) fa cbFification that the 

emission cap is adjusted only for a new 

wee adbed unjer the cap, and stated that 

existing sources in the cap & nu requie 

mod'iion. 

The Commission has added a new subsection (e) to chrify the requiement to adjust the 

emission cap when a facilily, under a flexible 

permit, ir aH&ed by a cha~e to an existing 

regulation. As stated in the reqmme to the 

issues list pation of this peamble, the Commission has considered an ol the comments 

regarding the tempaary shutdwn issue and 

berives that 12 months is an appropriale 

period for a shvldown albwance. In most 

cases when a new faciMy is ded, the emission cap will be increased as suggested by 

the cmmerder. Hcwever, the currenl language povides the Commission the needed 

flexbilii to adjust the cap as apprgriate lo 

account fa all posrbk cases. 

One commenter suggested revising 

$116.716(d) by adding the phase 'FIX the 

specific ic contaminants and faciliiies with 

povLiis for operational or physical nexibility' at Ihe beginning of the first senlence. 

All pollutants brought into the fkxble permit 

will be afforded cperalional ard physical flea'- 

tiri. Fa those polllnants for which flexbilly 

is not wgM, they will remain outside the 

fkxble permit. Therefore. the Cornmisson 

bermves the prop~~ed change is nU needed. 

A commenter staled thal 91 16.71 6 does not 

address the issue of shul lerm emission 

caps which is mentioned in the preamble. 

This issue should be chrified in the rule. 

The rule allo~s fa the use of any units or 

averaging times that are appcopriale fa the 

compounds and resulting OH-site impacts. 

The Commission expects to continue the current practice of having bdh shorl tm and 

bng term emission limits. 

One commenter laled that the language in 

$1 16.716(d) seems to require installatiion of a 

level of controls referred to as 'BACT pllrs 

9.0%: This may become tw stringent a requiement for ober and grandlathed units. 

This appears to be a requiement to inslall 

BACT on all fadlilies induded in the flexible 

perml. Such a requiement would impose 

such an unreasonable economic burden on 

an appliit, that a fkxble permit may not be 

a viable option. This requiement should be 

reevaluated within one year of adoption lo 

delermine ii I is reasonable. Anolher 

commenter stated Ihe crpposite position that 

the 9.0% emission atbwancs in slrbsedion 

(d) is too high. The commenter believes thal 

the cumuwwe impads lor a major source 

could be geat. 

The Lxble pennits progam is an optional 

pogam that may nd be suitable for an faaliities The TCAA requies BACT for all new 

and modified faciliiies. These rules alow for 

the calculation of an emissions cap that indudes an insignifit emissions fada to 

provide Rexbility. The applicant, then, may 

propose conhds necessary to meet that cap. 

A fundamental premise of this procsss is that 

kxibifi would be given in exchange fa a ' 

well-controlled facili. In response to the 

comments by the last commenter, the insig 

nifii emission fador may nu exceed 

9.0%. The impads will be evaluated at the 

final emisu' cap total. An insignifimnt emissim factor will be adjusled accadingly if the 

heatth effects review diiates lower emissions. The MRCC awes thal cumulative 

impads cwld be signilkant and lhat is why 

ell facflities will be evalualed under the fiexible permit to ensure acceptable offsite impads. 

The fdlowinq discussion addresses corn 

ments reganjig $1 16.717, Implementation 

Schedule for Addilionat Contrds. 

A commenter stated that the emission cap 

adjuslment in s116.717 should be mandatory, 

nd optional. 

Secliin 11 6.71 5(c)(8) requkes an adjustment 

to an emiuion cap Iw the shutdown of a 

facility subject to a schedule lo install contrds. This prwisiin aliws the Exeartive Drmor addlionat authority to phce coFdiions 

in the permit to eddess these slualiom. 

One commenter suggested revising $1 16.717 

by adding a statement that prohibits banking, 

sale, andlu netting of emission reductions 

made under a Rexble permit. The Mwnmenler 

argued thal such adions woukl be inappopriale. especially in pnattainment areas, for a 

poQam which is allegedly designed to re 

duce emissions. 

The Commku'on does not agree with the 

suggesled change. The Cornm.~ssion leek 

that it is nU appopiate to heal emission 

reductions obtained thrwgh the flexible permit process any differently than those * 

tained under the current reguhtay process. 

Addiionally, if the reductions meel the aedit- 

&ili aileria specified in applicable regulatins, the reductions shwld be available for 

use. 

The following discussion addresses corn 

ments rewing $1 16.71 8, Significant Emission Increase. 

A commenter supgested revising $1 16.718 

and §116.721@) to allw replacement fatirk 

ties which utilize BACT to be construcled 

under the flexble permit. 

New facilles. whelm they are repbcemenl 

facilities u nu, may be auihorized under a 

IkxiMe permit without Ihe suggesled revk 

~WS. AS with any new facilily, a repbcement 

fadlity must meet all ol the applicable requiements of this Subcha@er, including the use of 

BACT, to obtain a flexible pennit. 

One cm'menter suggested revising 51 16.718 

,to asswe consistency with the requiemenl to 

poted puMc health that is stated in 

$1 16.71 l(1). Seclin 116.718 seems lo imply 

that the requiement to prded public health is 

only biggered il an emission increase exceeds the permit albwaMe by a 'significant' 

amount. The commenter recommended the 

TNRCC consider using a lmer baseline lor 

determining signifcant inaeases whenever 

modeling includes emissions that are bebw 

permil abwables. 

The rule requies thal impads be evaluated 

at the prcpwid emission cap which includes 

an insignifmt emissions facfa. Thus, any 

increase in emiss'ins above the emksion 

cap or individual em*&ion limitation is a sipnifit increase which would requie a perh 

amendment and reevaluation of the irrpads 

and demonstration thal applicable PSD and 

nonanainment (NA) resuiemenls are met. 

The Commksii believes that all applicable 

PSDMA requirements will be met under 

these rules. Hwever, the Cwnmivion will 

review the rule Mher ard inliate additional 

rulemaking as necessary. 

A commenter suggested defining insignificant 

in §116.718 with a numerical figure. 

Gwen the variety of facilities and pollulanls 

anticpated to be authaized through flexible 

permits, it is impadical to define insignificant 

in terms of a numerical value. 

The following discussion dresses comments regarding $1 16.721, Amendments and 

Alterations. 

A commenter staled thal permit atterations in 

$1 16.721 should nU be alhed without pub 

fic nUifi.in. Also, !he cumuhi'ie impacts 

ol muKple alterations should be edded to 

determine if &itioMI mntrok are needed. 

Paragaph (3) should require BACT. 

Alterations allw minor changes to permits 

that do nu increase emksions, change the 

method of control, or change the charadff of 

emissions; therefae, public notice and conhol techndogy review are nd necessary. Because of Ihe minor nat~re 01 the alteration 

process and since the emissions cap cannot 

be exceeded. CUm~htive impads and additional controls are not wananted duing the 

review of an alteration. 

A commenter suggested revising $1 16.721@) 

to specify that facility alterations which may 

change a general or special provision do not 

require @a approval unless they 'aduerself 

affect control equ'pment perlormance. 

The cment language provides the Executive 

Director the -unity to rwiew a change to 

a facility made under a perma alteration to 

determine if the change 'adverself aHeds 

control equipment pedonnance. Addiionalty. 

permit cmdiiions may need b be revised by 

the permit engineer to refled the change. 

One commenter suggesled revising 

§116.721(d) to albw the use of standard exemptions under a Lxible permit. 

The Commission dkagees with the 

commenlcr's sugpestion. See the response 

+ MOPTED RULES November 25, 1994 19 TexReg 9365 
to the second comment in the general comments eddressed at the beginning of this peamble. 

A commenter slated that $1 16.721(c) and (d) 

are examples of the diKculty TNRCC will 

have in enforcing the flexible permit rules. 

The TNRCC should explain to the public hw 

enforcement and emiuions inventories will 

be accomplished for facilitiw operating under 

a flexible permit. Speafc examples should be 

given. 

The Commission expects to have better took 

for enforcement, such as recordkeeping and 

emissions monitaing, under the tlexible perml rules, and the compliance staff will continue to enforce the rules as they have in the 

pest. The hdder of a Rexble pml will be 

required to maintain data suKcient to demonstrate compliance with the emissions cap and 

individual emission limitations contained in 

the fkable permit, and this information will be 

available to TNRCC field siafl andlor local 

programs. 

One mmenter suggested revising 51 16.721 

to clarity the time frame for response by 

TNRCC to a permit amendment or alteration 

application. The commenter recommended a 

response time of seven to 14 days. Also, the 

commenter suggested the rule specify 

whether any penalties are assessed for exceeding the limitations for an alteration CW 

amendment. 

The TNRCC is currently developing poposed 

rules in a new Chapler 281 that will address 

time frames for permit review. H would be 

duplicaliive to address the same issues within 

this rulemaking. Whether penalties are assessed for a violation is determined on a 

caseby-case basis by the enforcement stafl. 

Typically, the stafl responds to all idleration 

requests; however, it is the permit holdeZs 

responsibilily to verity individual compliance 

with all applicable rules and regulations. 

The following discussion addresses comments regarding $1 16.750, Flexble Permit 

Fee. 

A cwnmenter stated that, in $116.750, fees 

should be charged for alterations, wnership 

changes, focalion changes, and standard exemptions to recover slafl resources for these 

activities. 

The Commission has developed the flexible 

permit fee structure to be consistent with the 

existing fee system for new source review 

permits. 

The following discussion addresses 

$1 16.760. Flexible Permit Renewal. 

A commenter suggested revising $1 16.760 to 

requre adjuslment, at renewal, of emissions 

to 10% wer the adual maximum emissions 

that occurred duing the period prior to renewal. 

This issue was addressed in the portion of 

this preamble regarding responses to the 

TNRCC issues lit. 

Subchapter A. Definitions 

30 TAC $116.13 

The new section is adopted under the Texas 

Health and Safety Code. Texas Clean Ai Ad 

(TCAA), 982.017, which povides TNRCC 

with the aulhority to edop( rules consistent 

with the @icy and purposes of the TCAA. 

$116.13. Flexible Permif Definitions. The 

following words and terms. when used in 

this chapter. shall have the following meanings, unless the context clearly indicates 

othenvise. 

Emission cap-Emission limit for a 

specific air contaminant based on total 

emissions of that pollutant adjusted by an 

Insignificant Emissions Factor from all 

sources that are included in a flexible permit 

Expected maximum capacity-The 

maximum capacity of a facility according to 

its physical and operational design and 

planned operation. 

Individual, emission limitation-Emission limit for a specific air contaminant not covered by an emission cap for 

an individual facility adjusted by an Insignificant Emissions Factor. 

This agency hereby certifies that the rule as 

adopled has been reviewed by legal counsel 

and found to be a valid exerase of the agency's authority. 

Issued in Austin. Texas. on. November 16, 

1994. 

TRD-9451'071 Mary Ruth Holder 

Dlmdor. Lqd DMsbn 

Toxas Naurd Rosourco . . CoI-Se~atbn 

Commibsbn 

Efledive date: December 8, 1994 

Prcrposal -publication date: September 20, 

1994 

For Mher information, please call: (512) 

2341966 

Subchapter B. New Source 

Review Permits 

Permit Application 

30 TAC $116.110 

The amendment is adopled under the Texas 

Health and Safety Code. Texas Clean Air Act 

(TCAA), Q82.017, which povides TNRCC 

with the authaity to adopt rules consistent 

with the @icy and rwpwes of the TCAA. 

This agency hereby certifies that the rule as 

adopled has been reviewed by legal counsel 

and found to be a valid exerase of the agency's authaity. 

Iswed in Austin. Texas. on November 16, 

1994. 

TRD-9451072 Mary Ruth Holder 

Diredor. Lqd DMsion 

Toxas Naurd Resource 

Comervatbn 

Commkbn 

Efledive date: December 8, 1994 

Proposal publiion date: September 20. 

1994 

For fulher information, please call: (512) 

2341966 

Subchapter G. Flexible Permits 

Permit Application 

30 TAC $6116.710, 116.711, 

116.714-116.718, 116.720-116.722, ' (- 116.730, 116.740, 116.750, , 

116.760 

The new sedions are poposed under the 

Texas HeaHh and Safety Code, Texas Clean 

Air Act (TCAA). 982.017. which povides . 

TNRCC with the authority to adopt rules consistent with the poky end ptqks of the 

TCAA. 

$1 16.710. Applicabilify. . . 

(a) Flexible permit. A person. may 

obtain a flexible permit which allows for 

physical or operational changes as provided 

by this subchapter as an alternative to obtaining a new source review pennit under 

5116.110 of this title (relating td Applicability), or in lieu of amending a? existing 

permit under 5116.116 of this title (relating , 

to Amendments and Alterations). A person - 

may obtain a flexible pennit pursuant to . 

5116.711 of this title (relating to Flexible 

Permit Application) for a facility. group of 

facilities. or account before any actual work 

is begun. provided however: 

(1) only one flexible permit may 

be issued at an account site; 

(2) modifications to existing facilities covered by a flexible permit may be 

handled through the amendment of an existing flexible permit; 

(3) permitting of a new facility 

may behandled through the amendment of 

a flexible pennit; and 

(4) a flexible permit may not 

cover sources at more than one account site. 

(b) Operations certification. Any 

person who obtains a flexible permit under 

this subchapter shall comply with: 

5116.110(b) of this title.. ' . 

(c) Change in ownership. The' new. . 

owner of a facility. group of facilities. or 

account shall comply with 51 16.11qc) of 

this title. provided however. that all facilities covered by a flexible permit must 

change ownership at the same the 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 Texas Natural 

Resource Conservation Commis$on 

(TNRCC). After t!!e sale 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 flexible permit and all rules bd regulations of 

the TNRCC. 

- 

19 TexReg 9366 November 25, 1994 Texas Register + 
(d) Submittal under seal of registered professional engineer. All applications 

for a flexible permit or flexible Dumit 

amendment shdi comply with $116.i10(d) 

of this title. 

(el Responsibii for flexible permit application The owner of the facility. 

group of fadlities. or account or the operator of the fadlity, group of facilities. or 

sccount who is authorized to act for the 

owner is responsible for complying with 

this section, except as provided by subsection (c) of this section. 

$1 16.71 1. Flexible Pernit Application. Any application for a new flexible 

permit or flexible permit amendment must 

include a completed Form PI-1 General Ap 

plication. The Form PI-1 must be signed by 

an authorized rcgre~~tative af the applicant. Tht Form PI-1 specifics additional 

support information which must be provided before the application is deemed complete. fn order to be granted a flexible 

permit or flexible permit amendment the 

owner or operator of the proposed facility 

shall submit information to the Texas Natural Resource Conservation Commission . (TNRCC) which demonstrates that all of the 

following are met 

(1) Protection of public health 

and welfare. The emissions from the pro- 

) 

posed facility, group of facilities, or account 

as dettrmined pursuant to 8116.716 of this 

title (relating to Emission Csps and Mvidual Emission Limitations), will comply with 

all rules and regulations of the TMCC and 

with the intent of the Texas Clean Aii Act 

(TCAA), including protection of the health 

and physical property of the people. In considezing the issuance of a flexible permit for 

construction or modification of any facility. 

group of fadlitits, or account within 3.000 

feet or less of an elementary, junior 

higlslmiddle, or senior high school. the 

TNRCC shall consider any possible adverse 

short-tum or long-term side effects that an 

air contaminant or nuisance odor from the 

facility. group of facilities, or account may 

have on the individuals attending thest 

school facilities. 

(2) Measurement of emissions. 

The proposed fscility, group of facilities. or 

account will have provisions for measuring 

the emission of air contaminants as determined by the Executive Dimtor. This may 

include the installation of sampling ports on 

exhaust slacks and construction of sampling 

platforms in accordance with guidelines in 

the TNRCC "Compliance Sampling Manual." 

(3) Best Available Conk01 

Technology (BAO. The proposed facility. ) proup of facilities. or acraut d utike 

BACT, with consideration given to the 

technical practicability and economic reasonablencss of reducing or eliminahg the 

emissions from the facility on a proposed 

facility. group of facilities. or account basis. 

Control technology beyond BAn may be 

used on certain facilities to provide the 

mission reductions necessary to comply 

with this requirement on a group of facilitics at account basis, provided however. 

that the existing level of control may not be 

ltsstocd for any facility. For new facilities. 

the use of BACT shall be dunonstrated for 

the individual facility. 

(4) Fedual New Source Pcrformance Standuds (NSPS). The emissions 

from each affected facility as defined in 40 

Code of Fcderal Regulations (CFR). Part 60 

will meet at least the rcquirunents of any 

applicable NSPS as listed wdu Title 40 

CFR Part 60. promulgated by the United 

States Environmental Rottction Agency 

(EPA) pursuant to authority granted under 

the Federal Clean Air Act (FCAA). 51 11. 

as amended. 

(5) National Emission Standards 

for Hazardous Air Pollutants (NJ3HAPS) 

and Maximum Achievable Conk01 Technology (MAq. The missions from txch facility as dcfmd in 40 CFR Part 61 will 

meet at least the requirements of any applicable NESHAPS. as listed under 40 CFR 

Part 61. or any MACT'standard. promulgated by EPA pursuant to authority granted 

under the FCAA, 9112, as amended. 

(6) Performance demonstration. 

'Ihe proposed facility, group of facilities, or 

~ccount will achieve the performance specified in the flexible permit application The 

applicant may be required to submit dditional engineering data after a flexible permit has been issued in order to demonskate 

further that the proposed facility. group of 

facilities, or account will achieve the performance specified in the flexible permit In 

addition. initial compliance testing with ongoing compliance detemtined through engineering calculations based on measured 

process variables. parametric or predictive 

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

(7) Nonattainment review. If the 

proposed facility, group of facilitk, or account is located in a nonattainment area. 

each facility shall comply with all qplicable requirements under the undesignattd 

head concerning nonattainrnent review in 

Subchapter B of this chapter. 

(8) Prevention of Significant 

Deterioration (PSD) review. If the proposed 

facility. group of facilities, or account is 

locatcd in an Bttainment am, each facility 

shall comply with all applicable requirements under the undwignated head concerning PSD in Subchapttr B of this chapter. 

(9) Air dispersion modeling or 

ambient monitoring. Computerized air dispersion modeling ador ambient monitoring may be required by the TNRCC Permits 

Rogram to determine the air quality impacts from the facility, group of facilities. 

or account. 

(10) Application content. In addition to any other requirements of this 

chapter. the applicant shall: 

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

(B) identify each facility to 

be included in the flexible pumit; 

(C) identify each source of 

emissions to be included in the flexible 

permit and for each source of emissions 

iden* the Emission Point Number (EPN) 

and the air contaminants unitted; 

(D) for each emission cap. 

iden* all associated EPNs and provide 

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

control technology; 

(E) for each individual unission limitation, identify the EPN and provide emission rate calculations based on the 

expected maximum capacity and the proposed control technology. 

. (11) Proposed control technology and compliance demonstration. The applicant shall specify the control technology 

proposed for each unit to meet the unission 

cap and demonstrate compliance with all 

emission caps at expected maximum production capacity. 

2116.716. Emission Caps and Individual 

Emission Limirarions. 

(a) Emission caps. Each emission 

cap for a specific pollutant will be estab 

lished as follows: 

(1) emissions will be calculated 

for each facility based on application of 

cumnt Best Available Control Technology 

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 flexible permit. 

In addition. an individual mission 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 pment a facility from exceading unission levels 

appropriate for Ihe proposed controls. 

1 + ADOPTED RULES November 25, 1994 19 TexReg 9367 
(c) Readjustment of emission cap. 

If a fdty subject to an emission cap is 

shut down for a period longer than 12 

months, the emission cap shall be read. 

justed 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 flexible pennit. an emission cap shall be 

adjusted by mdfybg the emissions cap 

accordingly. 

(d) Insi,dicant emission factor. 

'Ihe emission caps and individual emissions 

limitation calculated pursuant to this section 

may include an Insignificant Emissions Factor which does not exceed 9.0% of the total 

emission cap or individual emission limitation. 

(e) An emission cap will be readjusted downward for any facility covered by 

a flexible permit if that facility becomes 

subject to any new state or federal regulation which would lower emissions or require an emission reduction. 'Ihe adjustment 

will be made at the time the flexible permit 

is amended or altered. If an amendment to a 

flexible permit is not required to meet the 

new regulation. then within 60 days of making the change. the permittee must submit a 

request to alter the permit and include information desaibing how compliance with the 

new requirement will be demonstrated. 

This agency hereby certifies that the rule as 

adopled has been reviewed by legal counsel 

and found to be a vald exercise of the agency's aulhuity. 

Issued in Austin, Texas, on Nwember 16, 

1994. 

TRD-9451073 Mary Rulh Holder 

Direaor. Legal Division 

Texas Nalural Rebourn 

Conservation 

Cornrnissbn 

Effective date: December 8, 1994 

Proposal pbrdion date: Seplerrber 20. 

1994 

For Mher information, please call: (512) 

2391 966 

+ + + 

Chapter 290. Water Hygiene 

Drinking Water Standards 

Governing Drinking Water 

Quality and Reporting Requirements for Public Water 

Supply Systems 

30 TAC 68290.109, 290.113, 

290.119, 290.120 

The Texas Natural Resouce Conservation 

Commission (Cornrnission) adopts amendments to 55290.109, 290.113. 290.119. and 

new 5290.120, concerning &inking water 

standards, applilcable reporting requiemnts 

for pblic water systems (PWS) and lead and 

cow standards. Sedions 290.109, 

290.113, and 290.119 are adopled without 

changes to the proposed text and will nd be 

republished. Sedion 290.120 is adopted with 

changes to the proposed text as publinhed in 

the Seplernber 23, 1994. issue of Ihe Texas 

Register (1 9 TexReg 7495). 

The Commission received comment' lelters 

from the US EPA Region 6 Water Supply 

Branch. The Light Company (Houston Lighting and Power). Dallas Water Utiliies, Fort 

Worth Water Department and Harris County 

Municipal Utility District Nurrber 255. The 

comment is adckessed in this order concerning several sectiom of the proposal. 

One commenter recommended the fdkwing 

changes in ader to bring the state proposed 

standards into conpliance with federal reguhtions. 

The commenter nded that the proposed rule 

must indicate that large water systerns (serving mae than 50,000 people) meet State 

established water quality parameters befae 

being &dared to have optimized mosion 

contrd. The Cornrnission agees and has 

modified §290.120(h)(4)(G) accadingly. 

One commenter noted that the prcposed rule 

did not contain hnguage to allow water systems that continue to exceed lead and copper 

action levek to be in conpliance if they operate within State sppcified water quality parameters. The commission agrees and has 

modified §290.120(h)(4)(H) accordingly. 

One commenter pointed oul that the State 

rule rnust contain hng~age stating that the 

water system is requied to meet specified 

water qudiy parameters in each monitoring 

period in wder to remain in compliance. Section 290.120(9 (l)(K) has been so modified. 

One commenter notes that 5290.120(9(2)(8) 

rnust not only require heatment of source 

water but al& s&cii a schedule for this 

activity. The commission agees ard the section has been so mcdified. 

One commenter contends that $290.1 200(3) 

rnust contain specific hnguage defining the 

term 'conhd' in rehtion to lead service lines 

that are located within a water system. Language used in the federal rule has been incorporated into this section. 

One commenter noles that 5290.120(1)(1)(E) 

does nd contain the phrase 'samples shall 

be representative of water quality throughout 

the diitrbulion systern'. This section has 

been modified accadingly. 

One commenter feek that a word has been 

omitted from $290.109(a)m(D) between 'detection of a contaminant' and 'be wanted 

when, in fact, the proposed wording in bold 

face type is to be deleted from the text, resuning in a complete statement. No change is 

necessary. 

One commenter contends that mall and medium water systems could become 

noncompliant with 5290.120(9(1)(8) because 

of inconsistencies in the wading found in the 

proposed rule and that of c~rrent correspondence used by the agency to notify systems 

as to when they must begin waler quality 

parameter monilaing following a leadlcopper 

exceedance. The Commission awees with 

the proposal and appropiate hnguage 

changes to the rule have been made. 

One commnter feels that the action level 

printed for copper in the last line of 

§290.120(a)(3) is not corred. The commission agrees and has conected the typograph 

ical ma. 

One commenter nded that a change is requied in 5290.120(e)(2) to chrify the frequency and Ihe number of sample sets 

requied duing reduced monitoring. The 

Commission agees and appropiale word'ig 

has been drafled into the rule. 

One commenter feels that it is possble fa 

public education regarding the exceedance of 

a lead or copper action level to be requied 

before results of confirmation samprig can 

be obtained. Since the proposed language of 

$290. 120(e)(4) allows 60 days fdbwing the 

exceedance notification in which to .conduct 

public education, and since this time hame is 

speafied in the federal rule, it is recommended that no wading change be made 

because adequate time for rece'pt of confirmation results is provided. 

One cwnmenter feek that language in 

$290.1 20(1)(1)(B) requires darifiiion since it 

appears that water quality parameter monitoring could be required of a water system prior 

to official notifidion by the Commission that 

an action lwel has been exceeded. Sice the 

notification of adion level exceedance a nonexceedance accompanies the mailing of anaC 

ysis results to each system, it is unlkely that 

this situation could arise. This concern was 

addressed as part of a previous comment 

and no further wading change is reccnnmended. 

One commnter again refers to the hnguage 

of 5290.120(9(1)(B) relating to the point in 

time afler a system has been notified of a 

lead a copper action level exceedance at 

which the systern is required to begin water 

quari parameter monitoring. This concern 

was previwsly meded and no further 

change in wading is necessary. 

One commenter notes a typographical emor 

in the System Sie column of Table 3 located 

in 5290.120(9(1)@). This notation is coned 

and a change has been made. 

One commenter noles that procedues fa 

delivery of @tic education materials by mntransient non-community water systems as 

ouilined in 5290. 120(g)(3) is coned only for 

community water systems and the citation 

refening to the federal rule should be 

changed to 40 Code of Federal Regulations. 

§141.85(~)(4). The requiemnts d&bed in 

that sedion of the federal rule are appropriate 

for non-hansient non-community water systems and this change has been made. 

One commenler Cels that chrircation of 

$?90.120(k)(l)(B) is necessary to distinguish 

between first &aw tap monitoiing and dishC 

bulion point-of-entry monitoring. The Commission agrees with this assertion and 

wording in the sedion has been amended to 

clarify this point. 

One commenter nded that m mention was 

made of the manner in Which new water 

systems ore to be broogM into cmplh~e 

- 

19 TerReg 9368 November 25, 1994 Texas Register + 
Legislative Budget Board 

Executive and Legislative Budget Office 

Joint Budget Hearing Schedule 

Appropriations Requests for the 

1996-1997 Biennium (For the period 

of August 29-September 2, 1994) 

Agency D&me Place: National Guard Armory Board 

August 29, 1994. 8:30 a.m.. National Guard Armory 

Board. Camp Mabry. Building 64, Board Room. Austin; 

University of Texas Systun. University of Texas at 

Austin. Univusity of Toras of the Permian Basin. Univtrsity of Texas at El Paso. August 29. 1994. 9: 00 a.m.. 

University of Tocas Systm Office, Ashbel Smith Hall. 

Sand Floor Conference Room. 201 West Seventh Sheet. 

Austin; Vetcrans Commission. August. 29. 1994. 10:00 

am.. Room 101. John H. Reagan Building. 105 West 15th 

Street. Austin; Funeral Service Commission, August 29. 

1994. 11:00 a.m.. Room 103. John H. Reagan Building. 

105 West 15th Street. Austin; Library and Archives Commission. August 30. 1994. 9:00 a.m.. Room 101. John H. 

Reagan Building. 105 West 15th Street, Austin; Board of 

Tax Professional Examiners. August. 30.1994.10:00 a.m.. 

Room 103. John H. Reagan Building. 105 West 15th 

Street. Austin; Offii of the Public Utility Counsel. August 30. 1994. 10:00 a.m.. Room 109. John H. Reagan 

Building. 105 West 15th Street. Austin; Historical Com- . mission. August 30. 1W. 1:30 p.m.. Room 103. John H. 

Reagan Building. 105 West 15th Street. Austin. 

Agency DaWl"iie Pk: University of Houston System. - 

University of Houston. University of Houston-Downtown. 

University of Houston-Clear Late. University of HoustonVictoria. August 31. 1994. 8:30 a.m.. Univusity of Houston. Hilton Hotel. Room 210. Houston; Commission on 

the Arts. August 31. 1994,900 a.m.. Room 101. John H 

Reagan Building. 105 West 15th Street. Austin; Public 

Fiance Authority. August 31.1994.900 a.m.. Room 109. 

John H. Rcagan Building. 105 West 15th Street. Austin; 

Credit Union Department August 31. 1W. 9:00 a.m.. 

Room 106. John H. Reagan Building. 105 West 15th 

Street. Austin Racing Commission. August 31.1994.2:00 

pm.. Capitol Extension. State Capitol Building. Room 

E1.026, Austin; Office of Administrative Hearings. August 

31.1994,2:00 pm.. Room 106. John H. Reagan Building. 

105 West 15th Street. Austin, Texas Southem University. 

August 31, 1994. 3:00 p.m.. Texas Southern Univenity. 

3100 Clebume Avenue. Houston; Reservation Board, Seg 

tunk 1. 1994. 9:00 a.m.. Room 103. John H. Reagan 

Building. 105 West 15th Street. Austin. 

Agency Da.WTime Placc. Univusity of Texas M.D. Anderson Cancer Center. University of Texas Medical 

Branch. Univusity of Texas Health Scienm at Houston. 

September 1.1994.9:00 am.. UT M.D. Anderson Cancer 

bkr. 1100 Holcombe Boulevard. Tenth Floor. Copeland 

Coafucncc Room. Houston Real Estate Commission. Septunbu 1. 1994. 10:W a.m.. Room 101. John H. Reagan 

Building. 105 West 15th Street. Austin; Appraiser Licwsing and CcrlSication Board. Septunbu 1. 1994. 200 p.m.. 

Room 101. John H. Reagan Building. 105 West 15th 

Street. Austin; Texas Commission on Law Enforcement 

Offk Standards and Education. September 1, 1994.2:00 

pm.. Room 106. John H. Reagan Building. 105 Wwt 15th 

Street. Austin; Public Utility Commission. Septernbu 2, 

1994, 1: 30 p.m.. Room 103. John H &an Building. 

105 West 15th Street. Austin. 

Issued in Austin, Texas. on August 19, 1994. 

TRDW6874 Don Oreen 

Speclal AmbW 

LeglrLLlvo Budgot Board 

Filed: August 19, 1944 

+ + + 

Texas Natural Resource Conservation 

Commission 

Correction of Errors 

The Texas Natural Resource Conswation Commission 

adopted amendments to 551 16.110. 116.1 15.116.1 16. The 

rules appeared in the August 2. 1994. issue of the Tcuu 

Register (19 TexRcg 5965). 

Due to submission in 6116.1 15(b). the two'refmcts to 

the date of March 31, 1994. should instead cite the date 

August 16. 1994. 

The Texas Natural Resource Cowation Commission 

adopted the qeal to 5114.11. The rule appeared in the 

August 2. 1994. issue of the Tuar Register (19 TwtReg 

5906). 

In the, preamble the word "heavyduty" should read "heavyduty". 

Due to publishing error in 5114.11(g)(l)(A) the text 

should read "(A) Light-Duty Vehicle Ekhaust Emission 

Standards 

Egun 1: 30 TAC 51 14.1 l(g)(l)(A)" and the comaponding table should have been labeled as Fm 1: 30 TAC 

5114.ll(g)(l)(A). 

Due to publishing mr in 5114.ll(g)(l)(B) the twd 

should read "(B) NMOG Exhaust Emission Standards for 

F%ldble and Dual-Pueled Vehicles 

Fm 230 TAC 5114.11(g)(l)(B)" and the corresponding 

table should have been labeled as Fw 2: 30 TAC 

5114.1 l(g)(l)(B). 

Due to submission mr in 5114.11(g)(2)(A) the text 

should read "LEV and ULEV missions standards for 

heavyduty vehicles ...." 

Due to submission uror in 5114.11(g)(i)(3) the should 

have read "... installer of the ahnative fuel systuns of 

vehicles utilized by the fleet; andm 

Due to publishing mr 81 14.110(2)(A) should have read 

"...fleet percentage rqukments of subsection (d) of this 

section; 

Egun 3: 30 TAC 81 14.11&)(2)(A)" and the cornsponding figure should have been labeled accordingly. 

Due to publishing error 5114.1 1(k)(2)(B) should have read 

"...meet missions standards more stringent than the LM 

ernission standards; and 

Fwre 4: 30 TAC 5114.11Q(2)(B)" and the corresponding figure should have been labeled accordingly. 

Due to publishing error 61 14.1 1&)(2)(C) should have read 

"...cutified levcls,of evaporative missions less than five 

grams per test. 

19 TexReg 6792 August 26, 1994 Texas Register +