STATE OF TEXAS OFFICE OF THE GOVERNOR GEORGE W

. BUSH GOVERNOR 

### July22, 1998 Mr. Gregg A

. Cooke Regional Administrator Region 6 U .S. Environmental Protection Agency 1445 Ross Avenue Dallas, TX 75202-2733 Dear Mr. Cooke: Enclosed is a revision toTexas' State Implementation Plan (SIP) consisting of amendments thattheTexas Natural Resource Conservation Commission adopted onJune 17, 1998. Theamendments to Subchapters AthroughD, F, and G of30TexasAdministrative Code Chapter 116, concernControl ofAirPollution byPermits for New Construction or Modification. Theyimplement therequirements ofthe Federal CleanAirAct and 40Code of Federal Regulations Part 63 concerning HazardousAir Pollutants, and they makegeneral corrections andclarificationsto Chapter 116 . Theseamendments are beingsubmitted toyou as a proposed revision to the SIP . Also enclosed is a public hearingcertification, a complete record ofthe public hearing, and the accompanying order. I look forward toyourexpeditious approval ofthis revision to the Texas SIP

.

Enclosures

Posr Or-FicE Box 12428 Ausivr, TFxtis 78711 (512) 463-2000 (VoicE)/(512) 475-3165 (TDD)Ba'rry R

. McBee, Chairman R . B. "Ralph" Marquez, Commissioner John M . Baker, Commissioner Dan Pearson, ExecutiveDirector



## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

Protecting Texas by ReducingandPreventing Pollution



### THE STATE OF TEXAS § COUNTY OF TRAVIS §

This is to certify that the attached are true and correct copies of a revision to the 'Texas State Implementation Plan, adopted onJune 17, 1998, pursuant to 40 Code of Federal Regulations (CFR), §51 .104. Prior to the adoption of this revision, a public hearing was held pursuant to 40 CFR, §51 .102(a), and notice of this hearing was given whichconformed to the requirements of 40 CFR, §51 .102(d) . I amthe custodian of the records of the Commission. To certify which, witness my hand and the seal of the Texas Natural Resource Conservation Commission, this the 17th day ofJune, 1998.

nia Eug-e * 10' Brumm, Ph.D . Chief Clerk Texas Natural Resource Conservation Conunission

P.O. Box 13087 " Austin, Texas 78711-3087 " 512/239-1000 " Internet address: mvw .tnrcc: st-,?e .tY.~~s printed on recycled paperusing soy-based inkTexas Natural Resource Conservation Commission Public Hearing April 16, 1998 30 TAC Chapter 11~, NSR Rule Revisions; § 112(g) Rule Log Number 98001-116-AIINTRODUCTION

The commission held a public hearing in Austin on April 16, 1998, to consider amendments Chapter 116, Subchapters A-D, F, and G, concerning Control of Air Pollution by Permits for NewConstruction or Modification. The amendments implement the requirements of the Federal Clean Air Act, §112(g), 40 Code of Federal Regulations, Part 63, concerning Hazardous Air Pollutants, and make general corrections and clarifications to Chapter 116. The amendments to Chapter 116 will also be submitted as a revision to the Texas State Implementation Plan. Written comments were accepted through April 20, 1998. 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 commission's central office at 12100 North IH-35, Austin, Texas 78753. For further information, contact Susan Owen, Legal Division, (512) 239- 0576or JimDodds, Air Policy and Regulations Division, (512) 239-0970 .

# PUBLIC NOTIFICATION AND PROPOSALPUBLIC NOTIFICATION

Notification to the public ofthe 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; March 10, 1998 Beaumont Enterprise-Journal ; March 11, 1998 Fort Worth Star-Telegram ; March 11, 1997 Houston Chronicle; March 13, 1998

2. Publication of the public hearing notice in the March 20, 1998, issue of the Texas Register (23 TexReg 3109) and publication of the proposed rules in the March 20, 1998, issue of the Texas Register (23 TexReg 2953) . 3. Correspondence forwarding the notice of public hearing to the following officials and agencies: Speaker ofthe House Lieutenant GoVernor City of El Paso 

### City of Victoria Planning Department Dallas Department of Health and Human Services El Paso City-County Health District Federal Highway AdministrationFort Worth Public Health Department Galveston County Health District Houston Department of Health and Human Services Harris County Pollution Control Department North Central Texas Council of Governments Houston-Galveston Area Council South East Texas Regional Planning Commission Texas Department of Transportation Texas Transportation Institute Arkansas Department of Pollution Control and Ecology Louisiana Department of Environmental Quality New Mexico Air Quality Bureau Oklahoma Department of Environmental Quality U. S. Environmental Protection Agency

### EXAMPLE OF NEWSPAPERCLASSIFIED AD Austin American-Statesman March 10, 1998

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--- -' . ConservcY:on CorgrlisscrtFiled: March 11, 1998

Notice of Operating Permit Due Dates: Dallas/Fort Worth Area Ozone Nonattainment Area Reclassification The Texas Natural Resource Conservation Commission (TNRCC) is providing notice that the United States Environmental Protection Agency (EPA) has reclassified the Dallas/Fort Worth area from "moderate" to "serious" ozone nonattainment for the one-hour ozone National Ambient Air Quality Standard. This redesignation is effective March 20, 1998, and was published in the February 18, 1998, issue of the Federal Register (63 FR 8128-8134) . For Dallas, Tarrant, Denton, and Collin Counties, the major source threshold for volatile organic compounds for the Title V Operating Permit Programis changing from 100 tons/year to 50 tons/year

. The nitrogen oxides exemption fromcontrol requirements (Federal Clean Air Act, §182(f)), granted by EPA on November 21, 1994, remains in effect. Therefore, the major source threshold for nitrogen oxides remains 100 tons/year for these counties. As specified in 30 TAC §122.130(c)(2), sources that become subject to the Title V Operating Permit due to the ozone nonattainment redesignation are required to submit abbreviated applications to the TNRCC by March 20, 1999, at the following address: TNRCC Office of Air Quality, Operating Permits Division, MC 163, P . O . Box 13087, Austin, Texas 78711-3087. The executive director shall inform the applicant in writing of the deadline for submitting the remaining application information. - For further information, please contact the Operating Permits Division at (512) 239-1334. TRD-9803482 Eugenia K. Brumm, Ph .D Chief Clerk Texas Natural Resource Conservation Commission Filed: March 11, 1998 Notice of Public Hearing (§106.491) Notice is hereby given that under the requirements of Texas Health and Safety Code, §382.017, and Texas Government Code, Subchapter B, Chapter 2001, the Texas Natural Resource Conservation Commission (TNRCCor commission) will conduct a public hearing to receive testimony concerning revisions to 30 TACChapter 106 . The commission proposes an amendment to §106 .491, concerning Dual Chamber Incinerators. The amendment is proposed to ensure that incinerators operated under the conditions of this section will not cause human exposure to potentially harmful substances or cause nuisances. A public hearing on the proposal will be held April 13, 1998, at 11 :00 a.m . in Room2210 of TNRCC Building F, located at 12100 Park 35 Circle, 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, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. Written comments may be mailed to Lisa Martin, TNRCC Office of Policy and Regulatory Development, MC 205, PO . Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log Number 97165-106-Al . Comments must be received by 5:00 p.m ., April 20, 1998. For further information, please contact Dale Beebe-Farrow, NewSource Review Permitting Division, (512) 239-1310, or Beecher Cameron, Air Policy and Reoulations Division, (512) 239-1495. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. TRD-9803300 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Filed: March 6, 1998 Notice of Public Hearing (Chapter 114) Notice is hereby given that pursuant to the requirements of the Texas Health and Safety Code Annotated, §382.017 (Vernon's 1992) ; Texas Government Code Annotated, Subchapter B, Chapter 2001 (Vernon's 1993) ; and 40 Code of Federal Regulations, §51 .102, of the United States Environmental Protection Agency regulations concerning State Implementation Plans (SIP), the Texas Natural Resource Conservation Commission (commission) will conduct a public hearing to receive testimony regarding revisions to 30 TACChapter 114 and to the SIP concerning the Accelerated Vehicle Retirement (AVR) Program . The purpose of this proposal is to repeal § 114.200. The AVR Program rule, which was adopted on October 19, 1994, currently requires the use of an Inspection Maintenance (I/M) 240 test for calculating emissions reduction credits. Since the I/M240 test is no longer used as a part of the Texas Motorist's Choice Program, repeal of the scrappage rule is necessary. Additionally, this rule is currently not being used by the agency and is not required by state or federal law . A public hearing on this proposal will be held in Austin on April 14, 1998, at 10:00 a.m

. in Building F, Room2210, at the commission complex, located at 12100 North IH-35, Park 35 Circl~ -in. Individuals may present oral statements when called upon n! .~ider of registration. Open discussion will not occur during the hearing; however, an agency 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 may be mailed to Ms. Heather Evans, Office of Policy and Regulatory Development, MC 205, PO . Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Comments must be received by 5:00 p.m ., April 20, 1998. For further information on this proposal, please contact Mr. Bill Jordan, Air Policy and Regulations Division, at (512) 239-2583. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. TRD-9803271 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Filed: March 5, 1998 Notice of Public Hearing (Chapter 116) 

### INADDITION Mareh 20, 1998 23 TexReg 3109Notice is hereby given that under the requirements of Texas Health

and Safety Code, §382.017; Texas Government Code, Subchapter B, Chapter 2001 ; and 40 Code of Federal Regulations, §51 .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 commission proposes amendments toSubchapters A-D, F, and G, concemin; Control of Air Pollution by Permits for NewConstruction or Modification. The proposed amendments would implement the requirements of the Federal Clean Air Act, §112(Q), 40 Code of Federal Regulations Part 63, concerning Hazardous Air Pollutants, and make general corrections and clarifications to Chapter 116. A public hearing on the proposal will be held April 16, 1998, at 10:00 a .m . in Room 2210 of TNRCC Building F, located at 12100 Park 35 Circle, 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 will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. Comments regarding this proposal may be submitted to Lisa Martin, TNRCC Office of Policy and Regulatory Development, MC 205, P.O . Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239- 4808. All comments should reference Rule Log Number 98001- 116-AI . Comments must be received by 5:00 p.m ., April 20, 1998. For further information or questions concerning this proposal, please contact Mark Gibbs of the New Source ReviewPermitting Division, Office of Air Quality, (512) 239-1297. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. TRD-9803329 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Filed: March 6, 1998 Proposal for Decision The State Office Administrative Hearing has issued proposal for Decision and Order to the Texas Natural Resource Conservation on February 20, 1998 on B.L. Phillips Water Systems; SOAHDocket No. 582-97-2128; TNRCC Docket No. 96-1449-PWS-E. This posting is Notice of Opportunity to comment on Proposal for Decision and Order. Comment period will end 30 days fromdate of publication. TRD-9803469 Eugenia K

. Brumm, Ph.D Chief Clerk Texas Natural Resource Conservation Commission Filed: March 11, 1998 Provisionally-Issued Temporary Permits to Appropriate State Water Listed below

are permits issued during the period of March 6, 1998 Application No. TA-7928 by B&J Air and Pump to, diversion of 10 acre-feet in a 1-year period for mining (oil & gas well drilling) use. Water may be diverted anywhere in the Rio Grande Watershed in Starr, Hidalgo and Cameron Counties, Texas. Application No. TA-7929 by B&J Air and Pump for diversion of 10 acre-feet in a 1-year period for mining (oil & gas well drilling) use. Water may be diverted anywhere in the Rio Grande Watershed in Webb and Zapata Counties, Texas. The Executive Director of the TNRCChas reviewed each application for the permits listed and determined that sufficient water is available at the proposed point of diversion to satisfy the requirements of the application as well as all existing water rights. Any person or persons who own water rights or who are lawful users of water on a stream affected by the temporary permits listed above and who believe that the diversion of water under the temporary permit will impair their rights may file a complaint with the TNRCC . The complaint can be filed at any point after the application has been filed with the TNRCC and the time the permit expires. The Executive Director shall make an immediate investigation to determine whether there is a reasonable basis for such a complaint . If a preliminary investigation determines that diversion under the temporary permit will cause injury to the complainant the commission shall notify the holder that the permit shall be canceled without notice and hearing. No further diversions may be made pending a full hearing as provided in Section 295.174. Complaints should be addressed toWater Rights Permitting Section, Texas Natural Resource Conservation Commission, P.O . Box 13087, Austin, Texas 78711, Telephone (512) 239-4433. Information concerning these applications may be obtained by contacting the Texas Natural Resource Conservation Commission, P .O . Box 13087, Austin, Texas 78711, Telephone (512) 239-3300. TRD-9803466 Eugenia K. Brumm, Ph.D Chief Clerk Texas Natural Resource Conservation Commission Filed: March 11, 1998 

### North Texas Local Workforce Development Board Request for Proposal CY98Title IIB Summer Youth Employment and Training Program Proposals are requested for youth programs which will provide skills and aptitudes needed to enhance basic education through improving in school retention or academic performance; encourage school completion or enrollment in supplementary or alternative school programs; improve employability skills; enhance citizenship skills; and demonstrate coordination with other appropriate community organizations. The Job Training Partnership Act (JTPA) summer youth program participants are economically-disadvantaged in-school youths, ages 14 through 21, functioning belowactual enrollment grade level . Participants to be served reside in 11 counties of NorthTexas: Archer, Baylor, Clay, Cottle, Foard, Hardeman, Jack, Montague, Wichita, Wilbarger, and Young. To obtain Request for Proposal packets contact Barbara A. Young, Administrative Technician, North Texas Local Workforce Development Board, 4309 Jacksboro Highway, Suite 106, Wichita Falls, Texas 76302. Call (940) 322-5281 (TDD#1-800-RELAYTX or 1-2210of the Texas Natural Resource Conservation Commission

complex, located at 12100 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 will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing. SUBMITTAL OF COMMENTS. Written comments may be submitted to Heather Evans, Office of Policy and Regulatory Development, MC205, PO

. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log No. 98009-SIP-AI . Comments must be received by 5:00 p.m . April 20, 1998. For further information, please contact Bill Jordan of the Air Policy and Regulations Division, Office of Policy and Regulatory Development, (512) 239-2583. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact theagency at (512) 239-4900. Requests should be made as far in advance as possible. STATUTORY AUTHORITY . The repeal is proposed under the agency's general authority, Texas Health and Safety Code §382.017. The repeal authority may be adopted under Texas Water Code §5.103, and Texas Heath and Safety Code, §382.017. Section 5.103 requires the commission to adopt rules any time it is repealing-any agency statement of general applicability that describes its procedure or practice requirements. Section 382.017 provides the commission with the authority to adopt rules. The proposed repeal implements Health and Safety Code, §382.017. {+114 .200 . Accelerated Vehicle Retirement Program . This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 5, 1998. TRD-9803270 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: July 1, 1998 For further information, please call : (512) 239-1970 

### Chapter 116

. Control of Air Pollution by Permits for New

Construction or Modification The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes the repeal of §§116.10, 116.11, 116.13, 116.14, 116.110-116.112, 116.114-116.118, 116.120-116.126, and 116.310-116.314 and new §§116.10, 116.11, 116.13-116.15, 116.110-116.112, 116.114-116.118, 116.120-116.126, 116.180-116.183, and 116.310-116.314, concerning Control of Air Pollution by Permits for NewConstruction or Modification. The commission also proposes amendments to §§116 .130- 116.134, 116.136, 116.137, 116.140, 116.141, 116.143, 116.160, 116.161, 116.170, 116.174, 116.610, 116.611, 116.614, 116.615, 116.617, 116.620, 116.621, 116.710, 116.711, 116.714, 116.715, 116.721, 116.730, 116.740, and 116.750, concerning Control of Air Pollution by Permits for New Construction or Modification. This action constitutes the commission's proposal to review the rules contained in 30 TAC Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, in accordance with Article IX, §167, General Appropriations Act, 75th Legislature, 1997. EXPLANATIONOF PROPOSED RULES. The commission proposes a new§116.15 and a newSubchapter C, §§116 .180- 116.183, for the purpose of implementing a programto meet the requirements of the 1990 Federal Clean Air Act (FCAA) amendments, §112(g), as set forth in 40Code of Federal Regulations (CFR) Part 63, §§63.40-63.44, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) . Chapter 116 will implement the requirements of Title III of the FCAA, concerning Hazardous Air Pollutants, §112(g), Modifications, and 40 CFR Part 63. After June 29, 1998, the effective date of §112(g)(2)(B), and the approval date of a Title Vpermit programin the state, all owners and operators of major sources subject to the §112(g) programthat are constructed or reconstructed will be required to install maximumachievable control technology (MACT) unless specifically exempted. Included in Title III of the 1990 FCAA amendments, §112(g) was designed to ensure that emissions of toxicair pollutants meet the requirements of a case-by-case MACT if a facility is constructed or reconstructed before the United States Environmental Protection Agency (EPA) issues a MACT standard or air toxics regulation for that particular category of sources or facilities. Changes have been made throughout the rules as the result of ongoing efforts by the commission for regulatory reform . These changes are for purposes of simplification and clarification only and do not involve substantive changes in the requirements of this chapter. In general, these changes involve using shorter sentences, limiting each citation to one main concept, reordering requirements into a more logical sequence, and using more commonplace terminology. These changes will not be noted in the discussion in the following paragraphs concerning the proposed amendments to Chapter 116in each subchapter. Although sections of Subchapter F, concerning Standard Permits, and Subchapter G, concerning Flexible Permits, were revised, these subchapters were not included in this extensive regulatory reform effort. In addition, not all of Subchapter B was included. These subchapters and remaining sections will be reviewed at a later date for purposes of regulatory reform

. The subchapters of the rule related to nonattainment permitting and emergency orders have not been included in this rulemaking, since they are expected to be revised in subsequent rulemakings that are on a different schedule . Those subchapters will be reviewed for regulatory reformpurposes at that time. The following paragraphs describe the proposed amendments to Chapter 116by subchapter. SUBCHAPTER A

: DEFINITIONS. The commission proposes to amend Subchapter A by deleting those definitions that are identical or essentially the same as those in 30 TAC Chapter 101, concerning General Rules. As a result, in Chapter 116, 

### PROPOSED RULES March 20, 1998 23 TexReg 2953the commission proposes todelete the definitions of "de minimis

impact" and "emissions unit," to eliminate redundancy. In addition, the commission proposes to amend the definitions that reference exemptions frompermitting by referringto 30TAC Chapter 106, concerning Exemptions from Permitting. These references were proposed in response to the recent revision to Chapter 116 that moved exemptions to Chapter 106 . Correct references to the newexemption chapter, or specific sections within that chapter, have been made throughout the rules. The definition of "federally enforceable" is revised to include the requirements of 30TACChapter113, Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR Part 63) . These standards (commonly referred to as MACTS) are incorporated by reference into Chapter 113 and this reference is being included simply to direct the reader to the correct chapter of the commission's rules. The definition of "lead smelting plant" plant is revised to correct an internal conflict. The definition states that processing may include "oxidizing into lead oxide." This conflicts with the last sentence of the definition, which says that a facility that remelts lead bars or ingots is not a lead smelting plant. The conflict arises because lead oxide is only made by melting lead ingots. Finally, the commission proposes new§116.15, concerning Section 112(g) Definitions. The definitions contained in §116.15 will be used in conjunction with Subchapter C, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63) . The definitions in §116.15 are essentially the same as those contained in 40CFR 63, §63.41, concerning Definitions under Subpart B, Requirements for Control Technology (see 61 FR 68399) . SUBCHAPTER B: NEW SOURCE REVIEWPERMITS. The commission proposes to amend §116.110, concerning Applicability, to reference standard permits that currently exist in Chapter 321, Subchapter K, concerning Concentrated Animal Feeding Operations; Chapter 332, concerning Composting; and Chapter 330, Subchapter N, concerning Landfill Mining. This amendment is proposed so that all the standard permits (for air emissions) currently available are referenced in Chapter 116 . The commission proposes to delete the operations certification requirements contained in theexisting §116.110(b) as aresult of recommendations made by the TNRCCregional offices and the Office of Compliance and Enforcement. The commission believes that the operations certification requirement created unnecessary reporting and paperwork and could be implemented more effectively through new source review(NSR) permits on a case-by-case basis. The commission proposes a new§116.110(c), concerning Exclusion, to make it clear that facilities subjectto Subchapter C are not authorized to use an exemption under Chapter 106, or an authorization under §116.116(e), concerning changes to qualified facilities. Facilities subject to Subchapter C can use standard permits under Subchapter F of this chapter if the terms and conditions of the standard permit meet the criteria of Subchapter C . As currently written, none of the existing standard permits meet the criteria of Subchapter C (e.g., there is no requirement for public notice) . These changes are being made to ensurethat applicants obtain the appropriate authorization under Subchapter C and are described in more detail in the section of the preamble addressing Subchapter C . The commission proposes a new §116.110(d), concerning change in ownership (formerly §116.110(c)) . This subsection is proposed to be revised to specify that new owners must submit information on the date of the change in ownership, the name of the new

owner, a contact person for the newowner, and the address and phone number of the new owner. The commission proposes a new§116.110(e) to reflect the recent revisions to the Texas Engineering Practice Act (TEPA) which nowrefers to "licensed" engineers instead of "registered" engineers. The correct name of the Texas Board of Professional Engineers is included. The rule is revised to make clearthat for projects with a capital cost above $2 million, the project must be submitted under the seal of a Texas licensed professional engineer. This change is being made to make this section consistent with longstanding agency practice concerning seals of Texas professional engineers . Section 116.111(6), concerning national emissions standards for hazardous air pollutants for source categories, is revised to reference the requirements of Chapter 113, Subchapter C . These standards (commonly referred to as MACTS) are incorporated by reference intoChapter 113 and this reference is being included simply to direct the reader tothe correct chapter of the commission's rules. Changes are proposed to implement FCAA, §112(g) and 40 CFR Part 63, Subpart B, requirements in §116.111(11), concerning general application, to ensure that applicants submit information in permit applications that demonstrates that the requirements of Subchapter Care met. Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, §361 .102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Pa- ~,- Public Drinking Water Supply. The current §116.112(b,i,) contained a typographical error that would have allowed the construction of any newcommercial hazardous waste management facility or units of a facility to be located within 2,640feet of any off-site receptor. The statutory provision prohibits the construction of a new commercial hazardouswaste management facility that would be within 2,640feet of any offsite receptor. Section 116

.115(c), concerning special conditions, is revised to include a reference to the new requirements in Subchapter C . This change will allow

the executive director to include a special condition in permits requiring permit holders to obtain prior written approval before constructing a source using a standard permit under Subchapter F or an exemption under Chapter 106, if the change would cause the facility to become subject to Subchapter C

. Section 116.116(b)(3) is added to require permit amendments that concern a change subject to Subchapter Cto comply with the provisions for public notice and comment under Subchapter B of this chapter. This change is being made because 40 CFR Part 63, §63.43(c)(2)(ii), requires case-by-case MACT determinations to be subject to public notice. Subsection (f) is being added to §116.116 to authorize the use of discrete emission reduction credits (DERCs) to exceed permit allowables under certain conditions. The commission 

### 23 TexReg 2954 March 20, 1998 Texas Registerrecently adopted a revised emissions banking and trading rule

(22 TexReg 12517) to allowa source to meet emission control requirements by purchasing and using credits generated by another source which has reduced its emissions below the level required by rule or permit. The revised banking rule allows for the use of DERCs to exceed permitted allowable emission levels by a certain amount once within any 24-month period. In ozone nonattainment areas, this exceedance must be 25 tons or less of nitrogen oxides or five tons or less of volatile organic compounds. In other areas, the amount may not exceed the prevention of significant deterioration significance levels as provided in 40 CFR §52.21(b)(23) . In addition to other requirements, these uses must be approved by the executive director and may not cause or contribute to a condition of air pollution. The proposed language of §116.116(f) would be the final step in allowing the use of credits to authorize certain exceedances of permit allowables. Section 116.117, concerning Documentation and Notification of Changes to Qualified Facilities, is revised to require persons making changes to qualified facilities under §116.116(e) to maintain documentation that demonstrates that the project will comply with -Subchapter C . A minor amendment is proposed in §116.118 that would add the word "or" in §116.118(a)(1) . This is being done to correct a previous typographical error. The commission proposes to amend §116.130(a), concerning applicability of public notification and-comment procedures, by adding a reference to permit renewals. Applications for permit renewals are already required to go through public notice. This change merely includes a reference to renewals in this section. Subsection (a) is also revised to more closely track Texas Clean Air Act (TCAA), §382.056, concerning Notice of Intent to Obtain Permit or Permit Review ; Hearing, by including the phrase "or to be located." This revision does not change the current requirement to publish notice in a newspaper of general circulation in the municipality where the facility is located, or to be located. Section 116.130 is also revised by adding a new subsection (c) that requires applications subject to review under Subchapter C

to go through public-notice. All applications subject to the requirements of FCAA, §112(g) and 40CFR Part 63, Subpart B, whether initial applications or amendments to existing case-by-case MACT determinations, must go through the public notice process. This is because 40 CFR Part 63, Subpart B, §63.43(c)(2)(ii), requires that all such determinations be subject to public notice. To assist in the implementation of the commission's directive to facilitate and improve the public notice process, the commission proposes to provide the phone number of the appropriate commission office to contact for further information as a part of the public notice required in §116.132(a)(11) and §116.133(a)(6) rather than the phone number of the appropriate TNRCC regional office. Section 116.136(a) is proposed to be revised tocorrectly referto the requirement that the executive director make a preliminary determination to issue or deny a permit subject to the FCAA, Title 1, Parts Cor Dor to 40 CFR§51 .165(b) or the availability of the preliminary analysis that is required for other permitting actions. This change will make §116.136(a) consistent with the requirements of §116.132(a)(6) and (7), concerning public notice format. The commission proposes to amend §116.140, concerning Applicability of Permit Fees, bydeleting reference to operating permits and standard exemptions, because these types of authorizations are no longer included in Chapter 116 . The reference to operating permits is deleted because the commission no longer issues state operating permits. This should not be confused with federal operating permits issued under 30 TAC Chapter 122, concerning Federal Operating Permits. Exemptions frompermitting are nowcontained in Chapter 106 . The commission proposes to amend §116.141(b)(1) to specify that any application for newor modified facilities controlled by the federal government will be charged a fee of $450. The existing provision qualifies the fee requirement for federal government applications submitted after January 1987. Since all of the pre-1987 applications from the federal government have been acted on by the commission, this provision is no longer necessary

. Section 116.141(c)(1)(A) is revised to address an interpretation problemwith the current rule. As currently written, the rule has confused someapplicants and staffconcerning the computation of direct costs for facilities that are no longer permitted (e.g., the permit expired and was not renewed) . A historical review of this section indicates that the original fee language was added prior to any requirements for renewal (and expiration) of permits. The confusion lies around whether "permitted" means currently permitted or ever permitted regardless of current status. With two possible interpretations, neither has been consistently applied and the proposed language will rectify this situation . The commission does not believe thatit is appropriate to allowthe direct costs of process and control equipment of a facility to be excluded if the facility once had a permit but no longer does. Allowing this exclusion would promote the argument that higher renewal fees could be avoided in favor of a minimumnew

permit fee. It is not expected that this change will result in significantly higher fees and it will ensure that all applications are reviewed consistently for fee determinations. Thecommission proposes to amend §116.143 by correcting the TNRCC mailing address where permit fees are submitted. The previous mailing address was a street address rather than a post office box

. SUBCHAPTER C

: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, §112(g), 40 CFR Part 63) . The proposed revisions contain a new Subchapter C which is intended to meet the requirements of the 1990 FCAA amendments, §112(g), as set forth in 40 CFR 63, §§63 .40- 63.44. Included in Title III of the 1990 FCAA amendments, §112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of case-by-case MACT if a facility is constructed or reconstructed before EPA issues a MACT standard or air toxics regulation for that particular category of sources or facilities. 40 CFR Part 63, Subpart B, requires the commission to make case-by-case MACT determinations for sources that become subject to §112(g) prior to the EPApromulgating a MACT that would apply to the source. 40 CFR 63, §63.42 allows states to rely on existing NSR permitting programs to implement the requirements of §112(g) if the NSR programmeetsthe requirements of that subpart. The commission believes that, with some modifications, the existing NSR programcan implement the requirements of §112(g) and 40 CFR Part 63, Subpart B . Ac

### PROPOSEDRULES March 20, 1998 23 TexReg 2955cordingly, the commission believes that the Best Available Control Technology (BACT) determinations made in the NSR programwill be the equivalent to the requirements forcase-by-case MACT determinations. After June 29, 1998, the effective date of §112(g)(2)(B), and the approval date of aTitle Vpermit programin the state, all owners and operators of major sources subject to the §112(g) program that 'are constructed or reconstructed will be required to install MACT unless specifically exempted. As originally implemented, Chapter 122 was a source category limited interim approved program . This meant that only certain standard industrial classification codes were required to apply for an operating permit under the interimprogram . The remaining sources were to apply upon the approval of the full programby the EPA . Chapter 122 was recently revised (November 1997) to require all sources subject to that programto submit an abbreviated application by February 1, 1998. This revision has the effect of bringing all sources in the state who are subject to the rule into the programwell before the expected date required for full programapproval . Therefore, after June 29, 1998, and after the EPAapproves the recent revisions to Chapter 122, sources that trigger §112(g) reviewmust apply to the commission for a case-by-case MACT determination under §116.182, concerning Application. The TNRCC staff expects Chapter 122 to be revised prior to June 29, 1998. Administratively complete applications that are submitted prior to June 29, 1998, and the approval of the revised Chapter 122, will not be subject to the requirements of Subchapter C . - After the effective date of §112(g)(2)(B) and upon approval of the state's federal operating permit program, sources subject to the requirements of Subchapter Cwill not be able to use a Chapter 106exemption or a standard permit under Subchapter F (unless the particular standard permit's terms and conditions meet the requirements of Subchapter C) because all caseby-case MACT determinations are subject to the public notice requirements of Subchapter B . Sources will not be able to use §116 .116(e), concerning changes to qualified facilities, because the staff interprets §63.43(d) to require the case-by-case MACT determinations to be equivalent to current BACT determinations. Section 63.43(d)(1) provides that the MACT emission limitation "shall notbe less stringentthan theemission control whichis achieved in practice by the best controlled similar source, as determined . by the permitting authority ." Section 116.116(e) allows for the use of ten-year old BACT for qualified facilities. In some cases, ten-year old BACT may not necessarily be equivalent totoday's BACT. An additional prohibition on the use of §116.116(e) is the requirement for case-by-case MACT determinations to go through public notice. Sources will have limited use of flexible permits under Subchapter G . Currently, flexible permits allowfor control that exceeds BACT on one facility in lieu of installing controls on other facilities. The staff believes that §112(g) and 40 CFR Part 63, Subpart B, require the case-by-case MACT determination to be applied tothespecific affected facilities. Therefore, §116.711(3) was revised to indicate that BACT shall be applied to specific facilities that must complywith Subchapter C . As long as afacility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with determinations made under Subchapter C . In §116.181, concerning Exclusions, the commission is currently proposing the same set of exclusions that are provided in 40 CFR63, §63.40(c)-(f) . The commission has determined that in order to provide a programconsistent with the requirements of 40CFR Part 63, §§63.40-63.44, the same set of exclusions should be provided. In general, if the owner or operator wants to construct or reconstruct a major source (as specified in §116 .180(a)(1) and (2), concerning Applicability), then prior to that construction or reconstruction,the owneror operator must applyto the commission for a case-by-case MACT determination under §116.182, concerning Application. The application must contain the information required by the commission as provided in §116 .111, concerning General Application. In addition, the application must specify the emission controls that will ensure that MACT will be met. Finally, theapplication forthe proposed constructed or reconstructed major source must undergo the public notice requirements required by §116.130, which includes a 30-day public comment period and opportunity for a contested case hearing. After fully considering public'comments and the results of any hearing, the commission would then issue (or deny) a permit, or approve a permit amendment, authorizing the construction or reconstruction of the major source. The case-bycase MACT determination codified in a permit issued under Chapter 116would become an applicable requirement of Chapter 122after satisfying the appropriate operating permit revision process and would be included in as a condition in an operating permit. In proposing Chapter 116, Subchapter C, the executive director is certifying that the proposed §112(g) programsatisfies all applicable requirements established by 40CFR§§63.40-63.44 . After June 29, 1998, the effective date of §112(g)(2)(B), and upon approval of the recently revised Chapter 122, all owners and operators of major sources subject to the §112(g) program that are constructed or reconstructed will be required to install MACT unless specifically exempted. As outlined in the EPA preamble to the final rules implementing §112(g) (see 61 FR 68390), the programpr::-; :sed is not required to have EPA approval before taking effect. SUBCHAPTER D

: PERMIT RENEWALS. The commission proposes a new

§116.311(a)(4) to includethe requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C. Section 116.311(5) is added to include the requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of Subchapter Cof this chapter. Section 116.314, concerning ReviewSchedule, is amended to refer to the correct chapters of the commission's regulations concerning contested case hearings. SUBCHAPTER F: STANDARD PERMITS. Thecommission proposes amendments to §116.610(a)(5), concerning applicability of standard permits, to include the requirement that applicants submit information in applications for standard permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C . The commission proposes a new§116 .610(d) to clarify that facilities subject to Subchapter C of this chapter are not eligible for a standard permit under Chapter 116, unless the 

### 23 TexReg 2956 March 20, 1998 Texas Registerparticular standard permit's terms and conditions meet the

requirements of Subchapter C . This is because 40 CFRPart 63, §63.43(c)(2)(ii), requires all case-by-case MACT determinations to be subject to public notice. The commission proposes to amend §116.614, concerning Standard Permit Fees, by correcting the TNRCC mailing address where permit fees are submitted. The previous mailing address did not have the correct mail code or zip code. The commission proposes to amend §116.620, concerning Installation and/or Modification of Oil and Gas Facilities, to referencethe appropriate exemptions underChapter 106rather than the former standard exemption. In addition, §116.620(a)(13) also includes reference to case-by-case MACT review under Subchapter C

. Section 116.620(a)(16) is added to require applicants to submit information in applications for standard permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C . The commission also proposes to amend §116.621(2)(F), concerning municipal solid waste landfills, to refer to the correct exemptions under Chapter 106 rather than the former standard exemption. In addition, §116.621(2)(F) includes reference to reviewunder Subchapter C . SUBCHAPTER G

: FLEXIBLE PERMITS. Consistent with the proposal to delete §116.110(b), the commission proposes to delete the operations certification requirements contained in §116.710(b) as a result of recommendations made by the TNRCC regional offices and the Office of Compliance and Enforcement. The commission believes that the operations certification requirement created unnecessary reporting and paperwork and could be implemented more effectively through Chapter 116 permits on a case-by-case basis. Section 116.710(c) is revised to be consistent with the changes proposed to §116.116(e), concerning seals of Texas licensed professional engineers. Section 116.711(3) is revised to require applicants to demonstrate that the proposed control technology meets the current BACT requirements for any constructed or reconstructed facility that is required to meet Subchapter C . Section 116.711(6) is addedto require applicants to submit information in applications for flexible permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C . The commission also proposes amendments to §116.711(11), concerning flexible permit applications, by adding a requirement that facilities subject to reviewfor constructed or reconstructed major sources of hazardous airpollutants under FCAA, §112(g) and 40 CFRPart 63 must comply with Subchapter C . Along the same lines, the commission proposes to amend §116.715(a), concerning general and special conditions, to include the case-by-case MACT review under Subchapter C when considering whether a facility is eligible for a flexible permit under §116.710. A reference to Subchapter C was added because the commission wants to ensure that a facility operating under the terms of a flexible permit is in compliance with the federal permitting requirements of Subchapter C . As noted in the preamble discussion concerning Subchapter C, as long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with case-by-case MACT determinations. In addition, §116.715 is amended to make the correct reference to Chapter 106 . In order to properly refer to the Engineering Services Section, the commission proposes to amend §116.715(c)(4) by deleting a reference to the Source and Mobile Monitoring Section. Section 116.740(b), concerning public notice and comment, is added to require public notice for flexible permit amendments that address a case-by-case MACT determination under Subchapter C

. Flexible permit amendments that do not concern case-by-case MACT determinations are not required to complete the public notice process. This change is being made to allowsources to continue to fully utilize flexible permits while meeting the conditions of Subchapter C . In addition, the commission proposes to amend §116.721 and §116.750, concerning Amendments and Alterations and Flexible Permit Fee, to correctly reference Chapter 106 rather than the former Chapter 116for standard exemptions. Section 116.750(b) is amended to clarify that the minimumfee for a flexible permit amendment is $450 . This is not a change to the existing fee structure; rather, it is to correct an oversight to include the $450 minimumfee. The $450 minimumfee has been applied, when applicable, to all applications for flexible permit amendments. This correction will make this section consistent with Subchapter B regarding fees for NSR permit amendments. REVIEW

OF AGENCY RULES. The commission also proposes to review

the rulescontained in 30TACChapter 116, concerning Control of Air Pollution by Permits for NewConstruction or Modification, as mandated by the General Appropriations Act, Article IX, §167

. Section 167 requires state agencies to review and consider for readoption rules adopted under the Administrative Procedure Act. The reviews must include, at a minimum, an assessment that the reason forthe rulescontinues to exist. Thecommission has reviewed the rules in Chapter 116 and determined that the rules in Chapter 116are still necessary they implementcritical provisions of theTexas Health and Safety Code, Texas Clean Air Act, Chapter 382, as well as 42 United States Code Annotated, §7401 to 7671q, of the Federal Clean Air Act. Chapter 116 provides the procedures for action on any application for a permit for construction or modification or renewal of a permit for a facility that will emit air contaminants into the air of the state. FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year period the sections are in effect, there will be no significant fiscal implications anticipated forstate or local government as a result of enforcing or administering the sections. PUBLIC BENEFIT

. Mr. Minick also has determined that for each year of the first five years the sections are in effect, the anticipated public benefit will be that the rules will conformto the commission's guidelines for regulatory reform . This will increase the readability of the rule, thus assisting the public and the regulated community in their understanding of the regulation. The additional changes are proposed to clarify existing rule language and make the ruleconsistent with current procedures will benefit the public in that the rulewill better reflect the TNRCC's current operating procedures. The provisions of Chapter 116 will also implement the new requirements of Title III of the FCAA for the permitting of construction or reconstruction of major sources of hazardous air pollutants. After June 29, 1998, the effective date of §112(g)(2)(B), andthe approval date of aTitle Vpermit program in the state, allowners and operators of majorsourcessubjectto 

### PROPOSED RULES March 20, 1998 23 TexReg 2957the §112(g) programthat are constructed or reconstructed will

be required to install MACT unless specifically exempted. The public benefitfromthe implementation of this programis that the commission, and not the EPA, will be the agency responsible for the oversight of the newprogram . Since the existing NSR permitting process, with some modifications, will be used to implement the requirements of §112(g) and 40 CFR Part 63, Subpart B, the regulated community and the public will already be familiar with that process. The proposed revisions do not impose significant newrequirements on the regulated community, small businesses, or persons who are required to comply with the sections as proposed. DRAFT REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking in lightof the regulatory analysis requirements of Texas Government Code (the Code), §2001 .0225, and has determined that the rulemaking is not subject to §2001 .0225 because it does not meet the definition of a "major environmental rule" as defined in the Code. The portions of the rules implementing the FCAA, §112(g) do not meet the definition because the obligations have already been established by federal lawand thus are not newrequirements. The other portions of the rules correcting typos, clarifying language, and instituting regulatory reformchanges are not of a magnitude to affect the economic factors in a material way . TAKINGS IMPACT ASSESSMENT The commission has prepared a takings impact assessment for these rules under Texas Government Code, §2007.043. The following is a summary of that assessment . The specific purpose of the rule amendments and repeals is to implement the requirements of Title III of the FCAA, Hazardous Air Pollutants, §112(g), Modifications, and 40 CFR Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) . The rule amendments and repeals will also implement the commission's guidelines on regulatory reformas well as provide clarifications to existing rule language, streamline procedures, and make the rule consistent with other commission rules. Promulgation and enforcement of the rule amendments and repeal will not create a burden on private real property. COASTAL MANAGEMENT PROGRAMCONSISTENCY REVIEW . The commission has determined that this proposed rulemaking action is subject to the TexasCoastal Management Program(CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Conservation Commission. Natural Resources Code, §§33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAG Chapters 501-506), and the commission's rules in 30TAG Chapter 281, Subchapter B, Consistency with the Texas Coastal Management Program

. As required by 31 TAG §505 .11(b)(2) and §505.22(a), and 30 TAG §281 .45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with applicable CMP goals and policies. The commission has reviewed this proposed rulemaking action for consistency, and has determined that this proposed rulemaking action is consistent with the applicable CMP goals and policies. Chapter 116proposes a new programthat implements the requirements of Title III of the FCAA, Hazardous Air Pollutants, §112(g), Modifications, and 40 CFRPart 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology . The proposed rule revisions are consistent with the goals and policies of the CMP because they are being proposed to implementthe new

§112(g) program

. The new

§112(g) program requires preconstruction reviewof major sources of hazardous air pollutants. This newprogramwill require a review of the controls proposed for these major sources and could result in a reduction in air emissions. The majority of the proposed revisions will not impact air emissions since they are being done under the commission's guidelines on regulatory reform orforthe purpose of clarification of existing procedures. The proposed changes concerning fees should not impact the status quo of the NSR permitting program, since the changes concerning direct costs provide consistencywhen calculating fees for new construction permits. Interested persons may submit comments on the consistency of the proposed rules with the CMP goals and policies during the public comment period. PUBLIC HEARING

. Apublic hearing on the proposal. and rules reviewwill be held April 16, 1998, at 10:00 a.m . in Room 2210 of TNRCC Building F located at 12100 Park 35 Circle, Austin. The hearing is structured forthe receipt of oral orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. SUBMITTAL OF COMMENTS. Comments regarding this proposal may be submitted to Lisa Martin, TNRCCOffice of Policy and Regulatory Development, MG 205, FO . Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 98001-116-AI . Comments must be received by 5:00p.m ., April 20, 1998. The commission requests that comments on the results of the reviewof its rules be clearly identified separately fromcomments on the proposed changes in order to facilitate their assessment . For further information or questions concerning ?'.,'l nroposal, please contact Mark Gibbs of the New Source Revoiw

. Permitting Division, Office of Air Quality, (512) 239-1297. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing shouldcontactthe agency at (512) 239-4900. Requests should be made as far in advance as possible. 

### Subchapter A

. Definitions 30TAC§§116.10,116.11,116 .13,116.14 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORYAUTHORITYThe repealsare proposed underthe Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAAand approve all general policyof thecommission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997.



### 23 TexReg 2958 March 20, 1998 Texas RegisterThe proposed repeals implement Texas Health and Safety

Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. § 116 .10 . General Definitions. §116 .11 . Compliance Histon, Definitions. §116 .13. Flexible Permit Definitions. $116 .14. Standard Permit Definitions. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803285 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 30 TAC §§116

.10, 116 .11, 116.13-116.15 STATUTORYAUTHORITY The new sections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules-consistent with the policy and purpose of the TCAA-and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. SS116.10 . General Definitions. Unless specifically defined in the TCAA or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to themin the field of air pollution control . In addition to the terms which are defined by the TCAA, and in § 101 .1 o f this title (relating to Definitions), the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly_ indicates otherwise.

M Actual emissions-The highest rate of emissions of an air contaminant actually achieved froma qualified facility within the 120-month period prior to the change. This rate cannot exceed any applicable federal or state emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under §116.116(e) of this title (relating to Changes to Facilities) .

Allowable emissions-The authorized rate of emissions of an air contaminant from a facility as determined in accordance with this section. This rate cannot exceed any applicable state or federal emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under § l 16.116(e) of this title.

Permitted facility-For a facility with a preconstruction permit under this chapter, the allowable emissions shall be any emission limit established in the permit on a MAERT and any emission limit contained in representations in the permit application which was relied upon in issuing the permit, plus any allowable emissions authorized by an exemption under Chapter 106 of this title (relating to Exemptions fromPermittingl

(B) Exempted facility-For a facility operating under Chapter 106 of this title, the allowable emissions shall be the least of the emissions rate allowed in Chapter 106, Subchapter A of this title (relating to General Requirements), the emissions rate specified in the applicable exemption, or the federally enforceable emission rate established on a PI-8 form . (C) Grandfathered facility-For a qualified grandfathered facility, the allowable emissions shall be the maximumannual emissions rate after the implementation of any air pollution control methods to become a qualified facility, plus 10%of the maximumannual emissions rate prior to the implementation of such control methods, but in no case shall the allowable emissions be greater than the maximumannual emissions rate prior to the implementation of such control methods. The maximum annual emissions rate is the emissions rate at the maximumannual capacity according to the physical or operational design of the facility, data fromactual operations over a period of no more than 12 months that demonstrates the maximum annual capacity, or other information that demonstrates the maximum annual capacity. Except where a grandfather facility has been modified, the allowable emissions for the modification shall be determined as a permitted facility.

_(D) Standard permit facility-For a facility authorized by standard permit, other than §116.617(2) of this title (relating to Standard Permits for Pollution Control Projects), the allowable emissions shall be the maximum emissions rate represented in the registration for the standard permit.

Special exemption facility-For a facility operating under a special exemption, the allowable emissions shall be the emissions rate represented in the original special exemption request.

~F The allowable emissions for a qualified facility shall not be adjusted by the voluntary installation of controls.

(3) Best available control technology (BACT)-BACT with consideration given to the technical practicability and_ the economic reasonableness of reducing or eliminating emissions from the facility. Facility-A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment . A mine, quarry, well test, or road is not a facility.

_(5) Federally enforceable-All limitations and conditions which are enforceable by the EPA, including:

those requirements developed under Title 40 of the Code of Federal Regulations (CFR) Parts 60 and 61 (40 CFR 60 and 61) ; (PI Chapter 113, Subchapter C of this title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR 63)) ;

(Q requirements within any applicable state implementation plan (SIP) ;

any permit requirements established under 40 CFR §52.21 ; or any permit requirements established under regulations approved under 40 CFR Part 51, Subpart I, including permits 

### PROPOSED RULES March 20, 1998 23 TezReg 2 959issued under the EPA-approved programthat is incorporated into the

SIP and that expressly requires adherence to any permit issued under such program

. (6) Grmdflthered facility-Any facility that is not a new facility since it was constructed prior to the permit requirements of this chapter.

Q Lead smelting plant-Any facility which produces purified lead by melting and separating lead frommetal and nonmetallic contaminants and/or by reducing oxides into elemental lead. Rawmaterials consist of lead concentrates, lead-bearing ores or lead scrap, d_rosses, or other lead-bearing residues . Additional processing may include refining and alloying . A facility which only remelts lead bars or ingots for casting into lead products is not a lead smelting plant.

_(8) Maximumallowable emissions rate table (MAERT)- A table included with a preconstruction permit issued under this chapter that contains the allowable emission rates established by the permit for a facility.

Modification of existing facility-Any physical change in or change in the method of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the facility into the atmosphere or that results in the emission of any air contaminant not previ ously emitted. The termdoes not include:

(_A) insignificant increases in the amount of any air contaminant emitted that is authorized by one or more commission exem ptions; _

insignificant increases at a permitted facility; -(Q maintenance or replacement of equipment components that do not increase or tend to increase the amount or change the characteristics of the air contaminants emitted into the atmoshp ere; an increase in the annual hours of operation unless the existing facility has received a preconstruction permit or has been exempted under the TCAA §382 057, frompreconstructton permit requirements; a physical change in or change in the method of operation of a facility that does not result in a net increase m allowable emission of any air contaminant and that does not result in the emission of any air contaminant not previously emitted, prov ided that the facility: has received a preconstruction permit or permit amendment or has been exempted under the TCAA, §382.057, from preconstruction permit requirements no earlier than 120 months before the chan ge will occur; or

ii uses regardless of whether the facility has received a preconstruction permit or permit amendment or has been exempted under the TCAA 5382.057 an air pollution control method that is at least as effective as the BACT that the commission required or would have required for a facility of the same class or type as a condition of issuing a permit or permit amendment 120 months before the change w

ill occur; a physical change in or change in the method of operation of a facility where the change is within the scope of a flexible permit; or

n a change in the method of operation of a natural _gas processing treating or compression facility connected to or part of a natural gas gathering or transmission pipeline which does not result in an annual emission rate of any air contaminant in excess of the volume emitted at the maximumdesigned capacity, provided that the facil ity is one for which:

construction or operation started on or before September 1 1971 and at which either no modification has occurred after September 1 1971 or at which modifications have occurred only under Chapter 106 of this title: or

ii construction started after September l, 1971, and before March 1 1972 and which registered in accordance wi th TCAA §382. 660, as that section existed prior to September 1, 1991 .

New facility-A facility for which construction is commenced after August 30, 1971, and no contract for construction was executed on or before August 30 1971 and that contract specified a beginning construction date on or before February 29, 1972.

( Ul Newsource-Any stationary source, the construction or modification of which is commenced after March 5, 1972.

Nonattainment area-A defined region within the state which is designated by the EPA as failing to meet the national am bient - -- air quality standard for a pollutant for which a standard exists. The EPA will designate the area as nonattainment under the provisi ons of FCAA, § 107(d) . Public notice-The public notice of application for a permit as required in this chapter.

Qualified facility-An existing facility that satisfies the criteria of either paragraph (9)(E)(i) or (ii) of this section. _

Source-A point of origin of air contaminants, whether privately or publicly owned or operated. $116.11. Compliance History Definitions. Unless specifically defined in the TCAA or in the rules of the commission the terms used by the commission have the meanings commonly ascribed to themin the field of air pollution control . In addition to the terms which are defined by the TCAA, and m§ 101 .1 of this title (relating to Definitions) the following words and terms, when used in §§116.120-116.126 of this title (relati ^ ; .:o Compliance History) shall have the following meanings unless the (;ontext clearly indicates otherwise.

Adjudicated. decision-Any conviction final order, judgment, or decree as follows:

a criminal conviction of the applicant in any court for violation of any lawof this state, another state or of the United States governing air contaminants;

a final order, Judgment, or decree of any court or administrative agency, or agreement entered into settlement of any legal or administrative action brought in a court or adm inistrative agency, addressing:

u the applicant's past performance or compliance with the laws and rules of this state, another state, or of the United States gov

erning air contaminants; or commission; or if the terms of any permit or order issued by the

an order of any court or administrative agency, whether final or not respecting air contaminants for the facility that is the subject of the permit application.

Compliance event-An adjudicated decision or compliance proceeding as defined in paragraphs (1) and (4) this section._(3) Compliance history-The record of an applicant's

adherence to air pollution control laws and rules of the State of Texas, other states, and of the United States except as provided in § 116.123 of this title (relating to Effective Dates) . The history shall be for the five-year period prior to the date on which the application for issuance, amendment, or renewal is filed. The compliance history shall include all compliance events, as defined in this section.

(4) Compliance proceeding-A notice of violation issued by the commission or other agency for which the commission has recommended formal enforcement action and has notified the applicant of such recommendation.

(5) Existing site-A plant property that is not a newsite. New site-A plant property having an operating history less than five years in length as of the date of application. ¢116 .13 . Flexible Perntit Definitions. The following words and terms, when used in this chapter, shall have the following m

eanings, unless the context clearly indicates otherwise. Emission cap-Emission limit for a specific air contaminant based on total emissions of that pollutant adjusted by an insignificant emissions factor fromall sources that are included in a flexible_ permit .

_(2) Expected maximumcapacity-The maximumcapacity of a facility according to its physical and operational design and planned operation.

(3) Individual emission limitation-Emission limit for a specific air contaminant not covered by an emission cap for an individual facil ity adjusted by an insignificant emissions factor. '11~ 6.14. Standard Permit Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(l) Off-plant receptor-For the purposes of Subchapter F ol zh_i s chapter (relating to Standard Permits) only, shall be defined ---iv recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or owner of the property upon which the facilities are located.

Oil and gas facility-For the purposes of Subchapter F of this chapter only, shall be defined as facilities which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface. These oil and gas facilities include, but are not limited to: oil or gas pro duction facilities; water injection facilities; carbon dioxide separation facilities; or oil or gas pipeline facilities consisting of one or more tanks, separators, dehydration units, free water knock-outs, gunbarrels, heater treaters, vapor recovery units, flares, pumps, internal combustion engines, gas turbines, compressors, natural gas liquid recovery units, or gas sweetening and other gas conditioning facilities. This definition does not include sulfur recovery

units. Sulfur recovery unit-For the purposes of Subchapter F of this chapter only, shall be defined as a process device whose primary purpose is to recover elemental sulfur fromacid gas. §116 .15 . Section 112(g) Definitions. The following words and terms, when used in Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g) 40 CFR Part 63)), shall have the following meanings, unless the context clearly_indicates otherwise. _(1) Affected source-The stationary source or group of stationary sources which, when fabricated (on-site), erected, or installed meets the criteria in §116.180(a)(1) and (2) of this title (relating to Applicability) .

(2) Control technology-Measures, processes, methods, systems, or techniques to limit the emission of HAPs including, but not limited to, measures that:

(A) reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution of materials, or other modifications;

(B) enclose systems or processes to eliminate emissions ; collect, capture, or treat such pollutants when released froma process, stack, storage, or fugitive emissions point:

_(D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification)-as provided in 42 United States Code 7412(h) ; or

(E) are a combination of subparagraphs (A)-(D) of this paragraph.

_(3) Electric utility steamgenerating unit-Any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that co-generates steamand electricity and supplies more than one-third of its potential electric output capacity and more than 25 megawatts_ electric output to any utility power distribution systemfor sale shall be considered an electric utility steamgenerating unit.

Greenfield site-A contiguous area under common control that is an undeveloped site.

_(5) Hazardous air pollutant (HAP)-Any air pollutant listed under the FCAA, § 112(b) .

(6) List of source categories-The Source Category List required by FCAA, § 112(c) .

Q Maximum achievable control technology emission limitation for new sources-The emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions that the executive director, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable by the constructed or_ reconstructed major source.

(8~ Process or production unit-Any collection of structures and/or equipment, that processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product . A single facility may contain more than one process or production unit.

(9) Research and development activities-Activities conducted at a research or laboratory facility whose primary purpose is to conduct research and development into newprocesses and products where such source is operated under the close supervision of technically trained personnel and is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner.

(10) Similar source-A stationary source or process that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed major source such that the_ source could be controlled using the same control technology, 

### PROPOSED RULES March 20, 1998 23 TexReg 2961This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803289 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Subchapter B

. New

Source ReviewPermits Permit Application 30 TAC§§116.110-116.112,116.114-116 .118 (Editor's note: The text of thefollowing sections proposedfor repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORYAUTHORITY . The repeals are proposed underthe Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve allgeneral policyof the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116.110. Applicability. §116.111 . General Application. §116 .112. Distance Limitations. §116 .114 . Application ReviewSchedule . §116.115

. General and Special Conditions. §116.116

. Changes to Facilities. §I16 .117 . Documentation and Notification of Changes to Qualified Facilities. §116 .118 . Pre-change Qualification. r This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803286 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Division 1. Permit Application 30TAC §§116.110-116.112,116.114-116.118 STATUTORYAUTHORITY The new sections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implementTexas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authorityof Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 11~ 6.110. Applicability. (a Permit to construct Any person who plans to construct any new

farilitv or to engage in the modification of any existing facility which may emit air contaminants into the air of this state shall either: obtain a permit under §116.111 of this title (relating to General Application);

(~ satisfy the conditions for a standard permit under the requirements in: Permits ; Subchapter F of this chapter (relating to Standard

(B) Chapter 32l Subchapter K of this title (relating to Concentrated Animal Feeding operations) ;

Chapter 332 of this title (relating to Composting) ; or Chapter 330 Subchapter N of this title (relating to Landfill Mining) ;

satisfy the conditions for a flexible permit under the requirements in Subchapter G of this chapter (relating to Fle~:ible Permits) ;_or satisfy the conditions for exempt facilities under Chapter 106 of this title (relating to Exemptions from Permitting) before any actual work is begun on the facility. _(b) Modifications to existing permitted facilities. Modifications to existing permitted facilities may be handled through the amendment of an existing permit or an existing flexible permit,

Exclusion Owners or operators of constructed or reconstructed facilities subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA § 112(g) 40 CFR Part 63)) are not authorized to use:

an exemption under Chapter 106 of this title; standard permits under Subchapter F of this chapter that do not meet the requirements of Subchapter C of thts chagter; or

§116116(e) of this title (relating to Changes to Facilities) . (0j Change in ownership. Lij Within 30 days after the change of ownership of a facility permitted under this chapter, the new owner shall notify the commission and certify the following: 

### 23 TexReg 2962 March 20, 1998 Texas Register(A) the date of the ownership change; (B) the name, address, phone number, and contact person for the newowner;

(_C) an agreement by the newowner to be bound by all permit conditions and all representations made in the permit application and any amendments and alterations; emitted; and (D) there will be no change in the type of pollutants

(E) there will be no increase in the quantity of pollutants emitted.

(2) The newowner shall comply with all permit conditions and all representations made in the permit application and any amendments and alterations.

Submittal under seal of Texas licensed professional engineer. Applications for permit or permit amendment with an estimated capital cost of the project above $2 million, and not subject to any exemption contained in the Texas Engineering Practice Act (TEPA), shall be submitted under seal of a Texas licensed professional engineer. However, nothing in this subsection shall limit or affect any requirement which may apply to the practice of engineering under the TEPA or the actions of the Texas Board of Professional Engineers. The estimated capital cost is defined in §116.141 of this title (relating to Determination of Fees). _(f) Responsibility for permit application. The owner of the facility or the operator of the facility authorized to act for the owner is responsible for complying with this section. 11§ 6 .111 . General Application. In order to be granted a permit, amendment, or special permit amendment, the application must include:

M a completed FormPI-1 General Application signed by an authorized representative of the applicant . All additional support information specified on the form must be provided before the applicatior i- complete;

Z) information which demonstrates that all of the following are met. Protection of public health and welfare.

The emissions fromthe proposed facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people.

(ii For issuance of a permit for construction or modification of any facility within 3,000 feet of an elementary, junior high/middle, or senior high school, the commission shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor fromthe facility may have on the individuals attending the school(s) .

(B) Measurement of emissions. The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission (TNRCC) Sampling Procedures Manual ."

(C) Best available control technology (BACT) . The proposed facility will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or el iminating the emissions fromthe facility.

(D) New

Source Performance Standards (NSPS) . The emissions from the proposed facility will meet the requirements of any applicable NSPS as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA under FCAA. §111, as amended.

_(E) National Emission Standards for Hazardous Air Pollutants (NESHAP) . The emissions fromthe proposed facility will meet the requirements of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA under FCAA, §112-as amended.

_(F) National Emission Standards for Hazardous Air Pollutants for Source Categories. The emissions fromthe proposed facility will meet the requirements of any applicable maximum achievable control technology standard as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA § 112, 40 CFR 63)) . (G) Performance demonstration. The proposed facility will achieve the performance specified in the permit application. The applicant may be required to submit additional engineering data after a permit has been issued in order to demonstrate further that the proposed facility will achieve the performance specified in the permit application. In addition, dispersion modeling, monitoring, or stack testing may be required.

(H) Nonattainment review . If the proposed facility is located in a nonattainment area, it shall comply with all applicable requirements in this chapter concerning nonattainment review . Prevention of Significant Deterioration (PSD) review . If the proposed facility is located in an attainment area, it shall comply with all applicable requirements in this chapter concerning PSD review

. (J) Air dispersion modeling. Computerized air dispersion modeling may be required by the executive director to determine air quality impacts froma proposed newfacility or source modification. (K) Hazardous air pollutants. If the proposed constructed or reconstructed facility is a major source for hazardous air pollutants, it shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g) 40 CFR Part 63)) . §116.112

. Distance Limitations. The following facilities must satisfy th e following distance criteria.

Lead smelters. Newlead smelting plants shall be located at least 3,000 feet fromany individual's residence where lead smelting operations have not been conducted before August 31, 1987. This subsection does not apply to:

QA) a modification of a lead smelting plant in operation on or before August 31, 1987;

(B) a new lead smelting plant or modification of a plant with the capacity to produce 200 pounds or less of lead per hour; or a lead smelting plant that was located more than 3,000feet from

the nearest residence when the plant began operations. Hazardous waste permits. Permits for hazardous waste management facilities shall not be issued if the facility is to 

### PROPOSED RULES March 20, 1998 23 TexReg 2963be located in the vicinity of specified public access areas under the

followin g circumstances.

No permit shall be issued for a newhazardous waste landfill or land treatment facility or an areal expansion of an existing facility if the boundary of the facility or expansion is to be located within 1,000 feet of an established residence, church, school, day care center, surface water body used for a public drinking water sup ply or dedicated public park.

(_B) No permit shall be issued for a newcommercial hazardous waste management facility or the subsequent areal expansion of such 1 facility or unit of that facility if the boundary of the unit is to be located within 1/2 mile (2,640 feet) of an established residence church school day care center, surface water body used for a public drinking water supply, or dedicated public park.

For a subsequent areal expansion of a new commercial hazardous waste management facility that is required to comply with subparagraph (B) of this paragraph, distances shall be measured from a residence church school, day care center, surface water body used for a public drinking water supply, or dedicated public park only if such structure water supply, or park was mplace at the time the distance was certified for the original permit .

No permit shall be issued for a newcommercial hazardous waste management facility unless the applicant demonstrates that the facility will be operated so as to safeguard public health and welfare and protect physical property and the environment . -

_(E) The measurement of distances shall be taken toward Lin established residence church school, day care center, surface water body used for a public drinking water supply, or dedicated public park that is in use when the permit application is filedwith the commission Therestrictions imposed by subparagraphs (A) (C) of this paragraph do not apply to a residence church, school, day care rantar, surface water body used for a public drinking water supply, ^r a dedicated public park located within the boundaries of a _commercial hazardous waste management faciltty, or pro perty owned by the permit applicant.

(_F) The measurement of distances shall be taken from a perimeter around the proposed hazardous waste management unit. The perimeter shall be no more than 75 feet fromthe edge of the proposed hazardous waste management unit. 11¢ 6.114. Applicafion ReviewSchedule . _(a) Review schedule. The executive director shall review permit applications in accordance with the following.

_(1) Notice of completion or deficiency. The executive director shall mail written notification informing the applicant that the application is complete or that it is deficient within 90 days of receipt of the application for a new permit or amendment to a permit or special permit . state: (A) If the application is deficient the notification must

the additional information required; and fi the intent of the executive director to void the application if information for a complete application is not submitted.

Additional information may be requested within 60 days of receipt of the information provided in response to the deficiency notification. _(2) Decision to approve or disapprove the application . The executive director shall mail written notice to the applicant of his decision to approve or not approve the application. If the applicant has provided public notification as required by the executive director, and no requests for public hearing or public meeting on the proposed facility have been received the executive director shall send notice within: (_A) 180 days of receipt of a completed permit application; or

(B) 150 days of receipt of a permit amendment or speci al permit amendment .

(3) Refund of permit fee. _(A) If the time limits provided 'in this section process an application are exceeded the applicant may appeal writing to the executive director for a refund of the permit fee.

(B) The permit fee shall be reimbursed if it _to in is determined by the executive director that the specified period was exceeded without good cause as provided in Texas Civil Statutes, Article 6252-13b.1, §3. (W Voiding of deficient application.

An applicant shall make a good faith effort to submit, in a timely manner, adequate information which demonstrates that the requirements for obtaining a permit or permit amendment are met in response toany deficiency notification issued by the executive director under the provisions of this section or §116 .131 of this title (relatmg to Public Notification Requirements) .

If an applicant fails to make such good faith effort, the executive director shall void the application and notify the applicant . If the application is resubmitted within six months of the voidance, it shall be exempt from the requirements of §116.140 of this title (relating to Applicability) . §116.115

. General and Special Conditions. _(a) General and special conditions. Permits, special permits, standard permits and exemptions may contain general and special conditions. General conditions Holders of permits special permits, standard permit s and exemptions shall comply with the followtng:

_(1) the general conditions contained in the permit document if issued or amended prior to August 16, 1994 ; or Q the following general conditions if the amendment is issued or amended on or after August regardless of whether they are specifically stated within document . permit or 16, 1994, the permit Voiding of permit Apermit or permit amendment under this chapter is automatically void if the permit holder does one of the following:

(i) fails to begin construction within 18 months of date of issuance_The executive director may grant a one-time 18- month extension to the date to begin construction;

ii discontinues construction for more than 18 consecutive months prior to completion; or able time. (iii) fails to complete construction within a reasonReport of construction progress. The permit holder shall report start of construction construction interruptions 

### 23 TexReg 2964 March 20, 1998 Texas Registerexceeding 45 days, and completion of construction. The report shall

be given to the appropriate regional office of the commission not later than 15 working days after occurrence of the event.

(C) Start-up notification. (i) The permit holder shall notify the appropriate air programregional office of the commission prior to the commencement of operations of the facilities authorized by the permit . The notification must be made in such a manner as to allowrepresentative of the commission to be present at the commencement of operations.

ii The permit holder shall provide a separate notification for the commencement of operations for each unit of pha~,ed construction, which may involve a series of units commencing operations at different times,

(D) Sampling requirements. _(i) If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures.

ii All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission.

iii The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling,_consultant.

Equivalency of methods. The permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit . Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit .

(F) Recordkeeping. The permit holder shall : (i) maintain a copy of the permit along with information and data sufficiAnt to demonstrate compliance with the permit, including produc .~.~_ cords and operating hours ;

li keep all records required by this paragraph in a file at the plant site. If, however, the facility normally operates unattended, records shall be maintained at the nearest staffed location within Texas specified in the application; make the records available at the request o personnel fromthe commission or any air pollution control program having jurisdiction;

iv comply with any additional recordkeeping requirements specified in special conditions attached to the permit and _(v) retain information in the file for at least two years follo

wing the date that the information or data is obtained.

Maximum allowable emission rates. The total emissions of air contaminants fromany of the sources of emissions must not exceed the values stated on the table attached to the permit entitled_ "Emission Sources-MaximumAllowable Emission Rates."

Maintenance of emission control . The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide notification for upsets and maintenance in accordance with §101 .6 and §101 .7 of this title (rel ating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping and Operational Requirements).

(I) Compliance with rules. fi) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the granting of the permit .

ii If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall be the standard by which compliance shall be demonstrated. iii Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit . (c) Special conditions. The holders of permits, special permits, standard permits, and exemptions shall comply with all special conditions contained in the permit document .

( l) Special conditions may be attached to a permit that are more restrictive than the requirements of Title 30 of the Texas Administrative Code.

L2) Special condition for written approval . LA) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:

(_i) a standard permit under Subchapter F of this chapter (relating to Standard Permits) ; or

(H) an exemption under Chapter 106 of this title (relating to Exemptions fromPermitting).

Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either: ment ; or under: (i) result in a significant impact on the air environcause the facility to become subject to review (1) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA §112(g) 40 CFR Part 63)) ; or

(II) the provisions in §116 .150 and §116.151 of this title (relating to Nonattainment Review) and §§116.160-116.163 of this title (relating to Prevention of Significant Deterioration Review) . 11§ 6 .116 . Changes to Facilities. (a) Representations and conditions. Conditions upon which a permit, special permit, or special exemption are issued include:

representations with regard to construction plans and _operation procedures in an application for a permit, special permit, or special exemption; and

any general and special conditions attached to the permit, special permit, or special_exemption itself. 

### PROPOSED RULES March 20, 1998 23 TexReg 2965(b) Permit amendments. Except as provided in subsection (e) of this section, the permit holder shall not vary fromany representation or permit condition without obtaining a permit amendment if the change will cause: (A) a change in the method of control of emissions;

(B) a change in the character of the emissions; or contaminant . (C) an increase in the emission rate of any air

Any person who requests permit amendments must receive prior approval by the executive director or the commission. Applications must be submitted with a completed Form PI-1 and are subject to the requirements of §116 .111 of this title (relating to General A

pplication . Any person who applies for an amendment to a permit that concerns a determination for constructed or reconstructed sources under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA § 112(Q) 40 CFR Part 63)) shall com ply with _the provisions in §§116 . 130-116.134, 116.136 and 116.137 of this_ title (relating to Public Notification and Comment Procedures) . (c) Permit alteration.

A permit alteration is: (&) a decrease in allowable emissions; or any change from a representation in an application general condition or special condition in a permit that does not cause: ) a cha nge in the method of control of emissions;

ii a change in the character of emissions; or iii an increase in the emission rate of any air contaminant. Requests for permit alterations that must receive prior approval by the executive director are those that: , result in an increase in off-property concentrations of air contaminants;

of all other permit alterations not specified in paragraph (2) of this subsection. A request for permit alteration shall include information sufficient to demonstrate that the change does not interfere with the owner or operator's previous demonstrations of compltance with the requirements of §116.111(3) of this title.

(5j Permit alterations are not subject to the requirements § 116.11 1(3) of this title.

Exemption under Chapter 106 of this title (relating to Exemptions from Permitting) in lieu of permit amendment or alteration.(11 A permit amendment or alteration is not required if the changes to the permitted facility qualify for an exemption under Chapter 106 of this title unless prohibited by peraut condition as

(B) involve a change in permit conditions; or affect facility or control equipment performance. The executive director shall be notified in writing provided in §116. 115 of this title (relating to General and Special Conditions All exempted changes to a permitted facility shall be incorporated into that facility's permit when the permit is amended or renewed. (e) Changes to qualified facilities.

Notwithstanding any other subsection of this section, a physical or operational change may be made to a qualified facility if it can be determined that th e change does not result in:

a net increase in allowable emissions of any air contaminant; and emitted. (B) the emission of any air contaminant not previously

In making the determination in paragraph (1) o f this subsection the effect on emissions of the following shall be considered: any air pollution control method applied to the qualified facility; any decreases in allowable emissions fromother qualified facilities at the same commission air quality account number that have received a preconstruction permit or permit amendment no earlier than 120 months before the change will occur; and

(C) any decrease in actual emissions from other qualified facilities at the same commission air quality account number that are not included in subparagraph (B) of this paragraph.

The determination in paraQraph (1) of this subsection shall be based on the allowable emissions for air contaminant categories and any allowable emissions for individual com pounds. If a physical or operational change would result memissions of a air contaminant category or compound above the allowable emissions for that air contaminant category or compound the amount above the allowable emissions must be offset by an equivalent decrease in emissions at the same facility or a different facility. In making this offset, the following applies.

The offset shall be based on the same time periods (e.g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur.

_(B) Emissions of different compounds same air contaminant category may be interchanged. within the

For allowable emissions for individual compounds any interchange shall adjust the emission rates for the different compounds in accordance with the ratio of the effects screening levels of the compounds.

For allowable emissions for air contaminant categories interchanges shall use the unadjusted em ission rates for the different comp

ounds. The effects screening level shall be determined by the executive director.

Q An air contaminant cateOory is a group o f related compounds such as volatile organic compounds particulate matter, nitrogen oxides and sulfur compounds.

Persons making changes to qualified facilities under this subsection shall comply with the applicable requirements of § 116. 117 of this title (relating to Documentation and No tificationof Changes to Qualified Facilities) and §116.118 of this title (relating

to Pre-change Qualification) .

As used in this subsection, the term "physical and operational change" does not include:

(A) construction of a newfacility; or _changes to procedures regarding monitoring, determination of emissions and recordkeeping that are required by a permit . _(6) Additional air pollution control methods may be implemented for the purpose of making a facility a qualified facility. The implementation of any additional control methods shall be subject to the requirements o

f this chapter. The owner or operator shall : (A) utilize additional control methods that are as effective as best available control technology (BACT) required at the time the additional control methods are implemented; or

(B) demonstrate that the additional control methods, although not as effective as BACT,_we - implemented to comply with a law, rule, order, permit, or implemented to resolve a documented citizen complaint.

_(7) For purposes of this subsection and § 116.117 of this title, the following subparagraphs apply.

Intraplant trading means the consideration of decreases in allowable and actual emissions from other qualified facilities in accordance wi th paragraph (2) of this subsection.

_(B) The allowable emissions fromfacilities that were never constructed shall not be used in intraplant trading.

The decreases in allowable and actual emissions shall be based on emission rates for the same time periods (e.g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur and for which an intraplant trade is desired. _(D) Actual emissions shall be based on data that is representative of the emissions a~c_tu )l!y achieved from a facility during the relevant time period (e .g., hourly or annual rate) .

The existing level of control may not be lessened for a qualified facility. ~t Use of credits. Notwithstanding any other subsection of this section, discrete emission reduction credits may be used to exceed permit allowables as described in § 101 .29(d)(4)(v) ofthis title (relating to Emission Credit Banking and Trading) if all applicable conditions of §101 .29 of this title are met. This subsection does not authorize any physical changes to a facility. ¢116 .117 . Documentation and Notification of Changes to Qualified Facilities. Persons making changes under § I 16.116(e) of this title (relating to Changes to Facilities) shall maintain documentation at the plant site demonstrating that the changes satisfy §116.116(e) of this title. If the plant site is unmanned, the regional manager may authorize an alternative site to maintain the documentation. The documentation shall be made available to representatives of the commission upon request . The documentation shall include:

quantification of all emission increases and decreases associated with the physical or operational change;

a description of the physical or operational change; a description of any equipment being installed; and (_4) sufficient information as necessary to show that the project will comply with § 116.150 and § 116.151 of this title (relating to Nonattainment Review) and §§116.160-116.163 of this title (relating to Prevention of Significant Deterioration Review) and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA §112(g) 40 CFR Part 63)) .

Persons making such changes to qualified facilities shall comply with the following notification requirements.

_(1) Annual report. For changes to qualified facilities when there is no intraplant trading under § 116.116(e)(2) of this title, an annual report shall be submitted to the appropriate regional office of the commission by August 1 of each year. The report shall include all changes made under § 116.116(e) during the immediately preceding annual period July 1-June 30 . This reporting period and the due date may be changed with the agreement of the commission's regional office. The annual report shall contain a PI-E formfor each change. The report need not include changes previously submitted by PI-E formto the commission under paragraphs (2) or (3) of this subsection or which have been incorporated into the permit for the facility. _(2) Post-change notification. Post-change notification shall be required for changes to qualified facilities for which there is intraplant trading belowthe reportable Emit. The notification shall be submitted on a PI-E formto the commission's NewSource Review Permits Division within 30 days after the_chan ge occurs.

3 Pre-change notification only. Pre-change notification shall be required if a physical or operational change at a qualified facility will affect compliance with a permit special condition. The notice shall be made to the commission prior to the change. It shall identify the affected special condition and indicate the change needed or the desire to remove the special condition fromthe permit . The permit holder is relieved from complying with the permit special condition upon the filing of the notice, provided the change complies with §116.116(e) of this title.

Pre-change notification and approval . Pre-change notification shall be required for changes to qualified facilities for which there is intraplant trading above the reportable limit. The notification of the change shall be submitted on a PI-E form to the commission's NewSource ReviewPermits Division before the change may occur. The change may occur after the receipt of written notification fromthe commission that there are no objections, or 45 days after the PI-E is received by the commission, whichever occurs first. Reportable limit. The executive director shall establish reportable limits. A reportable limit is either:

an emission rate that is adjusted based on a factor that accounts for a ratio of the effects screening levels of the different compounds and the difference in location of emissions involved in an intraplant trade; or an emission rate that results in a sumtotal of modeled ground level concentration for the account that shall not exceed two times the effects screening level . _(c) For facilities that have received a preconstruction permit, all changes for which the notification procedure of subsection (b) of this section has been used shall be incorporated into the permit when the permit is amended or renewed.

Nothing in this section shall limit the applicability of any federal requirement. 

### PROPOSED RULES March 20, 1998 23 TexReg 2967§ 116.118. Pre-change Qualification.

_(a) If either of the following conditions exists, it will be necessary to establish that a facility is a qualified facility before a physical or operational change may be made under the notification procedure of § 116 117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities) :

(1) the facility is a qualified facility on the basis of best _avail able control technology and the requirement for the facility type has not been previously established by the executive director; or

t22) the facility does not have allowable emissions established for an air contaminant relevant to the change in a maximum allowable emissions rate table, PI-8 form, or PI-E form . (_b) The pre-change qualification shall be made by submitting a PI-E form to the commission's New Source Review Permits Division The facility shall be qualified in accordance with the information contained in the PI-E form after receipt of written notification fromthe commission that there are no obiections, or 45 days after the PI-E formis received by the commission, whrchever occurs first The pre-change qualification may be submitted at the same time as 1 pre-change notification under $116 .117(b) of thi s title or at any other time'prior to making a change to a qualified facility. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803290 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Compliance History 30 TAC §§116.120-116

.126 (Editor's note: The text of the following sections proposedfor repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORYAUTHORITYThe repeals are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approveall general policyof the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382 .0541, concerningAdministration and Enforcement of Federal Operating Permit. §116.120

. Applicability

. §116.121 . Exemptions. §116.122

. Contents of Compliance History. §116.123

. Effective Dates. §116 .124. Public Notice ofCompliance History. 55116.125 . Preservation of Existing Rights and Procedures. §116.126 . Voidance of Permit Applications. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998 . TRD-9803287 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Division 2. Compliance History 30 TAC§§116

.120-116 .126 STATUTORYAUTHORITYThe new sections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997

. The proposed new

sections implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116.120

. Applicability. As part of the review of a construction permit amendment, or renewal : The executive director shall compile a compliance history for: _(A) the existing site when the application is for a new permit amendment or renewal at the existing site;

a site with similar facilities if any, owned or operated by the applicant in Texas when the application is for a new facility at a newsite The commission may require the applicant to indicate which facilities the applicant considers to be similar.

The applicant shall provide the commission with a compliance history for sites with similar facilities if an y, owned or op erated by the applicant in other states when: and (A) the application is for a new facility at a newsite; the applicant does not own or operate similar facilities in Texas.

If the applicant has no compliance history in the United States the applicant shall provide the com mission with a compli ance history for any similar facilities owned or operated by.

a person who is presently an officer, director, or agent of the applicant ;

a parent corporation subsidiary, or predecessor in interest of the applicant; 

### 23 TexReg2968 March 20, 1998 Texas Register(_C one who owns 20% or more of the applicant,

whether directly, as a shareholder, partner, beneficiary, or otherwise; or one who controls the applicant or has the ability to direct the conduct of the applicant . §116 .121 . Exemptions. The compliance history is not required if the total increased actual emissions of any specific substance (e .g., benzene, arsenic, etc.) at the site will be accompanied by greater than a 1 .1 to 1 reduction of the same specific substance at the site. § 116 .122. Contents of Compliance History . The compliance history shall include all of the following compliance events and associated information involving the facility that is the subject of the permit application:

(1) f or Texas facilities: criminal convictions known to the commission and civil orders, judgments, and decrees identified by stating:

stating : (i) the style of the case;

ii the tribunal issuing the conviction or judgment ; the docket number and the date of action; and iv the general nature of the alleged violation; ( B) administrative enforcement orders identified by (J the name or style of action; (ii) the agency issuing the order; iii the docket number and the date of the order; and iv the general nature of the alleged violation;

(C) compliance proceedings ider'iFed by stating: (i) the name or style of ac: :, . . (ii) the general nature of the alleged violation; for United States facilities outside Texas: criminal convictions and civil judgments identified by stating:

stating:

and the style of the case;

ii the tribunal issuing the conviction or judgment ; the docket number and date of action; and (iv) the general nature of the alleged violation; administratiLe enforcement orders identified by the name or style of action; the agency issuing the order; the docket number and the date of the order; iv the general nature of the alleged violation; for notices of violation issued by the EPA: the name of the action; notice; and (ii) the EPA identification number and date of iii the general nature of the alleged violation. (b) A violation of fugitive emission monitoring and recordkeeping requirements imposed either by §101 .20(l) and (2) of this title (relating to Compliance with Environmental Protection Agency Standards), or state implementation plan requirements applicable to major sources in nonattainment areas shall not be included in the compliance history where : (1) the violation occurred after the effective date of this rule, has been the subject of a commission administrative enforcement action, and the commission classified the violation as not being subject to compliance history review : or (2) the violation occurred during the five years preceding the effective date of this rule and has been the subject of a commission administrative enforcement action in which:

_(A) the commission did not classify the violation as either major seriousness or major impact for the purpose of administrative review ; and (B) the commission assessed a total administrative, penalty of less than $20,000 for the violation. _(c) The commission may request an analysis of the significance of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application. The commission request shall list specific compliance events requiring such an analysis. §116.123. Effective Dates.

The requirements under §§ 116.120-116.126 of this title (relating to Compliance History) apply only to applications filed on or after December 9, 1992.

For applications filed: (_1) before June 1, 1993, neither the commission nor the applicant is required to include compliance events occurring before June 1,1988; on or after June t, 1993, neither the commission nor the applicant is required to include compliance events occurring more than five years prior to the date on which the application_ is filed. 11§ 6.124 . Public Notice of Compliance Historv. When public notice is required under §116 .131 of this title (relating to Public Notification Requirements), the applicant shall include the following statement in the notice: "The facility's compliance file, if any exists, is available for public reviewin the regional office of the Texas Natural Resource Conservation Commission." §116 ._125 .-_ Preservation off-xisting_Rights andProcedures. Nothing in this subchapter (concerning Compliance History) shall :

diminish the rights of any party in a contested case hearing to raise any issue authorized by Texas Health and Safety Code, §382.0518(c) ;

_(2) diminish the rights of any person to request and obtain compliance history information fromthe commission;

limit the authority of the commission to request and consider any other information that is relevant to the application under the law ; or (4) create any right in third parties which did not exist before the effective date of this subchapter. 

### PROPOSED RULES March 20, 1998 23 TexReg 290`s116.126. Voidance of Permit Applications.

If an applicant does not submit compliance history information within 180 days after written request from the executive director, the commission will void the permit application. The applicant shall also forfeit the fees associated with the permit application. A new permit application shall be required for further consideration by the commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filedwith the Office of the Secretaryof State on March 6, 1998. TRD-9803291 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Division _3. Public Notification and Comment Procedures 30TAC §§116.130-116.134, 116.136, 116.137 STATUTORYAUTHORITY . The amendments are proposed under the Texas Health and Safety Code, -TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implementTexas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 55116 .130 . Applicability. (a) Any person who applies for a new permit or permit renewal shall be required to publish notice of_the intent to construct a newfacility or modify an existing facility or renewa permit . The notice shall be published in a newspaper in general circulation in the municipality where the facility is located or to be located. Any person who applies for a permit amendment shall provide public notification as required by the executive director. (b) Upon written request by the owner or operator of a facility which previously has received a permit or special permit from the commission [TexasA-iF Control Board], the executive director, or designated representative may exempt the relocation of such facility fromthe requirements of this section if there is no indication that operation of the facility at the proposed newlocation will significantly affect ambient air quality and no indication that operation of the facility at the proposed newlocation will cause a condition of air pollution. Applications subject to the requirements of Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g) 40CFRPart 63)) whether for construction or reconstruction, are subject to the public notice requirements of this section. §116 .131 . Public Notification Requirements. (a) Notification by applicant. If the application is complete. for any permit subject to the FCAA [Federal Clean Aif Act (FGAtt)], Title I . Part C or D, or to Title 40 Code of Federal Regulations (CFR), Part 51 .165(b), the executive director shall state a preliminary determination to issue or deny the permit and require the applicant to conduct public notice of the proposed construction. If an application is received for a permit not subject to the FCAA, Part C or D, or to 40 CFR Sl .l65(b), the executive director shall require the applicant to conduct public notice of the proposed construction. In all cases, public notice shall include the information specified in § 116.132 of this title (relating to Public Notice Format) and the applicant shall provide such notice using each of the methods specified in § 116.132 of this title. The executive director may specify that additional information needed to satisfy public notice requirements of 40 CFR §52.21 also be included in the notice published under [puf&uant to] §1 t6.132 of this title. (b) Availability of application for review . The executive director shall make the completed application (except sections relating to confidential information) and the preliminary analyses of the application completed prior to publication of the public notice available for public inspection during normal business hours at the commission's [Texas Amir Control Beard (T-ACB)] Austin office and at the appropriate commission [T-AC13] regional office in the region where construction is proposed throughout the comment period established in the notice published under [pufsruaet to] §1 16.132 of this title [`'°~

'^'°"n"-g to P-ubl+s Notice FeFmat)] . Ss116 .132. Public Notice Format. (a) Publication in public notices section of newspaper. At the applicant's expense, notice of intent to obtain a permit to construct a facility, modify an existing facility, or to seek permit renewal review shall be published in the public notice section of two successive issues of a newspaper of general circulation in the municipality in which the facility is located or is proposed to be located, or in the municipality nearest to the location or proposed location of the facility. The notice shall contain the following information:

(1)-(5) (No change.) (6) preliminary determination of the executive director to issue or not issue the permit (for permits subject to the FCAA [Fedeml Clean Aif tlet], Title I, Part C or D, or to 40 Code of Federal Regulations 51 .165(b)) ;

(7) location and availability of copies of the completed permit application and the executive director's [Texas tkif Control Bear-d's fTA ] preliminary analyses;

(8)-(9) (No change.) (10) notification that a person who may be affected by emission of air contaminants fromthe facility is entitled to request a hearing in accordance with commission [TAC43] rules; and

(11) name, address, and phone number of the appropriate commission [regional TACIR] office to be contacted for further information. (b) Publication elsewhere in the newspaper. Another notice with a size of at feast 96.8 square centimeters (15 square inches) and whose shortest dimension is at least 7.6 centimeters (three inches) shall be published in a prominent location elsewhere in the same issue of the newspaper and shall contain the information specified in subsection (a)(l)-(4) of this section and note that additional information is contained in the notice published under [pufsuam to] subsection (a) of this section in the public notice section of the same issue. 

### 23 TexReg2970 March 20, 1998 Texas Register(c) Additional alternate language public notice. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education programas required by the Education Code, Chapter 29, Subchapter B [ ~'~'.'0 ; ], and 19 TAC §89.1205(a) [,~'~59-2(a)] or if either school has waived out of such a required bilingual education programunder the provisions of 19 TAC §89.1205(Q) [§S9 :?(g)] . Schools not governed by the provisions of 19 TAC §89.1205 [§89-2] shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements.

(1) The applicant shall publish an additional notice at least once in each alternate language in which the bilingual education program is taught . If the nearest elementary or middle school has waived out of the requirements of 19 TAC §89.1205(a) [y89 :2(a}] under 19 TAC §89.1205(Q) [§89 :2(,-)], the notice shall be published in the alternate languages in which the bilingual education program would have been taught had the school not waived out ofthe bilingual education program

. ~ (2)-(8) (No change.) (d) Exemptions from alternate language notification. Elementary or middle schools that offer English as a second language under 19 TAC §89.1205(e) [ §Q9 ."a) ], and are not otherwise affected by 19 TAC §89.1205(a) [§89.2(a)], will not trigger the requirements of subsection (c) of this section. §116 .133. Sign Posting Requirements._ (a) At the applicant's expense, a sign or signs shall be placed at the site of the proposed facility declaring the filing of anapplication for a permit and stating the manner in which the commission [ Texas Air Gentfel Beafd ('1z4CB-)] may be contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements:

(1)-(4) (No change.) (5) signs shall include the words "Texas Natural Resource Conservation Commission" ["Texas Aif Centre! Beard"], and t ~ddress of the appropriate commission [TACB] regional office in no it s3 than one-inch boldface capital lettering and 3/4-inch boldface lower case lettering; and

(6) signs shall include the phone number of the appropriate commission [TkC13 regional] office in no less than two-inch boldface numbers. (b) (No change.) (c) Each sign placed at the site must be located within ten [-18] feet of each (every) property line paralleling a street or oth_er public thoroughfare. Signs must be visible fromthe street and spaced at not more than 1,500-foot intervals. A minimumof one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare. The commission [TAGT3] may approve variations from these requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public. (d) The commission [TAGR] may approve variations from the requirements of subsection (c) of this section if the applicant has demonstrated that it is not practical to comply with the specific requirements of subsection (c) of this section and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval fromthe commission [T4GB] under this subsection must be received before posting signs for purposes of satisfying the requirements of this section. (e) (No change.) (t) Alternate language sign posting. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by the Education Code, Chapter 29, Subchapter B [c'' ], and 19 TAC §89.1205(a) [ §Q ] or if either school has waived out of such a required bilingual education programunder the provisions of 19 TAC §89.1205(g) [SQ~°

.2(g) ] . Schools not governed by the provisions of 19 TAC §89.L205(a) [*89,2 ] shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements.

(1) The applicant shall post an additional sign in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC §89 .1205(a) [§89

:2(-a)] under 19 TAC §89.1205(Q) [x49."^)~-~- ], the alternate language signs shall be published in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program . (2)-(4) (No change.) (g) Exemption fromalternate language sign posting. Elementary or middle schools that offer English as a second language under 19 TAC §89.1205(e) [§Q° . ], and are not otherwise affected by t9 TAC §89.1205(a) [§S9.2(a)], will not trigger the requirements of subsection (f) of this section. §116.134. Notification ofAffected Agencies. When newspaper notices are published in accordance with §116.132 of this title (relating to Public Notice Format), the permit applicant shall furnish a copy of such notices and date of publication to the commission [Texas Air Eentrel Beard (T~kCn) ] in Austin; the EPA (United States Ffwifenfneetal Preteetio** tlgenc-y) regional administrator in Dallas; all local air pollution control agencies with jurisdiction in the county in which the construction is to occur; and the air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions from the newor modified facility. Along with such notices furnished to the commission [TAGB], the permit applicant shall certify that the signs required by §116 .133 of this title (relating to Sign Posting Requirements) have been posted in accordance with the provisions of that section. §116 .136 . Public Comment Procedures. (a) Comment period. Interested persons may submit written comments, including requests for public hearings under TCAA [ uflder Texas Clean Aif Aet], §382.056, on the permit application and on the executive director's preliminary determination or analysis [decisieR to isstte er net te issue the petfftk] . The public comment and timely hearing requests shall be processed under Chapter 55, Subchapter B of this title (relating to Hearing Requests, Public Comment) . (b) (No change.) §116 .137 . Notification of Final Action by the Texas Natural Resource Conservation Commission [Te*as Atf Centre Boar,4] . (a)-(b) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. 

### PROPOSED RULES Mareh 20, 1998 23 TexReg2971TRD-9803292

Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Division 4

. Permit Fees 30TAC § §116.140, 116.141, 116.143 STATUTORY AUTHORITY The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. § 116.140

. Applicability. Any person who applies for a permit to construct a newfacility or to modify an existing facility, or for an amendment to an existing permit under [persuaat te] §116 .110 of this title (relating to Applicability) shall remit, at the time of application for such permit, a fee based on the estimated capital cost of the project. The fee will be determined as set forth in § 116

.141 of this title (relating to Determination of Fees) . Fees will not be charged for [eperatieg petrnits;] permit alterations, amendments to special permits, [standard exeffqAiens~ ;] site approvals for permitted portable facilities, changes of ownership, or changes of location of permitted facilities. '-11. Determination of Fees. (a) (No change.) (b) The following fee schedule may be used by a permit applicant todetermine the fee to be remitted with a permit application.

(1) If the estimated capital cost of the project is less than $300,000 or if the project consists of newfacilities controlled and operated directly by the federal government [for whiel~ an appleatiea ;s >;ibmitted after january 4, -1-9$~L] and the federal regulations for Prevention of Significant Deterioration (PSD) Reviewdo not apply, the fee is $450

. The provisions of subsections (c) and (d) of this section do not apply toa project consisting of new facilities controlled and operated directly by the federal government .

(2) (No change.) (c) If the estimated capital cost of the project is less than $50 million, the permit applicant shall include a certification that the estimated capital cost of the project is correct. Certification of the estimated capital cost of the project may be spot-checked and evaluated for reasonableness during permit processing. The reasonableness of project capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed as follows.

(1) Direct costs are as follows: (A) process and control equipment not previously owned by the applicant and not currently authorized under this chapter [ perfflitted iff Texas] ;

(B)-(G) (No change .) (2) (No change.) (d)-(e) (No change.) § 116 .143. Payment of Fees. All permit fees will be remitted in the formof a check or money order made payable to the Texas Natural Resource Conservation Commission or TNRCC [Texas Aif C-erttrel Beard (TA .CB)] and delivered with the application for permit or amendment to the TNRCC, P O

. Box 13088, MC 214, Austin, Texas 78711-3088 [TACB, ' ~-~;-24 gark 3-5 C-irele-, Austin, Texas 787-53] . Required fees must be received before the agency will begin examination of the application.

(l) (No change.) (2) Return of fees. Fees must be paid at the time an application for a permit or amendment is submitted. If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, onehalf of the fee will be refunded except that the entire fee will be refunded for any such application for which an exemption under Chapter 106 of this title (relating to Exemptions from Permitting-) [a standard exem-ptieff] is allowed. No fees will be refunded after a deficient application has been voided or after a permit or amendment has been issued by the agency. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretaryof State on March 6, 1998. TRD-9803293 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Division _5. Prevention of Significant Deterioration Review 30TAC §116

.160, §116.161 STATUTORYAUTHORITY The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policyof the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implementTexasHealth and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116.160. Prevention of Significant Deterioration Requirements. (a) Each proposed new major source or major modification in an attainment or unclassifiable area shall comply with the Pre

### 23 TexReg 2972 March 20, 1998 Texas Registervention of Significant Deterioration (PSD) of Air Quality regulations

promulgated by the EPA [United States Environmental Protection Agency ~~c ] in Title 40 Code of Federal Regulations (CFR) at 40 CFR 52.21 as amended June 3, 1993 (effective June 3, 1994) and the Definitions for Protection of Visibility promulgated at 40 CFR 51 .301, hereby incorporated by reference. (b)-(d) (No change.) § 116 .161 . Source Located in an Attainment Area with a Greater Than De Mininus Impact. The commission [Texas Ait C-entrel Beard] may not issue a permit to any newmajor stationary source or major modification located in an area designated as attainment or unclassifiable, for any National Ambient Air Quality Standard (NAAQS) under FCAA [pursttanf to the Federal Clean Aif Act], §107, if ambient air impacts from the proposed source would cause or contribute to a violation of any NAAQS. In order to obtain a permit, the source must reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to eliminate the predicted exceedances of the NAAQS. A major source or major modification will be considered to cause or contribute to a violation of a NAAQS when the emissions fromsuch source or modification would, at a minimum, exceed the de minimis impact levels specified in §101 .1 [§-11b-10] of this title (relating to [6enefal] Definitions) at any locality that is designated as nonattainment or is predicted to be nonattainment for the applicable standard. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803294 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 Division 6. Emission Reductions: Offsets 30 TAC §116.170, §116

.174 STATUTORY AUTHORITYThe amendments are proposed under the Texas Health and Safety Code, TCAA, §§382:017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authorityof Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116 .170 . Applicabilityfor Reduction Credits. At the time of application for a permit in accordance with this chapter, any applicant who has effected air contaminant emission reductions may also apply to the executive director to use such emission reductions to offset emissions expected fromthe facility for which the permit is sought, provided that the following conditions are met. (1) The emission reductions are not required by any provision of the Texas State Implementation Plan as promulgated by the _EPA [United States E^. . :-^*~^~e^t^'* D~^~,--.-o.e^" ~*o** ~^~ Agency] in 40 Code of Federal Regulations, Part 52, Subpart SS, nor by any other federal regulation under the FCAA [Federal Clean A-if A10-t], as amended, such as NewSource Performance Standards. Minimum offset ratios as specified in Table 1 of § 116.12 of this title (relating to Nonattainment ReviewDefinitions) shall be used in areas designated as nonattainment areas.

(2) (No change.) (3) Emissions increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source, shall be allowed to be offset by alternative or innovative means, provided the following conditions are met :

(A) (No change.) (B) the source demonstrates to the satisfaction of the commission [Texas A'rf Control Beard (,ACB) ] that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions incfeases beyond allowable levels, that all available offsets are being used. and that sufficient offsets are not available to the source;

(C) (No change.) (D) the source will comply with an alternative measure, imposed by the commission [T,4EB], designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the commission [ TAGB] may impose an emissions fee to be paid which shall be an amount no greater than 1 .5 times the average cost of stationary source control measures adopted in that area during the previous three years. §116 .174 . Determination by Executive Director To Authorize Reductions. The executive director may grant authority to a permit applicant to use prior emission reductions and emission reductions granted to the ar ; ;'-Ant by another entity (either public or private) in accordance w ;, ., y116.170 of this title (relating to Applicability for Reduction Credits) if the commission [Texas Ai-r Control Board] determines that the prior emission reductions have, in fact, occurred and, when considered with other emission reductions that may be required by the permit as well as contaminants that will be emitted by the new source, will result in compliance with § 116.150[ (b-)] of this title (relating to NewMajor Source or Major Modification in Ozone Nonattainment Areas [Requ-ired]), §116.151 of this title (relating to NewMajor Source or Major Modification in Nonattainment Areas Other Than Ozone ), § 116.160 of this title (relating to Prevention of Significant Deterioration Requirements), and § 116.162 [ § " ] of this title (relating to Evaluation of Air Quality Impacts), as applicable, in the area where the newsource is to be located. Prior as well as future emission reductions to be used as an offset shall be made conditions for granting authority to construct the proposed new source and shall be enforced. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Officeof the Secretaryof State on March 6, 1998. TRD-9803295 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission 

### PROPOSED RULES March 20, 1998 23 TexReg 2973Proposed date of adoption: June 17, 1998

For further information, please call : (512) 239-1966 Subchapter C

. Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g) 40 CFR Part 63) 30TAC §§116

.180-116 .183 STATUTORYAUTHORITY The new sections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implementTexas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116 .180 . Applicability. (a The provisions of this subchapter are intended to implement FCAA §112(g) Modifications and 40 Code of Federal Regulations Part 63 Hazardous Air Pollutants: Regulattons Governing Constructed or Reconstructed Major Sources Subpart B, Requirements for Control Technology. For purposes of tlus subchapter:

(1) "Construct a major source" means the following :

to fabricate erect or install at any green field site a stationary source or group of stationary sources which is located within a contiguous area and under common control an d which emits or has the potential to emit ten tons per year of any hazardous air pollutant (HAP) or '5 tons per year of any combination of HAPs; fabricate erect or install at any developed site 1 newprocess or production unit which in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAPs unless the process or production unit satisfies clauses (i)-(vi) of this subparagraph:

W all HAPs emitted by the process or production unit that would otherwise be controlled under the reguirements of this subchapter will be controlled by emission control equipment which was previously installed at the same site as the process or production unit; HAP emissions: ii either of the following regarding control of

(_I) the executive director has determined within a period of five years prior to the fabrication erection, or installation of the process or production unit that the existing emission control equipment represented best available control technolog y (PACT), lowest achievable emission rate (LAER) under Title 40 Code of Federal Regulations (CFR) Part 51 or 52 toxtcs-best avail able control technology (T-BACT) or maximum achievable control technology (MACT) based on state air toxic rules for the category of p ollutants which includes those HAPs to be emitted by the process or production unit; or the executive director determines that the control of HAP emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other wellcontrolled similar sources (i .e, equivalent to the level of control that would be provided by a current BACT, LAER, T-BACT, or state air toxic rule MACT determination) ;

iii the executive director determines that the percent control efficiency for emissions of HAP fromall sources to be controlled by the existing- control equipment will be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion of the newprocess or production unit;

(_iv) the executive director has provided notice and an opportunity for public comment concerning its determination that criteria in clauses (i)-(iii) of this subparagraph apply and concerning the continued adequacy of any prior LAER . BACT T-BACT, or state air toxic rule MACT determination; '

(y .2 if any commenter has asserted that a prior LAER, BACT, T-BACT or state air toxic rule MACT determination is no longer adequate the executive director has determined that the level of control required by that prior determination remains adequate; and vi any emission limitations work practice requirements or other terms and conditions upon which the determinations in clauses (i)-(v) of this subparagraph by the executive director are predicated will be construed by the executive director as appltcable requirements under FCAA §504(a) and either have been incorporated into any existing permit issued under Chapter 122 of this title (relating to Federal Operating Permits) for the affected facility or will be incorporated into such permit upon issuance.

"Reconstruct a major source" means the replacement of components at an existing, process or production unit that mand of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAP, whenever:

the fixed capital cost of the newcomponents exceeds 50% of the fixed capital cost that would be required to construct a comparable process or production unit; and

it is technically and economically feasible for the reconstructed major source to meet the applicable MAC T emission limitation for newsources established under this subchapter. (~ The requirements of this subchapter apply to an owner or operator who constructs or reconstructs a major source of HAPs after June 29 1998 the effective date of § 112(g)(2)(B), and the approval date of 1 federal operating permit program in Texas or local jurisdiction in which the major source is or wo uld be located, unless the maior source in question has been specifically regulated or exempted fromregulation under a standard issued under the FCAA, § 112(d), (h), or (j) and incorporated in another subpart of Part 63, or the owner or operator of such major source has received all necessary air quality permits for such construction or reconstruction prolect before the effective date of § 112(g)(2)(B) . Administratively complete applications submitted prior to June 29 1998 and prior to approval of a federal operating permit programin Texas are not subject to the requirements of this subchapter.

Sources subject to the requirements of this subchapter are not eligible to use a standard permit under Subchapter F of this chapter (relating to standard Permits) unless the terms and conditions of the specific standard permit meet the reqmrements of this subchapter. §11 6 .181 . Exclusions. The requirements of this subchapter do no t apply to electric utility steamgenerating units unless and until such ti me 

### 23 TexReg2974 March 20, 1998 Texas Registeras these units are added to the source category list under FCAA,

§ l 12(c)(5) . (b) The requirements of this subchapter do not apply to stationary sources that are within a source category that has been deleted fromthe source category hst under FCAA, §112(c)(9) . _(c) The requirements of this subchapter do not apply to research and development activities, as defined in 40 Code of Federal Regulations, §63.41 . (d) _Nothing in this subchapter shall prevent a state or local agency from imposing more stringent requirements than those contained in this subchapter. y5116.182. Application. Consistent with the requirements of 40 Code of Federal Regulations, §63.43 (concerning maximum achievable control technology determinations for constructed and reconstructed major sources), the owner or operator of a new facility (major source) or the reconstruction of an existing facility (as defined in §116.15 of this title (relating to Section 112(g) Definitions) shall submit a permit application as described in § 116

.110 of this title (relating to Applicability) for those sources subject to an approved federal operating permit programunder Chapter 122 of this title (relatinpto Federal Operating Permits) . §116 .183 . Public Notice Requirements. If the proposed newfacility or reconstructed facility is a major source for hazardous air pollutants, it shall comply with the public notice requirements contained in §116.I30 of this title (relating to Applicability) . This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretaryof Stateon March 6, 1998. TRD-9803296 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 . For further information, please call : (512) 239-1966 

### Subchapter D

. Permit Renewals 30TAC§§116

.310-116.314 (Editor's note: The text of the following sections proposedfor repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORYAUTHORITY . The repeals are proposed underthe Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve allgeneral policyof the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. $116.310. Notification of Permit Holder. fi116.311 . Permit Renewal Application. §/16 .312. Public Notification and Comment Procedures. §116 .313. Renewal Application Fees. §116 .314 . ReviewSchedule. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretaryof Stateon March 6, 1998. TRD-9803288 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 STATUTORY AUTHORITY The new sections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implementTexas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116 .310 . f F'? icr,tlon of Permit Holder. The executive director shall provide written notice to the permit holder that the permit is scheduled for review . Such notice must be provided by certified or registered United States mail no less than 180 days prior to the expiration of the permit. The notice must specify the procedure for filing an application for review and the information to be included in the application. Under Texas Civil Statutes Article 9027, the commission shall exempt a permit holder fromany increased fee or other penalty for failure to renew the permit if the individual establishes, to the satisfaction of the commission, that the failure to renewin a timely manner occurred because the individual was on active duty in the United States Armed Forces serving outside the State of Texas. 11§ 6 .311 . Permit Renewal Application. In order to be granted a permit renewal, the permit holder shall submit information in support of the application which demonstrates that:

the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments, and any previously granted renewal, unless otherwise authorized for a qualified facility;

the facility meets the requirements of any applicable NewSource Performance Standards as listed under Title 40 Code of 

### PROPOSED RULES March 20, 1998 23 TexReg 2975Federal ReQulations (CFR) Part 60 promulgated by the EPA under

the authority of the FCAA, §111, as amended;

L3~ the facility meets the requirements of any applicable emission standard for hazardous air pollutants as fisted under Title 40 CFR Part 61 promulgated by EPA under the authority of the FCAA, § 1 12, as amended; and

. (4) the facility meets the requirements of any applicable maximum achievable control technology standard as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA § 1 12, 40 CFR 63)) .

(_5) the facility meets the requirements of Subchapter C of this chapter (relating to Hazardous Air Pollutants:_ Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §I12(<_) 40 CFR Part 63)) . (b) In addition to the requirements in subsection (a) of this section if the commission determines it necessary toavoi d a condition of air pollution or to ensure compltance with otherwise applicable federal or state air quality control requirements, then:

the applicant may be required to submit additional information regarding the emissions from the facili ty and thetr impacts on the surrounding area; and

the commission shall impose as a condition for renewal only those requirements the executive director determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. (c2 A compliance history reviewmust be conducted in accordance with §§ 116. 120-116. 126 of this title (relating to Compltance History) The renewal application must demonstrate that the facility is or has been in substantial compliance with the provisions of the TCAA and the terms of the existing permit. Failure to demonstrate substantial compliance shall result in the renewal not being granted. If it is found that violations in the compliance history constitute a recurring pattern of egreaiou-, conduct which demonstrates a consistent disregard for the regulatory process including failure to make a timely and substantial attempt to correct the violations, the renew_al shall be denied If a contested case hearing has not been called, the executive director must notify the applicant of the intent to recommend denial and state the basis of the findings. The applicant will be given an opportunity to respond to the

_ not ice. If the findings reflect a . a pattern of disregard for applicable regulations which do not warrant denial, additional conditions may be placed in the permit .

An application for renewal must be submitted wi thin 90 days prior to expiration of the permit or the permit will expire. The executive director may extend the time period for submitting an application. Any permit issued:

_(1) before December 1 1991 is subject for review 15 years after the date of issuance;

on or after December 1 1991 is sublect for review every ten years after the date of issuance;

at nonfederal sources on or after December 1, 1991, may, for cause contain a provision requiring renewal between five and ten years. §116.312

. Public Notification and Comment Procedures. (_a) The executive director shall mail a written notice to the permit holder within 30 days after an application is complete. The notice will confirmreceipt of the application and shall require the applicant to provide public notice of the application for permit renewal in accordance with Subchapter B of this chapter (relating-Lo NewSource ReviewPermits .

The sign heading required under §116 .133(a)(2) of this title (relatinQ to Sign Posting Requirements) shall read "PROPOSED RENEWAL OF AIR QUALITY PERMTT." § 116.313- Renewal Application Fees. (a) The fee for renewal is based on the total annual allowable emissions fromthe permitted facility to be renewed, according to the following table. Fi gure: 30 TAC §116.31_3(1)

Fees are due and payable at the time the renewal application is filed No fee will be accepted before the permit holder has been notified by the commission that the permit is scheduled for review

. All permit review fees shall be remitted by check or money order payable to the Texas Natural Resource Conservation Commission (TNRCC) and mailed to the TNRCC PO . Box 13088, MC 214 Austin Texas 78711-3088 Required fees must be received before the agency will consider an application to be complete. § 116 .314. ReviewSchedule . Renewal of permit The executive director shall renewa permit and notify the permit holder in writing if it is determined that the facility_meets the requirements of this subchapter.

Denial of renewal . Prior to denial, the executive director shall provide notice to the permit holder with a report whi ch describes the basis for denial .

_(l) If denial is based on failure to meet the requirements of §116311(a) or (b) of this title (relating to Permit Renewal Application) the report shall establish a schedule for compliance with the renewal requirements.

(_A) The report shall beforwarded to the permit holder no later than 180 days after the commission receives a completed appl ication. The permit shall be renewed if the requirements are met according to the schedule specified in the report. The executive director shall notify the permit holder mwriting of the permit renewal .

(2) If denial is based on failure to maintain substantial compliance with the TCAA or the terms of the existing permit under § 116 .311(c) of this title, the renewal dental shall be final . The executive director shall notify the permit holder in writing of the denial . Contested case hearing After failure to satisfy the com mission requirements for corrective action by the deadline specified in the executive director's report, the appl icant shall sho w cause in a contested case proceeding why the permit shoul d-not expire The proceeding will be conducted under the APA and Chapters 1 55 and 80 of this title (relating to P urpose of R

ules, General Provisions-, Request for Contested Case H earings; Public Comment-, and C

ontested Case Hearings) . U Effective date of existing permit. An existing permit shall remain effective:

until it is renewed; 

### 23 TexReg 2976 March 20, 1998 Texas Register_(2) until the deadline specified in the executive director's

report to the permit holder;

_(3) during the course of a contested case hearing if the hearing extends beyond the expiration date; or

(4) until a date specified in any commission order entered following a contested case hearing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803297 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation CommissionProposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Subchapter F Standard Permits 30 TAC§§116.610,116 .611, 116.614, 116.615, 116.617, 116.620, 116.621 STATUTORYAUTHORITYThe amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implementTexas Health and Safety Code, §382.017, concerning Rules, §382 .051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116 .610 . Applicability. (a) Under the TCAA [Pursuant to the Texas Clean AtF Act (T-rcAA)], §382.051, a project which meets the requirements for a standard permit listed in this subchapter is hereby entitled to the standard permit ; provided the following conditions listed in this section are met. For the purposes of this subchapter, project means the construction or modification of a facility or a group of facilities submitted under the same registration claim . (1)-(2) (No change.) (3) the proposed project must comply with the applicable provisions of the FCAA [Federal Clean Aif Aet 'n~^"A) ], §111 (regarding [Federal) NewSource Performance Standards) as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA [and §1-1-2 (regarding 14a&-ffdees Aif Pollutants) ] ;

the proposed project must comply with the applicable provisions of FCAA, §112 (regarding Hazardous Air Pollutants) as listed under 40 CFR 61, promulgated by the EPA ; (5) the proposed project must comply with the applicable maximum achievable control technology standards as listed under Chapter 113, Subchapter Cof this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA § 112, 40 CFR 63)) . [(4)] the owner or operator of the facility shall register the proposed project in accordance with § 116.611 of this title (relating to Registration Requirements) . (b)-(c) (No change.) Any project which constitutes a newor reconstructed facility and is a major source of hazardous air pollutants, shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g) 40 CFR Part 63)) . Sources subject to Subchapter C of this chapter may use a standard permit under this subchapter only if the terms and conditions of the specific standard permit meet the requirements of Subchapter C of this chapter. §116 .611 . Registration Requirements. (a) Registration for a standard permit shall be sent by certified mail, return receipt requested, or hand delivered to the commission's [Texas laiatuFal Reseuree Ceaser-vatiee r^~~~°°~^^ (eommission) ] Office of Air Quality, the appropriate commission regional office [Reg~tepal9 ¬¬~e], and any local air pollution program with jurisdiction, before a standard permit can be claimed. The registration must be submitted on a FormPI-1S and must document compliance with the requirements of this section, including, but not limited to:

(1)-(6) (No change.) (b)-(c) (No change.) §116 .614 . Standard Permit Fees. Any person who claims a standard permit shall remit, at the time of registration, a flat fee of $450 for each standard permit claimed. All standard permit fees will be remitted in the formof a check or money order made payable to the Texas Natural Resource Conservation Commission (TNRCC) and delivered with the permit registration to the TNRCC, PO

. Box 13088, MC 214, Austin, Texas 78711-3088 [R9 : Beat -13087, Austin, Texas 78733] . No fees will be refunded. §116 .615 . General Cond' The following general conditioro,, are applicable to holders of standard permits, but will not necessarily be specifically stated within the standard permit document .

(1) Protection of public health and welfare. The emissions fromthe facility must comply with all applicable rules and regulations of the commission [Texas Natural Resouree Censen,a tiee Eemmissiert (eemmissietr)] adopted under the Texas Health and Safety Code, Chapter 382, andwith intent of the TCAA [Texas Clean tkif ttet /T~ ], including protection of health and property of the public. (2) (No change.)

(3) Standard permit in lieu of permit amendment . All changes authorized by standard permit to a facility previously permitted under [purseant to] §116.110 of this title (relating to Applicability) shall be administratively incorporated into that facility's permit at such time as the permit is amended or renewed.

(4)-(7) (No change.) (8) Recordkeeping. A copy of the standard permit along with information and data sufficient to demonstrate applicability of and compliance with the standard permit shall be maintained in a file at the plant site and made available at the request of representatives of the executive director, the EPA [United States Environmental preteetieer Ageaey], or any air pollution control program having 

### PROPOSED RULES March 20, 1998 23 TexReg 2977jurisdiction. For facilities that normally operate unattended, this

information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit registration. This information must include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in the conditions of the standard permit . Information and data sufficient to demonstrate applicability of and compliance with the standard permit must be retained for at least two years following the date that the information or data is obtained . The copy of the standard permit must be maintained as a permanent record.

(9) Maintenance of emission control . The facilities covered by the standard permit may 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 §101 .6 and §101 .7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and M aintenance, Startup and Shutdown Reporting Recordkeepmg, and Operational a ;4 Requirements [Neti ¬ tF-atierr RequifeffierAs ¬ eF Mafef Upset Neti ¬ fsat+en Requifernents fer M aintenance]) . (l0) Compliance with rules. Registration of a standard permit by a standard permit applicant constitutes an acknowledgment and agreement that the holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the claiming of the standard permit . If more than one state or federal rule or -regulation or permit condition are applicable, the most stringent limit or condition _shall govern [ge;effs] . Acceptance includes consent to the entrance of commission employees and designated representatives of any air pollution control programhaving jurisdiction into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the standard permit. §116 .617 . Standard Permitsfor Pollution Control Projects. This standard permit applies to the instaaation of emissions control equipment or implementation of control ._..:i.niques as required by any governmental standard, or undertaken voluntarily, or to replace existing emission control equipment or control techniques. This standard permit also authorizes the substitution of compounds used in manufacturing processes for the purpose of complying with governmental standards or to reduce emission effects.

(1)-(4) (No change.) (5) Installation of the .control equipment or implementation of the control technique must not result in an increase in the facility's production capacity unless the capacity increase occurs solely as a result of the installation of control equipment or the implementation of control techniques on existing units. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate resulting fromthe installation of control equipment or the implementation of a control technique.

(A) The owner or operator shall obtain or qualify for any necessary authorization under [pufsuar+t to] § 116.110 of this title (relating to Applicability) or §116 .116 of this title (relating to Changes to Facilities) prior to utilizing any production capacity increase froma pollution control project required by any governmental standard that: (i)-(ii) (No change.)

(B) Any production capacity increase resulting from the voluntary installation of controls or the implementation of control techniques may not be utilized until the owner or operator obtains or qualifies for any necessary authorization under [pursuaot to] § 116.110 or § 116.116 of this title.

(6)-(7) (No change.) (8) If the project, without consideration of any other increases or decreases not related to the project, will result in a significant net increase in emissions of any criteria pollutant, a person claiming this standard permit shall submit, with the registration, information sufficient to demonstrate that the increase will meet the conditions of subparagraph (A) of this paragraph.

(A)-(B) (No change.) (C) Netting is not required when determining whether this demonstration must be made for the proposed project . The increases and decreases in emissions resulting fromthe project must be included in any future netting calculation if they are determined to be otherwise creditable under PSD and nonattainment newsource review provisions of the FCAA [Federal Clean Air Aet fF~]~ Parts C and D and regulations promulgated thereunder.

(9) For purposes of compliance with the PSD and nonattainment newsource reviewprovisions of the FCAA, Parts C and D and regulations promulgated thereunder, any increase that is less than significant, or satisfies the requirements of paragraph (8) of this section does not constitute a physical change or a change in the method of operation. For purposes of compliance with the Standards of Performance for NewStationary Sources regulations promulgated by the EPA [United States EAViFORIFF10nt-al =D"-"A'°" ~''°n Agemi`] at 40 CFR §60.14 (effective December 16, 1975), an increase that satisfies the requirements of paragraph (8) of this section also satisfies the requirements of 40 CFR §60 .14(e)(5) . §116 .620 . Installation and/or Modification of Oil and Gas Facilities. (a) Emission specifications.

(t)-(3) (No change.) (4) Newor modified internal combustion reciprocating engines or gas turbines permitted under this standard permit shall satisfy all of the requirements of § 106. 512 of this title (relating to Stationary Engines and Turbines (Previously SE 6)) [Standafd E*effipt-ien NufnbeF g], except that registration using the FormPI-7 or PI-8 shall not be required. Emissions fromengines or turbines shall be limited to the amounts found in §106.4(a)(1) of this title (relating to Requirements for Exemption fromPermitting) [~s="T`~-='==+ni 'c`J e4 t13+&tide `'° toSt;andmd F*effqt=o = ~rst)] . (5)-(12) (No change.) (13) Appropriate documentation shall be submitted to demonstrate that compliance with the Prevention of Significant Deterioration (PSD) and nonattainment newsource reviewprovisions of the FCAA (Federal Clean A-ifAeE], Parts C and D, and regulations promulgated thereunder, and with Subchapter C of this chapter (rel ating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA §112(g) 40 CFRPart 63)) are being met . The oil and gas facility shall be required to meet the requirements of Subchapter B of this chapter (relating to NewSource ReviewPermits) instead of this subchapter if a PSDor nonattainment permit or a reviewunder Subchapter Cof this chapter is required.

(14) Documentation shall be submitted to demonstrate compliance with applicable NewSource Performance Standards



### 23 TexReg 2978 March 20, 1998 Texas Register(NSPS, 40 CFR Part 60) [and National Emission Standards

1 htzardet}s Air Pollution ~"T~'~° 48 EFR 6-1)] .

(_I5) Documentation shall be submitted to demonstrate compliance « ith applicable National Emission Standards for Hazardous Air Pollution (NESHAP, 40 CFR Part 61) .

(16) Documentation shall be submitted to demonstrate compliance with applicable maximumachievable control technology standards listed in Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA § 112, 40 CFR Part 63)) .

(_17) [{-~] Newand increased emissions shall not cause or contribute to a violation of any National Ambient Air Quality Standard or regulation property line standards as specified in Chapters I 11, 112, and 113 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter; Control of Air Pollution from Sulfur Compounds; and Control of Air Pollution fromToxic Materials) . Engineering judgment and/or computerized air dispersion modeling may be used in this demonstration. To show compliance with § 1 16.610(a)(1) of this title (relating to Applicability) for H ,S emissions fromprocess vents, ten milligrams per cubic meter shall be used as the "L" value instead of the value represented by § 1 16 .610(a)(1) of this title.

(18) [(W] Fuel for all combustion units and flare pilots shall be sweet natural gas or liquid petroleumgas, fuel gas containing no more than ten grains of total sulfur per 100 dry standard cubic feet dsc [Esed¬

)], or field gas. If field gas contains more than 1 .5 grains of H , S or 30 grains total sulfur compounds per 100 _dscf [sed¬

], the operator shall maintain records, including at least quarterly measurements of fuel H , S and total sulfur content, which demonstrate that the annual SO, emissions fromthe facility do not exceed the limitations listed in the standard permit registration. If a flare is the only combustion unit on a property, the operator shall not be required to maintain such records on flare pilot gas. (b) Control requirements. (1) Floating roofs or equivalent controls shall be required on all newor modified storage tanks, other than pressurized tanks which meet §106

.476 of this title (relating to Pressurized-Tanks or Tanks Vented to Control (Previously SE 83)) [Stattdafd £xemptien 8J], unless the tank is less than 25,000 gallons in nominal size or the vapor pressure of the compound to be stored in the tank is less than 0.5 pounds per square inch absolute (psia) at maximumshort-term storage temperature.

(A)-(E) (No change.) (2) (No change.) (c) Inspection requirements. (1) Owners or operators who are subject to subsection (a)(7) or (8) of this section . shall comply with the following requirements.(A) No component shall be allowed to have a VOC leak for more than 15 days after the leak is detected to exceed a VOC concentration greater than 10,000 parts per million by volume (ppmv) above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound for all components. The VOC fugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0.5 psia at 100 degrees Fahrenheit are exempt fromthis requirement. If VOCfugitive emission components are in service where the operating pressure is at least 0.725 pounds per square inch (psi) (five kilopascals (Kpa)) belowambient pressure, then these components are also exempt from this requirement as long as the equipment is identified in a list that is made available upon request by the agency representatives, the _EPA [L4+tited St ates °^~~~~~ -.-.~ ~,~^^" °^'~~' °-^"

~^''^^o** Agency (EPA4 ], or any other air pollution agency havingjurisdiction. All piping and valves two inches nominal size and smaller, unless subject to federal NSPS requiring a fugitive VOC emissions leak detection and repair programor Chapter 115 of this title (relating to Control of Air Pollution fromVolatile Organic Compounds), are also exempt fromthis requirement .

(B)-(I) (No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality. New Source Review Permitting [Petmifs] Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sumof valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that has been developed to justify the following modifications in the monitoring schedule.

(i)-(ii) (No change.) (2) Owners or operators who are subject to subsection (a)(9) or (10) of this section shall comply with the following requirements.(A)-(I) (No change.)

(J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality, New Source Review Permitting [Permits] Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leakina shall be determined by dividing the sumof valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that have been developed to justify the following modifications ~~ :onitoring schedule.

(i)-(ii) (No change.) (K) (No change.) (3) (No change.) (d) Approved test methods. (1)-(2) (No change.) (3) Proper operation of any condenser used as a VOC emissions control device to comply with subsection (a)(5) of this section shall be tested to demonstrate compliance with the minimum control efficiency. Sampling shall occur within 60 days after startup of newor modified facilities. The permittee shall contact the Engineering Services Section, Office of Compliance and Enforcement [AiF Quality Enro*ee:*en n Division] 45 days prior to sampling for approval of sampling protocol . The appropriate regional office in the region where the source is located shall also be contacted 45 days prior to sampling to provide them the opportunity to view the sampling. Neither the regional office nor the Engineering Services Section, Office of Compliance and Enforcement [Air Quality ^~*fonernent Division ] personnel are required to viewthe testing. Sampling reports which comply with the provisions of the "TNRCC Sampling Procedures Manual," Chapter 14 ("Contents of Sampling Reports," dated January 1983 and revised July 1985), shall be distributed to the appropriate regional office, any local programs, 

### PROPOSED RULES March 20, 1998 23 TexReg 2979and the Engineering Services Section, Office of Compliance and

Enforcement [Ai-r Qual'tty F^ ~aree*^nent Division] . (e) Monitoring and recordkeeping requirements. (1) If the operator elects to install and maintain ambient H , S property line monitors to comply with subsection (a)(ll) of this section, the monitors shall be approved by the Engineering Services Section, Office of Compliance and Enforcement (A4f Quality E fercement B'ruisiea] office in Austin, and shall be capable of detecting and alarming at H , S concentrations of ten ppmv. Operations personnel shall performan initial on-site inspection of the facility within 24 hours of initial alarmand take corrective actions as listed in subsection (c)(3)(A)-(C) of this section within eight hours of detection of a leak.

(2) The results of the VOC leak detection and repair requirements shall be made available to the executive director [, 136i of her designated representa4v_-] or any air pollution control agency havingjurisdiction upon request . Records, for all components, shall include: (A)-(E) (No change.)

(3)-(8) (No change.) §116 .621 . Municipal Solid Waste Landfills. A person may claima standard permit for the construction or modification to a municipal solid waste landfill (MSWLF) or municipal solid waste facility (MSW facility) as defined in §IOI .I of this title (relating to Definitions), including. but not lirfiited to. Type I, Type 1-AE, Type II, Type III, Type IV, Type IV-AE, Type VI, and Type IX sites as defined in §330.41 of this title (relating to Types of Municipal Solid Waste Sites) .

(1) (No change.) (2) Separate permit authorization under Subchapter B of this chapter (relating to NewSource Review Permits) must be obtained for the following:

(A)-(E) (No change.) (F) any project which constitutes a newmajor source, or major modification under the new source review requirements of the FCAA [FedeFal Clean Aif Aet], Part C (Prevention of Significant Deterioration review)_ [of] Part D (nonattainment review) and regulations promulgated thereunder, or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §11 2(g) 40 CFR Part 63)) shall be subject to the requirements of §116.110 of this title (relating to Applicability) rather than this subchapter.

(3) (No change.) (4) The permit holder shall comply with the air emissions standards as specified in 40 CFR Part 60, Subpart WWW, with the following additions and changes.

(A) (No change.) (B) The GCCS shall be designed to control nonmethane organic compounds (NMOC) gas emissions in one or more of the following ways by routing the total collected gas to:

(i) an open flare with a minimumheight of 30 feet and which satisfies all of the requirements of Chapter 106, Subchapter A of this title (relating to General Requirements) [§1 1 6.21 1 o¬ this eitle (relating to Standard £*erttgtiett U~} ; &Eattdex- EqtettTtiert Numbe W, ] and § 106.492 of this title (relating to Flares (Previously SE 80)), except that registration using FormPI-7 or PI-8 [P-14 OF P4- 9] shall not be required;

(ii)-(iii) (No change.) (iv) gas or liquid fuel-fired stationary internal combustion reciprocating engines or gas turbines that satisfy all of the requirements of Chapter 106 Subchapter A of this title and §106.51= of this title (relating to Stationary Engines and Turbines (Previously SE 6)) [ c ~s .'~'-1 ef this t'ttle: Standard Bxewptiet+ Ntt+ttbef g], except that registration using Form PI-7 or PI-8 shall not be required; or

(v) boilers, heaters, or other combustion units, but not including stationary internal combustion engines or turbines, that satisfy all of the requirements of Chapter 106, Subchapter A of this title and §106

. 183 of this title (relating to Boilers, Heaters, or Other Combustion Devices (Previouslv SE 7)) [ § "-.16.-2:T of t#is tttle; Stand-ard ExeffTEiert P3trrrtbef -7] .

(C) The active GCCS may be capped or removed only if, in addition to the requirements listed in 40 CFR, §60 .752(b)(2)(v), the MSWLF is permanently closed under [pursuant to] §§330.250- 330 .256 of this title (relating to Closure and Post-closure). (5) (No change.) (6) High volume air sampling for net ground level concentrations of total particulate matter shall be performed upon request of the executive director or a designated representative. Each test shall consist of at least one upwind and one downwind sample taken simultaneously. The tests shall be performed during normal operations. A monitoring plan for high volume sampling shall be developed in accordance with the Office of Air Quality Management Plan, Appendix I (_EPA (United States E,-. ireftmef" D,-,Ote " ~ io*^, Agency (ERA) ] Requirements for Quality Assurance Project Plans, dated February 1995) and the "TNRCC Sampling Procedures Manual," Chapter 11 ([ "DTarticulate Matte,"] dated January 1983 and revised July 1985), and shall require approval by the executive director or a designated representative prior to sampling. The executive director or a designated representative shall be afforded the opportunity to observe all such sampling equipment, operations, and records upon request.

(7) GCCS components (compressor seals, pipeline valves, pressure relief valves in gaseous service, flanges, and pump seals) at an MSWLF or MSW facility, where the total of all estimated uncontrolled fugitive emissions fromall components is greater than ten tons per year, shall be inspected and maintained under [pursttartt to] the requirements of §116 .620(c)(1)(A)-(J) of this title (relating to Installation and/or Modification of Oil and Gas Facilities), with the following changes and additions.

(A)-(E) (No change.) (8) The owner or operator of each MSWLF unit shall maintain complete and up-to-date records sufficient to readily determine continuous compliance with the requirements of this section for the previous five years of operation. All the records shall be maintained in an operating record in accordance with §330 .113(b)(11) of this title (relating to Recordkeeping Requirements) . The records shall be available for reviewupon request by representatives of the commission or any local air pollution agency havingjurisdiction. The following recordkeeping requirements shall apply, in addition to those specified in 40 CFR 60, Subpart WWW . (A) Permit holders who are subject to the exemptions of Chapter 106 of this title (relating to Exemptions fromPermitting), _as [a standard exemption] specified in paragraph (4) of this section shall maintain any records specified in the exemption. 

### 23 TexReg 2980 March 20, 1998 Texas Register(B) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803298 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### Subchapter G

. Flexible Permits 30TAC§§116

.710, 116.711, 116.714, 116.715, 116.721, 116 .730, 116.740, 116.750 STATUTORY AUTHORITY . The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implementTexas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116 .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 reviewpermit under §116.110 of this title (relating to Applicability), or in lieu of amending an existing permit under §116.116 of this title (relating to Amendments and Alterations) . A person may obtain a flexible permit under [pursuaet to] §116.711 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)-(4) (No change.) {(b) 9per-atierts ^ ~' :~:~ Aity pefset} whe ebtains a fle.xi~ perrrt'rt under this subehapteF shaIl comply ivith §-1-1-6:-1-1-A(b) ef this tiHe.4 [(e)] Change in ownership. The newowner 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 newowner and existing permit holder must obtain a permit alteration allocating the emission caps or individual emission limitation prior tothe transfer of the permit by the commission [Texas Natural Resetrree trertsefyatieff Commission !T"~ ] . 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 commission [T-NRGE] . (c) [(d)] Submittal under seal of Texas licensed [~°,a~a] professional engineer. All applications for a flexible permit or flexible permit amendment shall comply with § 116.110 (e) [(d)] of this title. (d) [(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 au provided by subsection (b) [(E)] of this section. §116 . 711. Flexible Permit Application. Any application for a newflexible permit or flexible permit amendment must include a completed FormPI-1 General Application. The FormPI-1 must be signed by an authorized representative of the applicant. The 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 commission [Texas Natufal Resetifee ~i ett Eerxrxissien !TN'] 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 under [pufsthtet te] § 116.716 of this title (relating to Emission Caps and Individual Emission Limitations), will comply with all rules and regulations of the commission [T-bIRC-C] and with the intent of the TCAA [Texas Clean Atf Act ~T~], 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 commission [TNRCE] shall consider any possible adverse shorttermor long-termside effects that an air contaminant or nuisance odor fromthe facility, group of facilities, or account may have on the individuals attending these school facilities.

(2) Measurement of emissions. The proposed facility, aroup of facilities, or account will have provisions for measuring the emission of air contaminants as determined by the executive director [ Executive 13ireeter] . This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling- Pr--° "'a res Manual" ["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 newfacilities and physical changes to existing facilities which concern a maximum available control technology (MACT) determination for constructed or reconstructed sources under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g) 40 CFR Part 63)) , 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 EPA under [United States Environmental Pr-eteetien ,4gettey (E4~A) pursuant te] authority granted under the FCAA [Federal Clean Aif Ae4 '°~], § 111, as amended. 

### PROPOSED RULES March 20, 1998 23 TexReg 2981(5) National Emission Standards for Hazardous Air Pollutants (NESHAPS) [and Maximum Aehievable C-sntrel T°^~T (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 MAC =F standard], promulgated by EPA under [ ptirsear+t to] authority granted under the FCAA, § 112, as amended.

NESHAPS for source categories. The emissions from each affected facility shall meet at least the requi rements of any applicable MACT standard as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR 63)) .

[(b)] 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. (8) [(-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 r8viewin Subchapter B of this chapter (relating to New Source ReviewPermits) . [($)] 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.

[(4)] Air dispersion modeling or ambient monitoring. Computerized air dispersion modeling and/or ambient monitoring may be required by the commission's NewSource--- Permitting Division [TNRCE Penn'rts D'"~r-am ] to determine tr~7, air quality impacts fromthe facility, group of facilities, or account.

11) Federal standards of review for constructed or reconstructed maior sources of hazardous air pollutants. If the proposed new

or reconstructed facility is a major source for hazardous air pollutants it shall comply with all applicable regutrements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Maj or Sources (FCAA § 112(g) 40 CFR Part 63)) .

[(19)] Application content. In addition to any other requirements of this chapter, the applicant shall :

(A) identify each ai'r contaminant for which an emission cap is desired; permit; (B) identify eachfacility to be included in the flexible

(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;

(D) for each emission cap, identify all associated EPNs and provide emission rate calculations based on the expected maximumcapacity and the proposed control technology; (E) for each individual emission limitation, identify the EPN and provide emission rate calculations based on the expected maximumcapacity and the proposed control technology.

( l ["] 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 maximumproduction capacity. § 116. 714

. Application ReviewSchedule. The flexible permit application will be reviewed by the commission [Texas Natural Pesou*R C

- anser. vatien C-**

*iT,ioa] in accordance with § 116.114 of this title (relating to Application ReviewSchedule) . §116 .71J . 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 [ ExeeQ<iTe Direeter] 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 reviewunder §1L6.150 and §116 .151 and §§116.160-116.163 of ^° ef ac ''^~l'apte=r Hof tl}is ehap- this title [ the a

« e.. :s ..,. ..., .oa headings ~,~Qr~ tef] (relating to Nonattainment Review or Prevention of Significant Deterioration Review) or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or.Reconstructed Major Sources (FCAA §112(Q) 40 CFR Part 63)) , the permit may include a special condition which requires the permittee to obtain written approval from the executive director [Fxerutive Oirestee] before constructing a facility under a standard permit or an exemption under Chapter 106 of this title (relating to Exemptions fromPermitting) [exemptiert of standard pemitl]~ (b) (No change.) (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 [ Executive Oireete ] 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 § 116.721 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 commission [Texas hiattral °eseufee GOnS RF-9ti0n COffiffliSSio (TNRC-G) ] not later than 15 working days after occurrence of the event. (3) Start-up notification. The appropriate reQional offi_ce of the commission [Ai~ Pr-og-Fam Regional 9 ¬fee e¬ the ~~ ] and any local programhaving 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 commission [ T^'~ ] 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 commission's Engineering Services Section Office of Compliance 

### 23 TexReg 2982 March 20, 1998 Texas Registerand Enforcement [ Setifee and Mobile Meniter+n; Section af the

T\7 ~~ 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 [Executive Director] and coordinated with the appropriate regional office of the commission [Ai{ 1?reg-R+m Regional Office of the TNRCC] . 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 [ ExezeatT:e Btreetef] prior to their use in fulfilling any requirements of the permit .

) 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 fromthe commission [TAIRCE] or any air pollution control programhaving 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)-(8) (No change .)

(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 §101 .6 and §101 .7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance Startup and Shutdown Reporting, Recordkeeping and Operational Requirements [Notification Requirements fof Major U" and . h1otificatien Requirement, ¬ 6F r~^ ^~~,tenanee]) . (10) Compliance with rules. Acceptance of a flexible permit by a permit applicant constitutes an acknowledgment and agreement that the holder will comply with all Rules, Regulations, and Orders of the commission [Commission] issued in conformity with the TCAA [Texas Clean Air Aa] 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 [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) (No change.) §116.721. Amendments and Alterations. (a) Flexible permit amendments. All representations with reprd 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 [Executive Bi-reeteF] to amend the flexible permit in that regard and such amendment is approved by the executive director [ I=~ °~trve BireetoFJ or commission [ ~^~^~,~~~°°~^^~~°°~^^ ] . Applications to amend a flexible permit shall be submitted with a completed FormPI- I and are subject tothe requirements of § 116 .711 of this title (relating to Flexible Permit Application) . (b) Flexible permit alterations. (1) (No change.) (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 [ Executive Oireeter] . The executive director [Executive n Bifeetef] shall be notified in writing of all other flexible permit alterations within ten [-1-0] 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 § 116.711 of this title, including the protection of public health and welfare. The appropriate commission regional office [Texas Natural ResE)UFCe Conservation Commission Regional O ¬ ftFe ] and any local air pollution program having jurisdiction shall be provided copies of all flexible permit alteration documents.

(3) (No change.) (c) (No change.) (d) Exemption under Chapter 106 of this title (relati nz " Exemptions fromPermitting) [Standard exeFrptiea] in lieu of 1"° 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 Chapter 106 of this _title [Subehaptef E s¬ *'ts chaPfe~ ~-° te Peffnit Exemptions)] unless prohibited by permit provision as provided in §116.715 of this title (relating to General and Special Conditions) . All such exempted changes to a permitted facility shall be incorporated intothat facility's permit at such time as the permit is amended or renewed.

(2) Emission increases authorized by Chapter 106 of this title [standard exemption] at an existing facility covered by a flexible permit shall not cause an exceedance of the emissions cap or individual emission limitation. §116 .730 . Compliance History. As part of a flexible permit review, or the reviewof an amendment of a flexible permit, or renewal of an existing flexible permit, the provisions found in §§116 .120-116.126 of this title (relating to Compliance History) [the endesignated head regaMing Compliance Plistery irt SubehepteF B ef this ehapteF] shall be applicable to the facility, group of facilities, or account being permitted, amended, or renewed. ys116 .740 . Public Notice and Comment. 

### PROPOSED RULES Mareh 20, 1998 23 TexReg 2983(_a) Any person who applies for a flexible permit or an

amendment to a flexible permit shall comply with the provisions in §§116.130-116.134, 116.136, 116.137 of this title (relating to Public Notification and Comment Procedures [the u ~ae5ignated head reg-afdt3ta PUblie T`TAi fiaati& n a*d COMFTIeRt D

.o<^edrires in &behapter a of this Chaptef] . (b) Any person who applies for an amendment to a flexible permit that concerns a maximum achievable control technology determination for constructed or reconstructed sources under Subchapter C of this chapter (relating to Hazardous Air Pollutants : Regulations Governing Constructed or Reconstructed Major Sources (FCAA § 112(g) 40 CFR Part 63)) shall comply w i th the provisions in §§116 . 130-116.134, 116.136, and 116.137 of this title. §I16 .750. Flexible Permit Fee. (a) (No change.) (b .) Fee amounts. The fee to be remitted with a flexible permit application shall be based on the total annual allowable emissions fromthe permitted facility, group of facilities, or account for which the flexible permit is being sought. The fee shall be $25 per ton with the minimumfee being $450 and the maximumfee $75,000. For flexible permit amendments, the fee shall be calculated based on $25 per ton for the incremental emission increase with the minimum fee being $450 and the maximumfee 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 [ lTT~T~] and delivered with the application for flexible permit or flexible permit amendment to the commission's New Source Review Permitting Division [TNRCC 9f¬ tEe ef Aif Qth4ity New Source Reviewgregfarrr] . 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 an exemption under Chapter 106 of this title (relating to Exemptions fromPermitt [a stat3dard e*errtpi+ee] 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. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803299 Kevin McCalIa Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call : (512) 239-1966 

### TITLE 34. PUBLIC FINANCE Part I . Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter CC . Waste Tire Recycling Fee 34 TAC §3.721 Editor's note: The text of the .following section proposed,for repeal will not be published. The section rnav be examined in the offices of the Comptroller of Public Accounts or in the Texas Register office, Room245, James Earl Rudder Building, 1019 Bra;,os Street, Austin.) The Comptroller of Public Accounts proposes the repeal of §3.721, concerning collection and reporting requirements. This rule is being repealed because the Waste Tire Recycling Programexpires on December 31, 1997, in accordance with Health and Safety Code, §361 .497. Mike Reissig, chief revenue estimator, has determined that the repeal of this rule would have no fiscal impact on the state or units of local government. Mr. Reissig also has determined that there will be no cost or benefit to the public fromthe repeal of this rule. This repeal is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. Comments on the repeal may be submitted to Karey W . Barton, Manager, Tax Policy Division, PO . Box 13528, Austin, Texas 78711 . This repeal is proposed under the Tax Code, §111 .002 and §111 .0022, which provide the comptroller with the authority to adopt rules for the administration and enforcement of the Tax Code and programs orfunctions assigned to the comptroller by law . The repeal implements Health and Safety Code, §361 .497. §j .721 . Collection and Reporting Requirements. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretaryof State on March 5, 1998. TR :)-"-,:3366 Martin Cherry Chief, General Law Comptroller of Public Accounts Earliest possible date of adoption: April 19, 1998 For further information, please call : (512) 463-3699 

### Chapter 9. Property Tax Administration Subchapter H

. Tax Records 34 TAC §9

.3041 Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Comptroller of Public Accounts or in the Texas Register office, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Comptroller of Public Accounts proposes the repeal of §9.3041, concerning tax deferral affidavit. The rule is being repealed becausethe Tax Code, §5.07(a) does not require that the comptroller adopt this formby rule. Mike Reissig, chief revenue estimator, has determined that repeal of the rule would have no fiscal impact on the state or units of local government. 

### 23 TexReg2984 March 20, 1998 Texas RegisterBarry RMcBee, Chairman

RB . "Ralph" Marquez, Commissioner John M . Baker, Commissioner Dan Pearson, FrecutiveDirector



## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

Protecting Texas by Reducing andPreventing Pollution



### NOTICE OF PUBLIC HEARING BY THE TEXAS NATURAL RESOURCE CONSERVATIONCOMMISSION

ON PROPOSEDREVISIONSTOCHAPTER 116 AND THESTATE IMPLEMENTATION PLAN Notice is hereby given that under the requirements of Texas Health and Safety Code, §382.017; Texas Government Code, Subchapter B, Chapter 2001 ; and 40 Code of Federal Regulations, §51 .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 commission proposes amendments to Subchapters A-D, F, and G, concerning Control of Air Pollution by Permits for NewConstruction or Modification. The proposed amendments would implement the requirements of the Federal Clean Air Act, §112(g), 40 Code of Federal Regulations Part 63, concerning Hazardous Air Pollutants, and make general corrections and clarifications to Chapter 116. 

### Apublic hearing on the proposal will be held April 16, 1998, at 10:00 a.m . in Room2210of TNRCC Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may presentoral statements when called upon in order ofregistration. Open discussion within the audience will not occur during the hearing; however, an agency staffmember will be available to discuss the proposal 30minutes prior to the hearing and answer questions before and after the hearing. Writtencomments regarding this proposal may be mailed to Lisa Martin, TNRCCOffice of Policy and Regulatory Development, MC205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239- 4808. All comments should reference Rule Log Number 98001-116-AI . Comments must be received by 5:00p.m ., April 20, 1998. Forfurther informationor questions concerning this proposal, please contact Mark Gibbs ofthe New Source ReviewPermitting Division, Office of Air Quality, (512) 239-1297. Persons with disabilities whohave special communication or other accommodation needs whoare planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. Issued in Austin, Texas, on March 4, 1998.

Kevin 1VIc aC a Director, Legal Division 

### Texas Natural Resource Conservation Commission

I -'

# ~ [ on

P .O . Box 13087 " Austin,Texas 78711-3087 " 512/239-1000 printed on recycled paper using soy-based inkTexas Natural Resource Conservation Commission Page 1

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes the repeal of §§116.10, 116.11, 116.13, 116.14,116.110-116.112, 116.114-116.118, 116.120-116.126, and 116.310-116.314 and new§§116.10, 116.11, 116.13-116.15,116.110-116.112,116.114-116.118, 116.120-116.126, 116.180-116.183, and 116.310-116.314, concerning Control of Air Pollution by Permits .for New

Construction or Modification. The commission also proposes amendments to §§116.130-116.134, 116.136, 116.137, 116.140, 116.141,116.143,116 .160,116 .161,116 .170,116.174,116.610,116.611,116.614,116.615, 116.617,116.620,116 .621,116 .710,116.711,116.714, 116.715,116.721,116.730,116.740,and 116.750, concerning Control of Air Pollution by Permits for New Construction or Modification. This action constitutes the commission's proposal to reviewthe rules contained in 30 TAC Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, in accordance with Article IX, Section 167, General Appropriations Act, 75th Legislature, 1997. EXPLANATIONOF PROPOSEDRULES. The commission proposes a new§116.15 and a new Subchapter C, §§116.180-116.183, for the purpose of implementing a programto meet the requirements of the 1990 Federal Clean Air Act (FCAA) amendments, § 112(g), as set forth in 40 Code of Federal Regulations (CFR) Part 63, §§63.40-63.44, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) .Texas Natural Resource Conservation Commission Page 2

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24198 Chapter 116 will implement the requirements of Title III ofthe FCAA, concerning Hazardous Air Pollutants, §112(g), Modifications, and 40 CFR Part 63. After June 29, 1998, the effective date of § 112(g)(2)(B), and the approval date of a Title V permit programin the state, all owners and operators of major sources subject to the § 112(g) programthat are constructed or reconstructed will be required to install maximum

achievable control technology (MACT) unless specifically exempted. Included in Title III of the 1990 FCAA amendments, § 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of a case-by-case MACT if a facility is constructed or reconstructed before the United States Environmental Protection Agency (EPA) issues a MACT standard or air toxics regulation for that particular category of sources or facilities. Changes have been made throughout the rules as the result of ongoing efforts by the commission for regulatory reform

. These changes are for purposes ofsimplification and clarification only and do not involve substantive changes in the requirements of this chapter . In general, these changes involve using shorter sentences, limiting each citation to one main concept, reordering requirements into a more logical sequence, and using more commonplace terminology. These changes will not be noted in the discussion in the following paragraphs concerning the proposed amendments to Chapter 116 in each subchapter . Although sections of Subchapter F, concerning Standard Permits, and Subchapter G, concerning Flexible Permits, were revised, these subchapters were not included in this extensive regulatory reformeffort. In addition, not all of Subchapter Bwas included. These subchapters and remaining sections will be reviewed at a later date for purposes of regulatory reform .Texas Natural Resource Conservation Commission Page 3

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 The subchapters of the rule related to nonattainment permitting and emergency orders have not been included in this rulemaking, since they are expected to be revised in subsequent rulemakings that are on a different schedule. Those subchapters will be reviewed for regulatory reformpurposes at that time. The following paragraphs describe the proposed amendments to Chapter 116 by subchapter. SUBCHAPTER A: DEFINITIONS. The commission proposes to amend Subchapter A by deleting those definitions that are identical or essentially the same as those in 30 TAC Chapter 101, concerning General Rules. As a result, in Chapter 116, the commission proposes to delete the definitions of "de minimis impact" and "emissions unit," to eliminate redundancy. In addition, the commission proposes to amend the definitions that reference exemptions from permitting by referring to 30 TAC Chapter 106, concerning Exemptions fromPermitting. These references were proposed in response to the recent revision to Chapter 116 that moved exemptions to Chapter 106. Correct references to the new exemption chapter, or specific sections within that chapter, have been made throughout the rules. The definition of "federally enforceable" is revised to include the requirements of 30 TAC Chapter 113, Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA § 112, 40 CFRPart 63) . These standards (commonly referred to as MACTS) areTexas Natural Resource Conservation Commission Page 4

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98 incorporated by reference into Chapter 113 and this reference is being included simply to direct the reader to the correct chapter of the commission's rules.

The definition of "lead smelting plant" plant is revised to correct an internal conflict. The definition states that processing may include "oxidizing into lead oxide." This conflicts with the last sentence of the definition, which says that a facility that remelts lead bars or ingots is not a lead smelting plant. The conflict arises because lead oxide is only made by melting lead ingots. Finally, the commission proposes new§116.15, concerning Section 112(g) Definitions. The definitions contained in § 116.15 will be used in conjunction with Subchapter C, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63) . The definitions in § 116.15 are essentially the same as those contained in 40 CFR 63, §63.41, concerning Definitions under Subpart B, Requirements for Control Technology (see 61 FR 68399) . SUBCHAPTER B

: NEW SOURCE REVIEW

PERMITS. The commission . proposes to amend §116.110, concerning Applicability, to reference standard permits that currently exist in Chapter 321, Subchapter K, concerning Concentrated Animal Feeding Operations; Chapter 332, concerning Composting; and Chapter 330, Subchapter N, concerning Landfill Mining. This amendment is proposed so that all the standard permits (for air emissions) currently available are referenced in Chapter 116.Texas Natural Resource Conservation Commission Page 5

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2124/98 The commission proposes to delete the operations certification requirements contained in the existing § 116.110(b) as a result of recommendations made by the TNRCC regional offices and the Office of Compliance and Enforcement . The commission believes that the operations certification requirement created unnecessary reporting, and paperwork and could be implemented more effectively through new source review(NSR) permits on a case-by-case basis. The commission proposes a new§ 116.110(c), concerning Exclusion, to make it clear that facilities subject to Subchapter C are not authorized to use an exemption under Chapter 106, or an authorization under §116.116(e), concerning changes to qualified facilities. Facilities subject to Subchapter C can use standard permits under Subchapter F of this chapter ifthe terms and conditions of the standard permit meet the criteria of Subchapter C. As currently written, none of the existing standard permits meet the criteria of Subchapter C (e.g., there is no requirement for public notice) . These changes are being made to ensure that applicants obtain the appropriate authorization under Subchapter C and are described in more detail in the section ofthe preamble addressing Subchapter C . The commission proposes a new§116.110(d), concerning change in ownership (formerly §116.110(c)) . This subsection is proposed to be revised to specify that newowners must submit information on the date ofthe change in ownership, the name of the newowner, a contact person for the new owner, and the address and phone number of the new owner.Texas Natural Resource Conservation Commission Page 6

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2124198 The commission proposes a new§ 116.110(e) to reflect the recent revisions to the Texas Engineering Practice Act (TEPA) which nowrefers to "licensed" engineers instead of "registered" engineers. The correct name of the Texas Board of Professional Engineers is included. The rule is revised to make clear that for projects with a capital cost above $2 million, the project must be submitted under the seal of a Texas licensed professional engineer . This change is being made to make this section consistent with longstanding agency practice concerning seals ofTexas professional engineers.

Section 116.111(6), concerning national emissions standards for hazardous air pollutants for source categories, is revised to reference the requirements of Chapter 113, Subchapter C. These standards (commonly referred to as MACTS) are incorporated by reference into Chapter 113 and this reference is being included simply to direct the reader to the correct chapter of the commission's rules. Changes are proposed to implement FCAA, §112(g) and 40CFR Part 63, Subpart B, requirements in §116.111(11), concerning general application, to ensure that applicants submit information in permit applications that demonstrates that the requirements of Subchapter C are met .

Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, §361 .102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply. The current § 116.112(b)(4) contained a typographical error that would have allowed the construction of any newcommercial hazardous wasteTexas Natural Resource Conservation Commission Page 7

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98 management facility or units of a facility to be located within 2,640 feet of any off-site receptor. The statutory provision prohibits the construction of a newcommercial hazardous waste management facility that would be within 2,640 feet of any off-site receptor. Section 116.115(c), concerning special conditions, is revised to include a reference to the new requirements in Subchapter C. This change will allowthe executive director to include a special condition in permits requiring permit holders to obtain prior written approval before constructing a source using a standard permit under Subchapter F or an exemption under Chapter 106, if the change would cause the facility to become subject to Subchapter C . Section 116.116(b)(3) is added to require permit amendments that concern a change subject to Subchapter C to comply with the provisions for public notice and comment under Subchapter B of this chapter. This change is being made because 40 CFR Part 63, §63.43(c)(2)(ii), requires case-by-case MACT determinations to be subject to public notice. Subsection (f) is being added to § 116.116 to authorize the use of discrete emission reduction credits (DERCs) to exceed permit allowables under certain conditions. The commission recently adopted a revised emissions banking and trading rule (22TexReg 12517) to allowa source to meet emission control requirements by purchasing and using credits generated by another source which has reduced its emissions belowthe level required by rule or permit. The revised banking rule allows for the use of DERCs to exceed permitted allowable emission levels by a certain amount once within any 24-monthTexas Natural Resource Conservation Commission Page 8

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2I24/98 period. In ozone nonattainment areas, this exceedance must be 25 tons or less of nitrogen oxides or five tons or less of volatile organic compounds. In other areas, the amount may not exceed the prevention of significant deterioration significance levels as provided in 40 CFR §52.21(b)(23) . In addition to other requirements, these uses must be approved by the executive director and may not cause or contribute to a condition of air pollution. The proposed language of § 116.116(f) would be the final step in allowing the use of credits to authorize certain exceedances of permit allowables.

Section 116.117, concerning Documentation and Notification of Changes to Qualified Facilities, is revised to require persons making changes to qualified facilities under §116.116(e) to maintain documentation that demonstrates that the project will comply with Subchapter C.

A minor amendment is proposed in § 116.118 that would add the word "or" in § 116.118(a)(1) . This is being done to correct a previous typographical error.

The commission proposes to amend §116.130(a), concerning applicability of public notification and comment procedures, by adding a reference to permit renewals. Applications for permit renewals are already required to go through public notice. This change merely includes a reference to renewals in this section. Subsection (a) is also revised to more closely track Texas Clean Air Act (TCAA), §382.056, concerning Notice of Intent to Obtain Permit or Permit Review ; Hearing, by including the phrase "or to be located." This revision does not change the current requirement to publish notice in a newspaper of general circulation in the municipality where the facility is located, or to be located.Texas Natural Resource Conservation Commission Page 9

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 Section 116.130 is also revised by adding a new subsection (c) that requires applications subject to reviewunder Subchapter C to go through public notice. All applications subject to the requirements of FCAA, §112(g) and 40CFR Part 63, Subpart B, whether initial applications or amendments to existing case-by-case MACT determinations, must go through the public notice process. This is because 40 CFRPart 63, Subpart B, §63.43(c)(2)(ii), requires that all such determinations be subject to public notice. To assist in the implementation of the commission's directive to facilitate and improve the public notice process, the commission proposes to provide the phone number ofthe appropriate commission office to contact for further information as a part of the public notice required in § 116.132(a)(11) and § 116.133(a)(6) rather than the phone number of the appropriate TNRCC regional office. Section 116.136(a) is proposed to be revised to correctly refer to the requirement that the executive director make a preliminary determination to issue or deny a permit subject to the FCAA, Title I, Parts C or D or to 40 CFR §51 .165(b) or the availability of the preliminary analysis that is required for other permitting actions. This change will make § 116.136(a) consistent with the requirements of § 116.132(a)(6) and (7), concerning public notice format. The commission proposes to amend §116.140, concerning Applicability of Permit Fees, by deleting reference to operating permits and standard exemptions, because these types of authorizations are no longer included in Chapter 116. The reference to operating permits is deleted because the commissionTexas Natural Resource Conservation Commission Page 10

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98001-116-AI 

### Revised 2124198

no longer issues state operating permits. This should not be confused with federal operating permits issued under 30 TAC Chapter 122, concerning Federal Operating Permits. Exemptions from permitting are now

contained in Chapter 106. The commission proposes to amend §116.141(b)(1) to specify that any application for newor modified facilities controlled by the federal government will be charged a fee of $450 . The existing provision qualifies the fee requirement for federal government applications submitted after January 1987. Since all of the pre-1987 applications fromthe federal government have been acted on by the commission, this provision is no longer necessary. Section 116.141(c)(1)(A) is revised to address an interpretation problemwith the current rule. As currently written, the rule has confused some applicants and staff concerning the computation of direct costs for facilities that are no longer permitted (e.g., the permit expired and was not renewed) . A historical reviewofthis section indicates that the original fee language was added prior to any requirements for renewal (and expiration) of permits. The confusion lies around whether "permitted" means currently permitted or ever permitted regardless of current status. With two possible interpretations, neither has been consistently applied and the proposed language will rectify this situation. The commission does not believe that it is appropriate to allowthe direct costs of process and control equipment of a facility to be excluded ifthe facility once had a permit but no longer does. Allowing this exclusion would promote the argument that higher renewal fees could be avoided in favorTexas Natural Resource Conservation Commission Page 11

Chapter 116 - C ~trol of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 of a minimum newpermit fee. It is not expected that this change will result in significantly higher fees and it will ensure that all applications are reviewed consistently for fee determinations . The commission proposes to amend § 116.143 by correcting the TNRCC mailing address where permit fees are submitted. The previous mailing address was a street address rather than a post office box. SUBCHAPTER C

: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, §112(g), 40 CFR Part 63) . The proposed revisions contain a newSubchapter Cwhich is intended to meet the requirements of the 1990 FCAA amendments, §112(g), as set forth in 40 CFR 63, §§63.40-63.44. Included in Title III of the 1990 FCAA amendments, § 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of case-by-case MACT ifa facility is constructed or reconstructed before EPA issues a MACT standard or air toxics regulation for that particular category of sources or facilities. 40 CFRPart 63, Subpart B, requires the commission to make case-by-case MACT determinations for sources that become subject to § 112(g) prior to the EPA promulgating a MACT that would apply to the source. 40 CFR 63, §63.42 allows states to rely on existing NSRpermitting programs to implement the requirements of § 112(g) ifthe NSR programmeets the requirements of that subpart. The commission believes that, with some modifications, the existing NSRprogramcan implement the requirements of § 112(g) and 40CFR Part 63, Subpart B. Accordingly, the commission believes thatTexas Natural Resource Conservation Commission Page 12

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98 the Best Available Control Technology (BACT) determinations made in the NSRprogramwill be the equivalent to the requirements for case-by-case MACT determinations.

After June 29, 1998, the effective date of §112(g)(2)(B), and the approval date of a Title Vpermit ~ program-in the state, all owners and operators of major sources subject to the § 112(g) programthat are constructed or reconstructed will be required to install MACT unless specifically exempted. As originally implemented, Chapter 122 was a source category limited interimapproved program . This meant that only certain standard industrial classification codes were required to apply for an operating permit under the interimprogram . The remaining sources were to apply upon the approval of the full programby the EPA

. Chapter 122 was recently revised (November 1997) to require all sources

.subject to that programto submit an abbreviated application by February 1, 1998. This revision has the effect of bringing all sources in the state who are subject to the rule into the programwell before the expected date required for full programapproval . Therefore, after June 29, 1998, and after the EPA approves the recent revisions to Chapter 122, sources that trigger §112(g) reviewmust apply to the commission for a case-by-case MACT determination under §116.182, concerning Application. The TNRCCstaff expects Chapter 122to be revised prior toJune 29, 1998. Administratively complete applications that are submitted prior toJune 29, 1998, and the approval of the revised Chapter 122, will not be subject to the requirements of Subchapter C. After the effective date of §112(g)(2)(B) and upon approval of the state's federal operating permit program, sources subject to the requirements of Subchapter Cwill not be able to use a Chapter 106Texas Natural Resource Conservation Commission Page 13

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al 

### Revised 2/24/98 exemption or a standard permit under Subchapter F (unless the particular standard permit's terms and conditions meet the requirements of Subchapter C) because all case-by-case MACT determinations are subject to the public notice requirements of Subchapter B. Sources will not be able to use § 116.116(e), concerning changes to qualified facilities, because the staff interprets §63.43(d) to require the case-by-case MACT determinations to be equivalent to current BACT determinations. Section 63.43(d)(1) provides that the MACT emission limitation "shall not be less stringent than the emission control which is achieved in practice by the best controlled similar source, as determined by the permitting authority ." Section 116.116(e) allows for the use of ten-year old BACT for qualified facilities. In some cases, ten-year old BACT may not necessarily be equivalent to today's BACT. An additional prohibition on the use of § 116.116(e) is the requirement for case-bycase MACT determinations to go through public notice. Sources will have limited use of flexible permits under Subchapter G . Currently, flexible permits allow for control that exceeds BACT on one facility in lieu of installing controls on other facilities. The staff believes that § 112(g) and 40 CFRPart 63, Subpart B, require the case-by-case MACT determination to be applied to the specific affected facilities. Therefore, §116.711(3) was revised to indicate that BACT shall be applied to specific facilities that must comply with Subchapter C . As long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with determinations made under Subchapter C.Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al Revised 2/24/98 Page 14

In §116.181, concerning Exclusions, the commission is currently proposing the same set of exclusions that are provided in 40CFR 63, §63.40(c)-(f) . The commission has determined that in order to provide a programconsistent with the requirements of 40 CFRPart 63, §§63.40-63.44, the same set of exclusions should be provided.

In general, ifthe owner or operator wants to construct or reconstruct a major source (as specified in §116.180(a)(1) and (2), concerning Applicability), then prior to that construction or reconstruction, the 

### owner or operator must apply to the commission for acase-by-case MACT determination under §116.182, concerning Application. The application must contain the information required by the commission as provided in §116.111, concerning General Application. In addition, the application must sv - : .fy the emission controls that will ensure that MACT will be met. Finally, the application for the proposed constructed or reconstructed major source must undergo the public notice requirements required by § 116.130, which includes a 30-day public comment period and opportunity for a contested case hearing. After fully considering public comments and the results of any hearing, the commission would then issue (or deny) a permit, or approve a permit amendment, authorizing the construction or reconstruction of the major source. The case-by-case MACT determination codified in a permit issued under Chapter 116 would become an applicable requirement of Chapter 122 after satisfying the appropriate operating permit revision process and would be included in as a condition in an operating permit .Texas Natural Resource Conservation Commission Page 15

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 In proposing Chapter 116, Subchapter C, the executive director is certifying that the proposed § 112(g) programsatisfies all applicable requirements established by 40CFR §§63.40-63.44. After June 29, 1998, the effective date of §112(g)(2)(B), and upon approval of the recently revised Chapter 122, all owners and operators of major sources subject to the § 112(g) programthat are constructed or reconstructed will be required to install MACT unless specifically exempted. As outlined in the EPA preamble to the final rules implementing §112(g) (see 61 FR 68390), the programproposed is not required to have EPA approval before taking effect . SUBCHAPTER D

: PERMIT RENEWALS. The commission proposes anew§116.311(a)(4) to include the requirement that applicants submit information in applications for permit renewals demonsrT~- ;ng that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C

. Section 116.311(5) is added to include the requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of Subchapter C of this chapter. Section 116.314, concerning Review Schedule, is amended to refer to the correct chapters of the commission's regulations concerning contested case hearings.Texas Natural Resource Conservation Commission Page 16

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 SUBCHAPTER F: STANDARD PERMITS. The commission proposes amendments to §116.610(a)(5), concerning applicability ofstandard permits, to include the requirement that applicants submit information in applications for standard permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C. The commission proposes a new§116.610(d) to clarify that facilities subject to Subchapter C of this chapter are not eligible for a standard permit under Chapter 116, unless the particular standard permit's terms and conditions meet the requirements of Subchapter C . This is because 40 CFRPart 63, §63 .43(c)(2)(ii), requires all case-by-case MACT determinations to be subject to public notice.

The commission nrnrnses to amend §116.614, concerning Standard Permit Fees, by correcting the TNRCC mailing address where permit fees are submitted. The previous mailing address did not have the correct mail code or zip code. The commission proposes to amend § 116.620, concerning Installation and/or Modification ofOil and Gas Facilities, to reference the appropriate exemptions under Chapter 106 rather than the former standard exemption. In addition, § 116.620(a)(13) also includes reference to case-by-case MACT reviewunder Subchapter C. Section 116.620(a)(16) is added to require applicants to submit information in applications for standard permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C.Texas Natural Resource Conservation Commission Page 17

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al 

### Revised 2/24/98 The commission also proposes to amend §116.621(2)(F), concerning municipal solid waste landfills, to refer to the correct exemptions under Chapter 106 rather than the former standard exemption. In addition, §116.621(2)(F) includes reference to reviewunder Subchapter C. SUBCHAPTERG

: FLEXIBLE PERMITS. Consistent with the proposal to delete §116.110(b), the commission proposes to delete the operations certification requirements contained in § 116.710(b) as a result of recommendations made by the TNRCC regional offices and the Office of Compliance and Enforcement . The commission believes that the operations certification requirement created unnecessary reporting and paperwork and could be implemented more effectively through Chapter 116 permits on a case-by-case basis. Section 116.710(c) is revised to be consistent with the changes proposed to §116.116(e), concerning seals of Texas licensed professional engineers. Section 116.711(3) is revised to require applicants to demonstrate that the proposed control technology meets the current BACT requirements for any constructed or reconstructed facility that is required to meet Subchapter C. Section 116.711(6) is added to require applicants to submit information in applications for flexible permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C.Texas Natural Resource Conservation Commission Page 18

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98 The commission also proposes amendments to §116.711(11), concerning flexible permit applications, by adding a requirement that facilities subject to reviewfor constructed or reconstructed major sources of hazardous air pollutants under FCAA, §112(g) and 40CFR Part 63 must comply with Subchapter C . Along the same lines, the commission proposes to amend §116.715(a), concerning general and special conditions, to include the case-by-case MACT reviewunder Subchapter Cwhen considering whether a facility is eligible for a flexible permit under §116.710. A reference to Subchapter Cwas added because the commission wants to ensure that a facility operating under the terms of a flexible permit is in compliance with the federal permitting requirements of Subchapter C. As noted in the preamble discussion concerning Subchapter C, as long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with case-by-case MACT determinations. In addition, §116.715 is amended to make the correct reference to Chapter 106. In order to properly refer to the Engineering Services Section, the commission proposes to amend §116.715(c)(4) by deleting a reference to the Source and Mobile Monitoring Section.

Section 116.740(b), concerning public notice and comment, is added to require public notice for flexible permit amendments that address a case-by-case MACT determination under Subchapter C. Flexible permit amendments that do not concern case-by-case MACT determinations are not required to complete the public notice process. This change is being made to allowsources to continue to fully utilize flexible permits while meeting the conditions of Subchapter C.Texas Natural Resource Conservation Commission Page 19

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98 In addition, the commission proposes to amend § 116.721 and § 116.750, concerning Amendments and Alterations and Flexible Permit Fee, to correctly reference Chapter 106 rather than the former Chapter 116 for standard exemptions. Section 116.750(b) is amended to clarify that the minimumfee for a flexible permit amendment is $450 . This is not a change to the existing fee structure; rather, it is to correct an oversight to include the $450 minimumfee. The $450 minimumfee has been applied, when applicable, to all applications for flexible permit amendments. This correction will make this section consistent with Subchapter B regarding fees for NSRpermit amendments. REVIEW OF AGENCY RULES. The commission also proposes to review the rules contained in 30 TAC Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, as mandated bv ;.he General Appropriations Act, Article IX, Section 167. Section 167 requires state agencies to reviewand consider for readoption rules adopted under the Administrative Procedure Act. The reviews must include, at a minimum, an assessment that the reason for the rules continues to exist. The commission has reviewed the rules in Chapter 116 and determined that the rules in Chapter 116 are still necessary they implement critical provisions ofthe Texas Health and Safety Code, Texas Clean Air Act, Chapter 382, as well as 42 United States Code Annotated, §7401 to 7671q, of the Federal Clean Air Act. Chapter 116provides the procedures for action on any application for a permit for construction or modification or renewal of a permit for a facility that will emit air contaminants into the air of the state.Texas Natural Resource Conservation Commission Page 20

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al Revised 2124198 FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year period the sections are in effect, there will be no significant fiscal implications anticipated for state or local government as a result of enforcing or administering the sections.

PUBLIC BENEFIT. Mr. Minick also has determined that for each year of the first five years the sections are in effect, the anticipated public benefit will be that the rules will conformto the commission's guidelines for regulatory reform . This will increase the readability of the rule, thus assisting the public and the regulated community in their understanding of the regulation. The additional changes are proposed to clarify existing rule language and make the rule consistent with current procedures will benefit the public in that the rule will better reflect the TNRCC's current operating procedures. The provisions of Chapter 116 will also implement the newrequirements of Title III of the FCAA for the permitting of construction or reconstruction .of major sources of hazardous air pollutants. After June 29, 1998, the effective date of § 112(g)(2)(B), and the approval date of a Title V permit program in the state, all owners and operators of major sources subject to the §112(g) programthat are constructed or reconstructed will be required to install MACT unless specifically exempted. The public benefit fromthe implementation of this programis that the commission, and not the EPA, will be the agency responsible for the oversight of the new program . Since the existing NSRpermitting process, with some modifications, will be used to implement the requirements of § 112(g) and 40 CFRPart 63, Subpart B, the regulated community and the public will already be familiar with that process.Texas Natural Resource Conservation Commission Page 21

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al Revised 2/24/98 The proposed revisions do not impose significant newrequirements on the regulated community, small businesses, or persons who are required to comply with the sections as proposed. DRAFT REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements ofTexas Government Code (the Code), §2001 .0225, and has determined that the rulemaking is not subject to §2001 .0225 because it does not meet the definition of a "major environmental rule" as defined in the Code. The portions of the rules implementing the FCAA, § 112(g) do not meet the definition because the obligations have already been established by federal law and thus are not new requirements. The other portions of the rules correcting typos, clarifying language, and instituting regulatory reformchanges are not of a magnitude to affect the economic factors in a mater;, ' -,ay . TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for these rules under Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the rule amendments and repeals is to implement the requirements ofTitle III of the FCAA, Hazardous Air Pollutants, § 112(g), Modifications, and 40 CFRPart 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) . The rule amendments and repeals will also implement the commission's guidelines on regulatory reformas well as provide clarifications to existing rule language, streamline procedures, and make the rule consistent with other commissionTexas Natural Resource Conservation Commission Page 22

Chapter 116- Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al 

### Revised 2124198 rules. Promulgation and enforcement of the rule amendments and repeal will not create a burden on private real property. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW . The commission has determined that this proposed rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Conservation.Commission. Natural Resources Code, §§33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, Consistency with the Texas Coastal Management Program . As required by 31 TAC §505.11(b)(2) and §505.22(a), and 30 TAC §281 .45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutanr pmissions must be consistent with applicable CMP goals and policies. The commission has reviewed this proposed rulemaking action for consistency, and has determined that this proposed rulemaking action is consistent with the applicable CMP goals and policies. - Chapter 116proposes a newprogramthat implements the requirements ofTitle III ofthe FCAA, Hazardous Air Pollutants, §112(g), Modifications, and 40 CFRPart 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology. The proposed rule revisions are consistent with the goals and policies of the CMP because they are being proposed to implement the new§ 112(g) program . The new§1 l2(g) programrequires preconstruction reviewof major sources of hazardous air pollutants. This newTexas Natural Resource Conservation Commission Page 23

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98041-116-AI 

### Revised 2124198 programwill require a reviewof the controls proposed for these major sources and could result in a reduction in air emissions. The majority of the proposed revisions will not impact air emissions since they are being done under the commission's guidelines on regulatory reformor for the purpose of clarification of existing procedures. The proposed changes concerning fees should not impact the status quo of the NSR permitting program, since the-changes concerning direct costs provide consistency when calculating fees for newconstruction permits. Interested persons may submit comments on the consistency of the proposed rules with the CMP goals and policies during the public comment period. PUBLIC HEARING. A public hearing on the proi-:~~sal and rules review will be held April 16, 1998, at 10:00 a.m

. in Room

2210 of TNRCC Building F, located at 12100 Park 35 Circle, 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, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. SUBMITTAL OF COMMENTS. Written comments regarding this proposal may be mailed to Lisa Martin, TNRCC Office of Policy and Regulatory Development, MC205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 98001-116-AI . Comments must be received by 5:00 p.m ., April 20, 1998. The commissionTexas Natural Resource Conservation Commission Page 24

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 requests that comments on the results of the reviewof its rules be clearly identified separately from comments on the proposed changes in order to facilitate their assessment. For further information or questions concerning this proposal, please contact Mark Gibbs of the New Source ReviewPermitting Division, Office of Air Quality, (512) 239-1297.

Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900 . Requests should be made as far in advance as possible. STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, ~-~``rh provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewofthe commission's rules is proposed under Article IX, Section 167, General Appropriations Act, 75th Legislature, 1997.

The proposed repeals implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority ofCommission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit.Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### SUBCHAPTER A: DEFINITIONS §§116.10, 116.11, 116.13, 116.14 §116.10. General Definitions

. §116 .11. Compliance History Definitions. §116.13. Flexible Permit Definitions . §116.14. Standard Permit Definitions.Texas Natural Resource Conservation Commission Page 26

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2124198 

### SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS PERMIT APPLICATION §§116.110-116.112,116.114-116.118

STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy ofthe commission. The reviewofthe commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit . 

### §116.110. Applicability. §116.111 . General Application. §116.112. Distance Limitations.Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### §116.114. Application ReviewSchedule. §116.115. General and Special Conditions. §116.116. Changes to Facilities. §116.117. Documentation and Notification of Changes to Qualified Facilities. Page 27

§116.118. Pre-change Qualification.Texas Natural Resource Conservation Commission Page 28

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98001-116-AI 

### Revised 2124198 SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS COMPLIANCE HISTORY §§116 .120-116.126

STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy ofthe commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority ofCommission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 

### §116 .120. Applicability. §116.121 . Exemptions §116.122. Contents of Compliance History.Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### §116.123. Effective Dates. §116.124. Public Notice of Compliance History. §116.125. Preservation of Existing Rights and Procedures. §116.126. Voidance of Permit Applications.Texas Natural Resource Conservation Commission Page 30

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98041-116-AI 

### Revised 2/24/98 SUBCHAPTER D: PERMIT RENEWALS §§116 .310-116 .314

STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAAand approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit . §116.310. Notification of Permit Holder. §116 .311 . Permit Renewal Application. §116.312. Public Notification and Comment Procedures. §116.313. Renewal Application Fees.Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 §116.314. ReviewSchedule.Texas Natural Resource Conservation Commission Page 32

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### SUBCHAPTER A: DEFINITIONS §§116.10,116.11,116.13-116.15

STATUTORY AUTHORITY. The new sections are proposed under the Texas Health and Safety ~ Code, T,CAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider ' 167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. &11610 General Definitions. Unl ess specifically defined in the TCAA or in the rules of the commission __the terms used -by the commission have the meanings commonly ascribed to themin the field of air pollution control . In addition to the terms which are defined by the TCAA and in &101 1 of this title (relatine to Definitions) the following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.Texas Natural Resource Conservation Commission

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### Page 33

(1) Actual emissions - The highest rate of emissions of an air contaminant actually achieved froma qualified facility within the 120-month period prior to the change. This rate cannot exceed any aoDlicable federal or state emissions limitation. This definition applies only when determinine whether there has been a net increase in allowable emissions under ~116.116(e) ofthis title (_relating to Changes to Facilities) .

(2) Allowable emissions - The authorized rate ofemissions of an air contaminant from a facility as determined in accordance with this section. This rate cannot exceed any applicable state or federal emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under ~116.116(e) of this title. (A) Perinitted facility - For a facility with a preconstruction permit under this chapter, the allowable emissions shall be any emission limit established in the permit on a MAERT and any emission limit contained in representations in the permit application which was relied upon in issuing the permit. plus any allowable emissions authorized by an exemption under Chapter 106 ofthis title relating to Exemptions fromPermitting)

. jB Exempted facility - For a facility operating under Chapter 106 ofthis title, the allowable emissions shall be the least ofthe emissions rate allowed in Chapter 106 Subchapter A of this title (relating to General Requirements) the emissions rate specified in the applicable exemption or the federally enforceable emission rate established on a PI-8formTexas Natural Resource Conservation Commission Page 34

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al 

### Revised 2I24198 (C) Grandfathered facility - For a qualified grandfathered facility, the allowable emissions shall be the maximumannual emissions rate after the implementation of anv air pollution control methods to become a qualified facility, plus 10%of the maximum annual emissions rate prior to the implementation of such control methods, but in no case shall the allowable emissions be greater than the maximumannual emissions rate prior to the implementation of such control methods The maximumannual emissions rate is the emissions rate at the maximumannual capacity a ccording to the physical or operational design of the facility, data fromactual operations over a period of no more than 12 months that demonstrates the maximumannual capacity, or other information that

-demonstrates the maximumannual capacity. Except where a grandfather facility has been-modifiedthe allowable emissions for the modification shall be determined as a permitted facility. (D) Standard permit facility - For a facility authorized,by standard permit. other than § 116 617(,2) ofthis title (relating to Standard Permits for Pollution Control Proiects) . the allowable emissions shall be the maximum emissions rate represented in the registration for the standard permit. (E) S12ecial exemption facility - For a facility operating under a special exemption the allowable emissions shall be the emissions rate represented in the original special exemption request.Texas Natural Resource Conservation Commission

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### Page 35

_(F) The allowable emissions for a qualified facility shall not be adjusted by the voluntarv installation of controls.

(3) Best available control technology (BACT) - BACT with consideration given to the technical practicability and the economic reasonableness of reducing or eliminating emissions from the facilitv. (4) Facility - Adiscrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not a facility.

(5) Federally enforceable - All limitations and conditions whicli are enforceable by the EPA, including: (A) those requirements developed under Title 40 of the Code of Federal Regulations (CFR) Parts 60 and 61 (40CFR 60and 61~ .; (B_) Chapter 113. Subchapter C ofthis title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA §112. 40 CFR63)) : (C) requirements within any applicable state implementation plan (SIP) ;Texas Natural Resource Conservation Commission Page 36

Chapter 116- Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2124198 (D) any permit requirements established under 40 CFR §52.21 : or (E) any permit requirements established under regulations approved under 40 CFRPart 51 Subpart 1 including permits issued under the EPA-ap r~vedprogramthat is incorporated into the SIP and that expressly requires adherence to any permit issued under such program

(6) Grandfathered facility - Any facility that is not a new facility since it was constructed prior to the permit requirements ofthis chapter.

(7) Lead smelting plant - Any facility which produces purified lead by melting and separating lead frommetal and nonmetallic contaminants and/or by reducing oxides into elemental lead Raw

materials consist of lead concentrates lead-bearing ores or lead scran.'drosses. or other lead bearin2 residues Additional ~rocessin~ may include refining and alloying. A facility which only rem elts lead bars or ingots for casting into lead products is not a lead smelting plant.

(8) Maximumallowable emissions rate table (MAERT) - A table included with a preconstruction permit issued under this chapter that contains the allowable emission rates established by the permit for a fag lit"Texas Natural Resource Conservation Commission Page 37

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98

(9_) Modification of existing facility - Any physical change in, or change in the method of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the facility into the atmosphere or that results in the emission of any air contaminant not previously emitted. The term does not include: (A) insignificant increases in the amount of any air contaminant emitted that is authorized by one or more commission exemptions: (B insignificant increases at a permitted facility_; (C) maintenance or replacement of equipment components that do not increase or tend to increase the amount or change the characteristics of the air contaminants emitted into the atmosphere: (D) an increase in the annual hours of operation unless the existing facility has received a preconstruction permit or has been exempted. under the TCAA. §382.057. from preconstruction permit requirements: (E) a phvsical change in or change in the method of operation of a facility that does not result in a net increase in allowable emission of any air contaminant and that does not result in the emission of any air contaminant not previously emitted provided that the faciliWTexas Natural Resource Conservation Commission Page 38

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2124/98 (i,) has received a preconstruction permit or permit amendment or has been exempted under the TCAA &382.057.. frompreconstruction permit requirements no earlier than 120months before the change will occur: or (ii) uses re, .gardless of whether the facility has received a preconstruction permit or permit amendment or has been exempted under the TCAA &382.057. an air pollution control method that is at least as effective as the BACT that the commission reauired or would have required for a facility ofthe same class or type as a condition of issuing a 12ermit or permit am endment 120 months before the change will occur:

_(F) a physical change in or change in the method of operation of. a facility where the change is within the scope of a flexible permit: or (G) a change in the method ofoperation of a natural gas processing. treatin~. or compression facilily connected to or nnrt of a natural gasgat - 1- does not result in an annual emission rate of any air contaminant in excess of the volume emitted at the_ maximumdesigned capacity. provided that the facility is one for whi ch: (i) construction or operation started on or before September 1 1971 . and at which ei ther no modification has occurred after September 1 1971 or at which modifications have occurred only under Chapter 106 of this title: orTexas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

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(ii) construction started after September 1 . 1971 . and before March 1 . 1972, and which registered in accordance with TCAA. U82.060. as that section existed prior to September 1 . 1991 .

(,10) New

facility - A facility for which construction is commenced after August 30, 1971 . and no contract for construction was executed on or before Au ug st 30, 1971, and that contract efore Februa (11) New

source - Any stationary source, the construction or modification of which is commenced after March 5. 1972.

(12) Nonattainment area - A defined region within the state which is designated by the EPA as failing to meet the national ambient air quality standard for a pollutant for which a standard exists. The EPAwill designate the area as nonattainment under the provisions of FCAA. 4107(d) .

(13) Public notice - The public notice of application for a permit as required in this chapter. (14) Qualified facility - An existing facility that satisfies the criteria of either paragraph (9)(E(i or (ii) of this section.Texas Natural Resource Conservation Commission

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(15) Source Apoint of origin of air contaminants whether privately or publicly owned or operated. §116. 11 . Compliance History Definitions. Unless specifically defined in the TCAA or in the rules ofthe commission the terms used -by the commission have the meanings commonly ascribed to themin the field of air pollution control . In addition to the terms which are defined by ,the TCAA and in ~101 1 of this title (relating to Defi nitions), the followingwords and terms when used in §§116. 120-116. 126 of this title (relating-Lo Comnliance History) shall have the following meanings unless the context clearly indicates otherwise.

(1) _A diudicated decision Any conviction final order,judgmerit or decree as follows : (A) a criminal conviction of the applicant nlicant in

any court for violation of any law of thi s state another state or ofthe United States governing air contaminamr= (B) a final order judgment . or decree of an court or administrative aeenctr, or agreement entered into settlement of any legal or administrative action broueht in a court or administrative agency, addressing:Texas Natural Resource Conservation Commission

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(i) the applicant's past performance or compliance with the laws and rules of this state another state, or of the United States governing air contaminants: or (ii) the terms of any permit or order issued by the commission: or , (C) an order of any court or administrative agency. whether final or not, respecting air contaminants for the facility that is the subject of the permit application.

(2_) Compliance event - An ad-judicated decision or compliance 12roceeding_as defined in paragraphs (1) and (4) this section.

(3) Compliance history, - The record of an applicant's adherence to air pollution control laws and rules of the State of Texas. other states, and of the United States except as provided in S 116.123 of this title (relating to Effective Dates) . The history shall be for the five-year 12eriod prior to the date on which the application for issuance. amendment, or renewal is filed. The compliance history shall include all co=liance events. as defined in this section.

(4) Compliance proceeding - A notice ofviolation issued by the commission or other agency for which the commission has recommended formal enforcement action and has notified the applicant of such recommendation.Texas Natural Resource Conservation Commission

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Construction or Modification 

### Rule Log No. 98001-116-AI Revised 2124/98

(5) Existing site - A121ant property that is not a newsite. Page 42

(6) New

site - A plant property having an operating history less than five years in length as of the date of application. H16 . 13. Flexible Permit Definitions. The following words and terms when used in this chapter shall have the following meanings. unless the context clearly indicates otherwise.

(1) Emission cap ,- Emission limit for a specific air contaminant based on total em issions of that pollutant adjusted by an insignificant emissions factor fromall sources that are included in a flexible permit.

(2) Expected maximumcapacit,y - The maximum caPacitv of a facility according to its physical and .operational design and planned operation.

(3) Individual emission limitation - Emission limit for a staecific air contaminant not covered by an emission cap for an individual facility adjusted by an insignificant emissions factor .Texas Natural Resource Conservation Commission

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 H16.14. Standard Permit Definitions. The followin words and terms, when used in this subcha Page 43

ter, shall have the followin meanings, unless the context clearly indicates otherwise.

(1) Off-plant receptor - For the purposes of Subchapter F of this chapter relatingto Standard Permits) only, shall be defined as any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or owner of the property upon which the facilities are located.

(2) Oil and gas facility - For the puEposes of Subchapter F of this chapter onl,y, shall be defined as facilities which handle gases and liquids associated with the production conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface These oil and gas facilities include, but are not limited to: oil or gasproduction facilities, water injection facilities: carbon dioxide separation facilities: or oil or gas pipeline facilities consisting ofone or more tanks, separators. dehydration units free water knock-outs gunbarrels heater treaters vapor recovery units, flares. pumps, in liquid recoverv units or gas sweetening and other gas conditioning facilities This definition does not include sulfur recov

e_rv units.Texas Natural Resource Conservation Commission

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(3) Sulfur recovery unit - For the purposes of Subchapter F of this chapter only. shall be defined as a process device whose- rimar~pur~ose is to recover elemental sulfur fromacid 2as. 

### §116. 15. Section 112(g) Definitions. The following words and terms when used in Subchanter C of this chaDter (relatins to Hazardous Air Pollutants Regulations Governing Constructed or Reconstructed Major Sources (FCAA &112(e) 40 CFRPart 63)) shall have the following meanings unless the context clearlv indicates otherwise.

(1 ) Affected source The stationary source or group of stationary sources which. when fabri cated (on-site) . erected or installed meets the criteria in ~116 180(a)(1) and (2) of this title (relating to Applicability)

. (2_) Control technology Measures,processes methods, systems. or techniques limit the emission of HAPs including, but not limited to measures that: (A) reduce the auantitv of or eliminate emissions of such pollutants throush process changes substitution of materials or other modifications: (,B) enclose systems or processes to eliminate emissions:Texas Natural Resource Conservation Commission

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(C) collect capture or treat such pollutants when released froma process stack, storage. or fugitive emissions point : (D) are design, equipment work practice or operational standards (including requirements for operator training or certification as provided in 42 United States Code 7412(h) or (E) are a combination of subparagraphs (A)-(D) of this paragraph (3) Electric utility steamgenerating unit - Any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale A unit that co- enerates steam and electricity and supplies more than one-third of its potential electric output capacity and more than 25 megawatts electric output to any utility power distribution systemfor sale shall be considered an electric utility steamgenerating unit.

(4_) Greenfield site - A contiguous area under common control that is an undeveloped site. (5) Hazardous air pollutant (HAP) - Any air pollutant listed under the FCAA 112 1. (6) List ofsource categories - The Source Category List required by FCAA §1 12(c).Texas Natural Resource Conservation Commission Page 46

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### Revised 2/24/98

(7) Maximumachievable control technology emission limitation for new sources - The emission limitation which is not less strinizent than the emission limitation achieved in practi ce 4 the best controlled similar source and which reflects the maximum decree of reduction in emissions that the executive director, taking into consideration the cost of achieving such emission reduction. and any non air quality health and environmental impacts and ener~v reauirements, determines is achievable by the constructed or reconstructed major source.

(8_) Process or production unit - Any collection ofstructures and/or equipment, that processes assembles applies, or otherwise uses material inputs to produce or store an intermediate or final product A single facility may contain more than one process or producti on unit.

(_9) Research and development activities - Activities conducted at a resear_ch or laboratory facility whose primary purpose is to conduct research and development into newprocesses and products where such source is operated under the close supervision oftechni cally trained personnel and is not engaged in the manufacture of 12roducts for sale or exchange for commercial profit except in a de minimis manner .

(10 ) Similar source A stationary source or =cess that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed maior source such that the source could be controlled using the same control technology.Texas Natural Resource Conservation Commission Page 47

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### SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS PERMIT APPLICATION §§116.110-116.112,116.114-116.118

STATUTORY AUTHORITY. The new sections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose ofthe TCAA and approve all general policy of the commission. The reviewofthe commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116.110. Applicability., (a) Permit to construct Any person who 121ans to construct any new facility or to engage i the modification of any existing facility which may emit air contaminants into the air ofthis state shall either : (l) obtain a permit under §116 111 of this title (relating to General Application) :Texas Natural Resource Conservation Commission

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(2) satisf~the conditions for a standard permit under the requirements in: . (A) Subchapter F of this chapter (relating to Standard Permits) : Page 48

(_B) Chapter 321 Subchapter K of this title (relating to Concentrated Animal Feeding Operations) : 

### (C) Chapter 332 of this title (relating to Compostin~) : or

IT )) Chapter 330 Subchapter N of this title (relating ; to Landfill Mining) : (3) satisfy the conditions for a flexible permit under the requirements in Subchavter G of this chapter (relating to Flexible Permits) : or

(4) satisf3~ the conditions for exemnt facilities under Chapter 106 of this title (relating to Exemptions fromPermitting,) before any actual work is begun on the facility . (b ) Modifications to existing permitted facilities Modifications to existing permitted--fad- fiti-e --~ m ay be handled through the amendment ofan existing permit or an existing flexibl e permit.Texas Natural Resource Conservation Commission

Chapter 116- Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 (c) Exclusion. Owners or operators of constructed or reconstructed facilities subiect toPage 49

Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA. ~112(g) 40 CFR Part 63)1 are not authorized to use:

(1) an exemption under Chapter 106 ofthis title: (2_) standard permits under Subchapter F of this chapter that do not meet the rec.uirements of Subchapter C of this chapter: or

(3) &116.116(e) of this title (relating to Changes to Facilities) . Q Change in ownership. _(1) Within 30days after the change of ownership of a facility 12ermitted under this chapter, the newowner shall notify the commission and certify the following: (A) the date of the ownership change: (B) the name, address. 12hone number, and contact person for the newowner :Texas Natural Resource Conservation Commission Page 50

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### Revised 2/24/98 (C) an agreement by the newowner to be bound by all permit conditions and all representations made in the permit application and any amendments and alterations: (D) there will be no change in the type ofpollutants emitted: and (E) there will be no increase in the quantity of pollutants emitted. (2) The newowner shall comply with all permit conditions and all renresentations made in the ,permit application and any amendments and alterations . (e_) Submittal under seal of TPxas licensed professional engineer. Applications for permit or permit amendment with an estimated capital cost of the p,roject above $2 million 'and no t subject to an exemption contained in the Texas Engineering Practice Act (TEPA) shall be submitted under seal of a Texas licensed professional en, .gineer . However nothing in this subsection shall limit or affect any requirement which may apply to the practice ofengineering Lunder the TEPA or the actions .of the Texas Board of Professional Engineers. The estimated capital cost is defined in &116.141 of this title (relatinQto Determination of Fees) (f) Resl2onsibility for permit application, The owner of the faciltv or the operator ofthe facilitv authorized to act for the owner is responsible for complyin_g~with this section.Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 §116.111 . General Application. Page 51

In order to be granted a oermit, amendment, or special permit amendment, the application must include: (1) a completed FormPI-1 General Application signed by an authorized representative of the applicant . All additional support information specified on the formmust be .provided before the application is complete:

(2) information which demonstrates that all of the following are met. (A) Protection of public health and welfare. (i) The emissions fromthe proposed facility will comply with all rules and regulations of the commission and with the intent of the TCAA including protection of the health and physical propertv of the ,people. (ii) For issuance of a permit for construction or modification of any facility within 3. 000 feet of an elementary -junior high/middle or senior high school the commission shall consider any possible adverse short-termor long-termside effects that an air contaminant or nuisance odor fromthe facility may have on the individuals attending the school(,s)Texas Natural Resource Conservation Commission Page 52

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Construction or Modification Rule Log No. 98001-116-AI Revised 2124198 (B) Measurement of emissions The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the executive director . This may include the installation of sampling ports on exhaust stacks and construction ofsampling platforms in accordance with uidelines in the "Texas Natural Resource Conservation Commission (TNRCC) Sampling Procedures Manual ." (C) Best available control technology (BACT) The proposed facility will utilize BACT with consideration given to the technical practicability and economic reasonableness of reducing or eliminating_the emissions fromthe facility. (D) New

Source Perf-~--i ance Standards (NSPS) The emissions fromthe proposed facility will meet the requirements of any applicable NSPS as listed under Title 40 Code of Federal Regulations (CFR) Part 60 promulgated by the EPA under FCAA § 111 . as amended. (E) National Emission Standards for Hazardous Air Pollutants (NESHAPI-The emissions fromthe.proposed facility will meet the rec~uiremeIts of any applicable NESHAP as listed under 40 CFRPart 61 promulgated 12y EPA under FCAA U12 as amended. (F) National Emission Standards for Hazardous Air Pollutants for Source Categories The emissions fromthe proposed facility will meet the requirements of any applicable maximumachievable control technology standard as listed under Chapter 113 Subchapter C of thisTexas Natural Resource Conservation Commission

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title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories 

### (FCAA4112, 40 CFR63)) . (G) Performance demonstration. The proposed facility will achieve the performance specified in the permit application The applicant may be required to submit additional eneineerin2 data after a permit has been issued in order to demonstrate further that the proposed facility will achieve the performance specified in the permit application In addition dispersion modeling, monitoring, or stack testing ma be required. (H) Nonattainment review . Ifthe proposed facility is located in a nonattainment area, it shall comply with all applicabl e reduirements in this chapter concerning nonattainment review

. ' (1) Prevention of Significant Deterioration (PSD) review . If the proposed facility is located in an attainment area it shall comply with all applicable requirements in this chapter concerning PSD review . 

### J required by the executive director to determine air quality impacts froma proposed new facility or source modification.Texas Natural Resource Conservation Commission

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(K) Hazardous air ,pollutants If the proposed constructed or reconstructed facil ity is a major source for hazardous air pollutants it shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA &112(2,) 40 CFR Part 63)) . §1 16. 112. Distance Limitations. The following facilities must satisfy the following distance criteria. (1 ) Lead smelters New lead smeltingplants shall be located at least 3,000 feet from any individual's residence where lead smelting-o-peration_E h~.ve not been conducted before Au usg t 31 . 1987 This subsection does not applv-to : 

### (A) a modification of a lead smeltingplant in operation on or before Aumust 31 . 1987; (B) a newlead smelti n1ant or modification of a olant with the capacity to produce 200.pounds or less of lead per hour: or (C) a lead smelting_plant that was located more than 3. 000feet fromthe nearest residence when the,..plant began operations.Texas Natural Resource Conservation Commission

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(2) Hazardous waste permits. Permits for hazardous waste management facilities shall not be issued if the facility is to be located in the vicinity of specified public access areas under the following circumstances. (A) No permit shall be issued for a new hazardous_waste

e_ landfill or

land treatment facility or an areal expansion of an existing facility if the boundary of the facility or expansion is to be located within 1 .000 feet of an established residence, church, school, day care center, surface water body used for a public drinking water supplv, or dedicated public park. _(B) No permit shall be issued for a new commercial hazardous waste management facility or the subsequent areal expansion of such a fac~" `y or unit of that facility if he boundary of the unit is to be located within 1/2 mile (2.640 feet) of an established residence. church. school, day care center, surface water body used for a .public drinking water supply, or dedicated public park.

, (C) For a subsequent areal expansion of a newcommercial hazardous waste management facility that is required to comply with subparagraph (B) ofthis paragraph. distances shall bemeasured froma residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park only if such structure water suJ2p1v or park was in place at the time the distance was certified for the original permitTexas Natural Resource Conservation Commission Page 56

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### Revised 2124198 (D) No permit shall be issued for a newcommercial hazardous waste management facility unless the applicant demonstrates that the facility will be operated so as to safeguard ard public health and welfare and protect physical property and the environment .

(E) The measurement ofdistances shall be taken toward an established residence church school day care center, surface water body used for a nublic drinking water sut»ly, or dedicated public park that is in use when the permit application is filed with the commission. The restrictions imposed by subparagraphs (A) - (C) of this paragraph do not apply to a resi dence, church. school day care center, surface water body used for a public drinking water supply, or a dedicated public park located within the boundaries of a commercial hazardous waste managem e nt facility, or property owned by the permit applicant. (F) The measurement of distances shall be taken froma perimeter around the proposed hazardous waste management unit The perimeter shall be no more than 75 feet fromthe edge of the proposed hazardous waste managementunit. §116. 114. Application Review Schedule. (a) Reviewschedule The executive director shall reviewpermit applications in accordance with the following

.Texas Natural Resource Conservation Commission

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(1) Notice of completion or deficiency. The executive director shall mail written notification informing the applicant that the application is complete or that it is deficient within 90days of receipt of the application for a newpermit, or amendment to a permit or special permit. (A If the application is deficient, the notification must state: Ci)_the_additional information reauired: and (ii) the intent of the executive director to void the application if information for a complete application is not submitted. (B) Additional information may be requested within 60days of receipt of the information provided in response to the deficiency notification.

(2) Decision to approve or disapprove the application. The executive director shall mail written notice to the applicant ofhis decision to approve or not approve the application. If the applicant has provided public notification as required by the executive director, and no requests for public hearingor public meeting on the proposed facility have been received the executive director shall send noti ce

within:(A,) 180 days of receipt of a completed permit application: orTexas Natural Resource Conservation Commission

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(

_B) 150 days of receipt of a permit amendment or special permit amendment . (3) Refund of permit fee. (A) If the time limits provided in this section to process an application are exceeded. the applicant ma a~peal in writing to the executive director for a refund of th e oermit fee. (B) The permit fee shall be reimbursed if it is determined by the executive director that the specified period was exceeded without good cause. as provided in Texas Civil Statutes, Article 6252-13b.1, §3. (b) Voiding of deficient -application. (_1) An applicant shall make a good faith effort to submit in a timely manner, adeauate information which demonstrates that the requirements for obtaining a vermit or permit amendment are met in response to any deficiency notification issued by the executive director under the nrovisions of this section or ~116. 131 of this title (relating to Public Notification Requirements)-

(2) If an applicant fails to make sucll, .good faith effort the executive di rector shall void the appl ication and notify the applicant. If the a nlication is resubmitted within_six months ofthe from the reauirements of ~116 140 ofthis title (relating to A~plicaTexas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 &116.115. General and Special Conditions. Page 59

(a) General and special conditions Permits special permits standard permits and exemptions may contain general and special conditions. (b) General conditions Holders of permits special permits. standard permits, and exemptions shall comply with the following_

(1) the general conditions contained in the permit document if issued or amended prior to August 16. 1994: or

(2) the following_eeneral conditions if the permit or amendment is issued or amended on or after August 16 1994 regardless of whether they are specifically stated within the permit document . (A) Voiding of permit. A permit or permit amendment under this chapter is automatically void if the permit holder does one of the following_ G,) fails to begin construction within 18 months of date of issuance. The executive director may grant a one-time 18-month extension to the date to begin construction:Texas Natural Resource Conservation Commission

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(ii) discontinues construction for more than 18 consecutive months prior to completion: or (iii) fails to complete construction within a reasonable time. (B) Report of construction ,Ts The permit holder shall report start of construction construction interruptions exceeding 45 days, and comnletion of construction. The report shall be given to the appropriate regional office of the commission not later than 15 worki ng days after occurrence of the event.(C) Start-up notification. (i) Thepermit holder shall notify the appropriate air nrosramreeional office ofthe commission prior to the commencement of operations of the facilities authorized by the permit The notification must be made in such a manner as to allowrenresentative of the commission to be present at the commencement of operations.

. (,ii) The permit holder shall..provide a separate notification for the commencement of operations for each unit of phased construction which may invol ve a series of units commencing operations at different timesTexas Natural Resource Conservation Commission

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If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and proc.edures. (ii) All sampling and testing procedures must be approved by the executive director and coordinated with the re,gional representatives of the commission. (iii) The permit holder is also responsible for providing sampling facilities and conducting the samplingoperations or contracting with an independent sampling consultant. (E) Equivalency of methods. The permit holder must demonstrate or otherwisejustify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit . Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit. (F) Recordkee~in.g. The permit holder shall :Texas Natural Resource Conservation Commission Page 62

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### Revised 2/24/98 (i) maintain a copy of the permit along with information and data

~ufficient to demonstrate compliance with the permit including production records and operating hours; (ii) keep all records reduired by this paragraph in a file at the plant site. If however, the facility normall y operates unattended records shall be maintained at the nearest staffed location within Texas specified in the application: (iii) make the records available at the request of personnel fromthe commission or any air pollution control programhaving jurisdiction. Gv) comply with any additional recordkeel2ing requirements specified in special conditions attached to the permit: and (v_) retain information in the file for at least two years followin$ the date that the information or data is obtained. ((i) Maximumallowable emission rates The total emissions o f air contaminants fromany ofthe sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources Maximum Allowable Emission Rates."Texas Natural Resource Conservation Commission

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### Page 63

(H) Maintenance of emission control The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working .~order and operating properly during normal facility operations. The permit holder shall provide notification for upsets and maintenance in accordance with U01 .6 and U01 .7 of this title (relating to Upset Reporting and Recordkeeping Requirements-, and Maintenance Startup and Shutdown Reporting Recordkeel2ine and Operational Requirements) . (I) Compliance with rules. (i Acceptance of a .permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules. regulations. and orders of the commission issued in conformity with the TCAAand the conditions precedent to the granting of the permit. (ii) If more than one state or federal rule or regulation or permit condition are applicable the most stringent limit or condition shall be the standard by which compliance shall be demonstrated. (iii) Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants. including compliance with the permit .Texas Natural Resource Conservation Commission

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(c)_Special conditions The holders of permits special permits, standard permits. and exemptions shall comply .,wih all special conditions contained in the permit document . Page 64

(1) Special conditions may be attached to a permit that are more restrictive than the reauirements of Title 30 ofthe Texas Administrative Code.

(2) Special condition for written approval . (A) The executive director may re~uire as a special condition that the permit holder obtain written approval before constructing a source under: (i) a standard permit under Subchapter F of this chapter (relatin Standard Permits) : or (H) an exe=tion under Chapter 106 of this title (relating to Exemptions fromPermitting) . (B) Such written approval may berequired if the executive director specifically finds that an increase of a ,particular pollutant could eitherTexas Natural Resource Conservation Commission Page 65

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 (i) result in a significant impact on the air environment: or (ii) cause the facility to become subiect to review under : (I) Subchapter C of this chapter relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA &112(g) 40 CFRPart 63))-, or (II) the provisions in §116.150 and U16.151 of this title (relating to Nonattainment Review) and §.§116.160-116.163 of this title (relating to Prevention of Sienificant Deterioration Review) . 

### §116.116. Changes to Facilities. (a) Representations and conditions Conditions upon which a permit special permit or special exemption are issued include:

(1) representations with regard to construction plans and operation procedures in an application for a permit, special permit. or special exemption: andTexas Natural Resource Conservation Commission

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(2) any general and special conditions attached to the permit special permit or special exemption itself. (b)_P ermit amendments. (1) Except as provided in subsection (g) ofthis section the permit holder shall not vary fromany representation or permit condition without obtainingapermit amendment if the chan e will cause: (_A) a change in the method of control of emissions: (B a change in the character ofthe emissions: or (C) an increase in the emission rate of any air contaminant . (2) Anperson who reQuests permit amendments must receive prior approval by the executive director or the commission Applications must be submitted with a comDleted FormPI-1 and are subject to the requirements of 4116.111 ofthis title (relating to General Annlication) .

(3) An~ person who aanlies for an amendment to a permit that concerns a_ determination for constructed or reconstructed sources under Subchapter C of this chanter (relatin"Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification 

### Rule Log No. 98001-116-AI Revised 2/24/98 Page 67

Hazardous Air Pollutants: Reg,ulations Governing Constructed or Reconstructed Major Sources (FCAA §112(e) 40 CFR Part 63)) shall comply with the provisions in H116.130-116.134. 116.136. and 116.137 of this title (relating to Public Notification and Comment Procedures) . (c) Permit alteration. _(1) Apermit alteration is: (A) a decrease in allowable emissions: or

(B) any thange froma representation in an application, general condition, or special condition in a permit that does not cause: (i a change in the method of control of emissions: (ii) a change in the character of emissions: or 

### (iii) an increase in theemission rate of any air contaminant.Texas Natural Resource Conservation Commission

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(2) Requests for permit alterations that must receive prior approval by the - executive director are those that : (A) result in an increase in off-property concentrations of air contaminants: (B) involve a change in permit conditions: or (C) affect facility or control equipment performance. (3) The executive director shall be notified in writina of all other permit alterations not specified in paragraph 2) of this subsection.

(4) Arequest for .permit alteration shall include information sufficient to demonstrate that the change does not interfere with the owner or operator's previous demonstrations ofcomDliance with the requirements of &116 111(3) of this title.

(5) Permit alterations are not su>Zject to the requirements §116 111(3) of this tit1e. (d ) Exe=tion under Chapter 106 of this title (relating to ExemAtions fromPermitting) in lieu of permit amendment or alteration.Texas Natural Resource Conservation Commission

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(1) A permit amendment or alteration is not required if the changes to the permitted facility q.ualify for an exemption under Chapter 106 of this title unless prohibited by .permit condition as provided in ~116.115 of this title (relating to General and Special Conditions) .

(2) All exempted changes to a permitted facility shall be incorporated into that facility's oermit when the permit is amended or renewed. (e) Changes o qualified facilities. (1) Notwithstandingany other subsection of this section a phvsical or operational change may be made to a qualified facilitv if it can be determined that the change does not result in: (A) a net increase in allowable emissions of any air contami _n_ant ; and (B) the emission of any air contaminant not previously emitted (2) In making the determination in paragraph (1) of this subsection the effect on emissions of the following shall be considered: (A) any air pollution control method applied to the qualified facilitX . ;Texas Natural Resource Conservation Commission

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(_B) any decreases in allowable emissions fromother qualified facilities at the same commission air aualitX account number that have received a 12reconstruction permit or permit amendment no earlier than 120 months before the change will occur: and (C any decrease in actual emissions fromother qualified facilities at the same commission air quality account number that are not included in subparagraph (B) of this oaraeranh.

(3) The determination in paragraph (1) of this subsection shall be based on the allowable emissions for air contaminant categ_qries and any allowable emissions for indivi dual compounds If a physical or operational change would result in emissions.of a air contaminant category com

.pound above the allowable emissions for that air contaminant cateeorv or comnound. the am ount above the allowable emissions must be offset b~n equivalent decrease in emissions at the same facility or a different facility. In making this offset the following anDlies. (A) The offset shall be based on the same time neriods (e 2-_:___ . hhomr-Iv-and annual rates) as the allowable emissions for the facility at which the chan~e will occur. (B) Emissions of different compounds within the same air contaminant category may be interchanged.Texas Natural Resource Conservation Commission

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(C) For allowable emissions for individual compounds, any interchange e~shall ad-just the emission rates for the different compounds in accordance with the ratio of the effects screenin2 levels of the compounds. (_D) For allowable emissions for air contaminant categories. interchanges shall use the unad-justed emission rates for the different compounds. (E) The effects screening level shall be determined by the executive director. (F) An air contaminant category is agroup of related compounds, such as volatile organic compounds. particulate matter, nitrogen oxides. and sulfur compounds .

,(4) Persons making changes to qualified facilities under this subsection shall comply with the applicable requirements of &116.117 ofthis title (relating to Documentation and Notification of Changes to Qualified Facilities) and & 116.118 of this title (relating to Pre-change Qualification) .

(5) As used in this subsection. the term"physical and operational change" does not include: (A) construction of a new facilitv~-orTexas Natural Resource Conservation Commission

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(B) changes to procedures regarding _monitoring determination of emissions and recordkeeFing_that are required by a permit.

(6) Additional air pollution control methods may be implemented for the purpose o f makinQ*a facility a qualified facility. The implementation of any additional control methods shall be subject to the requirements of this ch_apter. The owner or operator shall : (A) utilize additional control methods that are as effective as best available control technology (BACT) required at the time the additional control methods are implemented, or (B) demonstrate that the additional control methods although not as effective as BACT were implemented to comply with a law rule order permit or imnleinented to resolve a documented citizen coml2laint .

(

_7) For purposes ofthis subsection and 4116.117 of this title. the followine subparagraphs al2g!y-

. (A Intra_plant trading means the consideration ofdecreases in allowable and actual emissions from other qualified facilities in accordance with 12aragral2h (2) ofthis subsection.Texas Natural Resource Conservation Commission

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### Rule Log No. 98001-116-AI Revised 2/24/98 Page 73

(B) The allowable emissions fromfacilities that were never constructed shall not be used in intraplant trading. (C) The decreases in allowable and actual emissions shall be based on emission rates for the same time periods (e .g. . hourly and annual rates) as the allowable emissions for the facility at which the chan,ge will occur and for which an intraplant trade is desired. (D) Actual emissions shall be based on data that is representative of the emissions actually achieved froma facility during the relevant time period e .g. . hourly or annual rate),

j81 The existing level of control may not be lessened for a qualified facility. (f) Use of credits. Notwithstanding any other subsection of this section. discrete emission reduction credits may be used to exceed permit allowables as described in &101 .29(d)(41(v) of this title relating to Emission Credit Banking and Trading) if all applicable conditions of &101 .29 ofthis title are met This subsection does not authorize any physical changes to a facility. §116.117 Documentation and Notification ofChanges to Qualified Facilities (a) Persons making changes under 4116.116(e) ofthis title (relating to Changes to Facilities) shall maintain documentation at the plant site demonstrating that the changes satisfy &116.116(e) of thisTexas Natural Resource Conservation Commission

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### Rule Log No. 98001-116-AI Revised 2/24/98 Page 74

title. If the plant site is unmanned the regional manager may authorize an alternative site to maintain the documentation The documentation shall be made available to renresentatives of the com mission upon request The documentation shall include:

(1 quantification of all emission increases and decreases associated with the physical or operational change:

(2 a description of the physical or operational change (3) a description of any.equipment being installed. a (4) sufficient information as necessary to showthat the project will comply with_ § 116. 150 and 4116.151 of this title (relating to Nonattainment Review) and 4§116.160-116 163 ofthis title (relatin g to Prevention of Significant Deterioration Review) and with Subchapter C of this cha er (relating _to Hazardous Air Pollutants: Regulations Governing.Constructed or Reconstructed Major_ 

### Sources (FCAA &112(,g,) 40 CFRPart 63)) . (b) Persons making such changes to,!Qualified facilities shall comnlv with the following notification requirements.Texas Natural Resource Conservation Commission Page 75

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(1) Annual report. For changes to qualified facilities when there is no intraplant trading under & 116.116(e)(2) of this title, an annual report shall be submitted to the appropriate regional office of the commission by August 1 of each year . The report shall include all changes made under §116 116(e) during the immediately preceding annual period July 1-June 30 This reporting period and the due date may be changed with the agreement of the commission's regional office. The annual report shall contain a PI-E formfor each change. The report need not include changes previously submitted by PI-E formto the commission under paragraphs (2 or 3) of this subsection or which have been_.incoroorated into the r)ermit for the facility.

(2) Post-change notification. Post-change notification shall be required for changes to qualified faci lities for which there is intraplant trading below the reportable limit. The notification shall be submitted on a PI-E formto the commission's New Source Review

Permits Division within 30 days after the change occurs.

(3) Pre-change notification only. Pre-change notification shall be required if a physical or operational change at a qualified facility will affect compliance with a permit special condition. The notice shall be made to the commission prior to the change. It shall identify the affected special condition and indicate the change needed or the desire to remove the special condition fromthe permit. The permit holder is relieved fromcomplying with the permit special condition upon the filing of the notice, provided the change complies with 4116.116(e) of this title.Texas Natural Resource Conservation Commission Page 76

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### Revised 2124198

(4) Pre chan2e notification and approval Pre-change notification shall be reauired for changes to qualified facilities for which there is intraplant trading above the reportable limit. The notification of the change shall be submitted on a PI-E formto the commission's New Source Review Permits Division before the change may occur The change may occur after the receipt of written notification fromthe commission that there are no objections. or 45 days after the PI-E is received by the commission whichever occurs first .

(5) Reportable limit The executive director shall establish reportable limits. A revo_ rtable limit is either :

() an emission rate that is adjusted based on a factor that accounts for a ratio ofthe effects screening levels of the different compounds and the difference in location of emissions involved in an intraplant trade: or (B) an emission rate that results in a sum total of modeled ground level concent ration for the account that shall not exceed two times the effects screening level .

~c) For facilities that have received a preconstruction permit all changes fo r which the notification procedure of subsection (b) of this section has been used shall be incorporated into the permit when the permit is amended or renewed.Texas Natural Resource Conservation Commission

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 (d) Nothing in this section shall limit the applicability of any federal requirement.

&116.118. Pre-change Qualification. Page 77

La If either of the following conditions exists it will be necessary to establish that a facility is a qualified facility before a physical or operational change may be made under the notification procedure of § 116. 117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities) : (1_) the facility is a qualified facility on the basis of best available control technology and the reQuirement for the facility type has not been previously established by the executive director: or '

(2) the facility does not have allowable emissions established for an air contaminant relevant to the change in a maximumallowable emissions rate table. PI-8form . or PI-E form

. (b) The ore-change

qualification shall be made by submitting a PI-E formto the commission's New Source ReviewPermits Division The facility shall be qualified in accordance with the information contained in the PI-E formafter receipt of written notification fromthe commission that there are no objections. or 45 days after the PI-E formis received by the commission. whichever occurs first The pre-change qualification may be submitted at the same time as a pre-changeTexas Natural Resource Conservation Commission

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notification under &116 117(b) of this title or at any other time prior to making a change to a qualified 

### facilitv .Texas Natural Resource Conservation Commission Page 79

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### SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS COMPLIANCE HISTORY §§116.120-116.126

STATUTORY AUTHORITY. The newsections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose ofthe TCAA and approve all general policy ofthe commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implPrr^nt Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116.120

. Applicability,

As part of the review

of a construction permit. amendment, or renewal : (1) The executive director shall compile a compliance history for:Texas Natural Resource Conservation Commission

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(A) the existing site when the application is for a newpermit amendment, or renewal at the existing site:

Ll a site with similar facilities if any, owned or operated by the applicant in Texas when the application is for a new facility at a new

site The commission mav lire the applicant to indicate which facilities thea12nlicant considers to be similar .

(2) The applicant shall provide the commission with a compliance historv for sites with similar facilities if any. owned or operated by the applicant in other states when:

A the a~~~lication is for a new facility at a new

site: and (B the a12plicant does not own or operate similar facilities in Texas.

L3 If the U12licant has no compliance history in the United States the aDplicant shall provide the commission with a compliance history for any similar facilities owned or onerated by: (A) a person who is presently an officer, director or agent ofthe apnlicant: (,B) a parent corporation subsidiary, or predecessor in interest of the applicant :Texas Natural Resource Conservation Commission

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(C) one who owns 20%or more of the applicant, whether directly, aa shareholder partner beneficiary, or otherwise: or (D) one who controls the applicant or has the ability to direct the conduct ~of the applicant . 

### 4116.121 . Exemptions. The compliance history is not required if the total increased actual emissions of any specific substance (e 2benzene arsenic etc ) at the site will be accomann ied bY greater than a 1 .1 to 1 reduction of the same specific substance at the site. §116.122. Contents of Compliance History . (a) The compliance history shall include all of the following compliance events and associated information involving the facility that is the subject of the permit application:

(1) for Texas facilities: (A) criminal convictions known to the commission and civil orders judgments. and decrees identified by statingjTexas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 (i) the style ofthe case: (ii) the tribunal issuing the conviction or judgment, (iii) the docket number and the date of action: and (iv) the general nature ofthe alleged violation: (B) administrative enforcement orders identified by statin~:

i th name nr style ofaction: (ii) the agency issuing; the order: (iii) the docket number and the date of the order: and (iv) the general nature of the alleged violation: (C compliance proceedings identified bv stating: Page 82



### (,i) the name or style of action:Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 (ii) the general nature ofthe alleeed violation:

(2)_ for United States facilities outside Texas: (A) criminal convictions and civiljudgments identified by stating_ (i) the style of the case: _(ii) the tribunal issuing the conviction orjudgment : (iii) the docket numb,-Y .and date ofaction: and (iv) the general nature ofthe alleged violation: (B) administrative enforcement orders identified by stating: (i) the name or style of action: _(ii) the agency issuing the order : Page 83

(iii) the docket number and the date ofthe order : andTexas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2124198 (iv) the general nature of the alleeed violation: (C) for notices of violation issued by the EPA: (i) th e name of the action: (ii) the EPA identification number and date of notice: and 

### (iii) the general nature of the alleged violation. Page 84

(b) Aviolation of fugitive emission monitoring-and recordkeeFin,~rec~uirements imposed either by 8101 20(1) and (2) of this title (relating to Compliance with Environmental Protection Agency Standards) or state implementation12lan requirements apl2licable to major sources in nonattainment areas shall not be included in the compliance history where:

(1) the violation occurred after the effective date ofthis rule has been the subiect of a commission administrative enforcement action and the commission classified the violation as not bein~ subject to compliance history review : or (2) the violation occurred during _the fiveyears preceding ,the effective date of this rule and has been the su~ject of a commission administrative enforcement action in which:Texas Natural Resource Conservation Commission

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(A) the commission did not classify the violation as either major seriousness or maj_or impact for the nurpose of administrative review : and (B) the commission assessed a total administrative penalty of less than $20.000 for the violation. (c) The commission may request an analysis of the significance of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application-The commission reduest shall list specific compliance events requiring such an analvsis. §1 16.123. Effective Dates. (a) The requirements under &&116. 120-116. 126 of this title (relating to Comnliance Historv) apply only to applications filed on or after December 9. 1992. (b) For applications filed: (1) before June 1 1993 neither the commission nor the applicant is required to include compliance events occurring before June 1 . 1988:Texas Natural Resource Conservation Commission Page 86

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### Revised 2124/98

(2) on or after June 1 1993 neither the commission nor the applicant is required to include compliance events occurring more than five years prior to the date on which the application is filed. 4116.124. Public Notice of Compliance History. When public notice is required under § 116. 131 of this title (relating to Public Notification Requirements), the applicant shall include the following statement in the notice: "The facility's compliance file ifany exists is available for public reviewin the regional office of the Texas Natural Resource Conservation Commission." §116. 125. Preservation of Existing Rights and Procedures. Nothing in this subchapter (concerning Compliance History) shall : (1_) diminish the rights of any a~rty in a contested case hearing to raise anv issue authorized by Texas Health and Safety Code. U82.05181c) :

(2) diminish the rights of any person to request and obtain co=liance historv informati on fromthe commission:Texas Natural Resource Conservation Commission

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(3) limit the authority ofthe commission to request and consider any other information that is relevant to the application under the law : or

41 create any right in third parties which did not exist before the effective date of this subchapter. 4116 126 Voidance of Permit Applications. If an applicant does not submit compliance history information within 180 days after written request fromthe executive director the commission will void the permit application The applicant shall also forfeit the fees associated with the permit application. A new perr- application shall be required for further consideration by the commission. 'Texas Natural Resource Conservation Commission Page 88

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### SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS PUBLIC NOTIFICATIONANDCOMMENT PROCEDURES

§§116.130-116.134,116 .136,116.137

STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, §382.0 .'_7, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 

### §116.130. Applicability. (a) Any person who applies for a new permit or permit renewal shall be required to publish notice of the intent to construct a new facility or modify an existing facility or renewa permit. The notice shall be published in a newspaper in general circulation in the municipality where the facility isTexas Natural Resource Conservation Commission Page 89

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24198 located or to be located. Any person who applies for a permit amendment shall provide public notification as required by the executive director . (b) Upon written request by the owner or operator of a facility which previously has received a permit or special permit fromthe commission [Texas Air Control Board], the executive director, or designated representative may exempt the relocation of such facility fromthe requirements of this section if there is no indication that operation ofthe facility at the proposed newlocation will significantly affect ambient air quality and no indication that operation of the facility at the proposed newlocation will cause a condition of air pollution. (c) Applications subject to the requirements of Subchapter C of this chapter (relati ngto Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA §112(g,) 40 CFR Part 63),) . whether for construction or reconstruction. are subject to the public notice requirements of this section. §116.131 . Public Notification Requirements. (a) Notification by applicant. Ifthe application is complete, for any permit subject to the FCAA [Federal Clean Air Act (FCAA)], Title 1, Part C or D, or to Title 40 Code of Federal Regulations (CFR), Part 51 .165(b), the executive director shall state a preliminary determination to issue or deny the permit and require the applicant to conduct public notice of the proposedTexas Natural Resource Conservation Commission Page 90

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### Revised 2/24/98 construction. If an application is received for a permit not subject to the FCAA, Part C or D, or to 40 CFR51 .165(b), the executive director shall require the applicant to conduct public notice of the proposed construction. In all cases, public notice shall include the information specified in § 116.132 of this title (relating to Public Notice Format) and the applicant shall provide such notice using each ofthe methods specified in § 116.132 of this title. The executive director may specify that additional information needed to satisfy public notice requirements of 40 CFR §52.21 also be included in the notice published under [pursuant to] §116.132 of this title. (b) Availability of application for review . The executive director shall make the completed application (except sections relating to confidential information) and the preliminary analyses of the application completed prior to publication of the public notice available for public inspe^"mduring normal business hours at the commission's [Texas Air Control Board (TACB)] Austin office and at the appropriate commission [TACB] regional office in the region where construction is proposed throughout the comment period established in the notice published under [pursuant to] § 116.132 of this title [(relating to Public Notice Format)] . §116.132. Public Notice Format . (a) Publication in public notices section of newspaper. At the applicant's expense, notice of intent to obtain a permit to construct a facility, modify an existing facility, or to seek permit renewal reviewshall be published in the public notice section oftwo successive issues of a newspaper ofTexas Natural Resource Conservation Commission

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general circulation in the municipality in which the facility is located or is proposed to be located, or in the municipality nearest to the location or proposed location of the facility. The notice shall contain the following information:

(1) - (5) (No change.) (6) preliminary determination of the executive director to issue or not issue the permit (for permits subject to the FCAA [Federal Clean Air Act], Title 1, Part C or D, or to 40 Code of Federal Regulations 51 .165(b)) ;

°'~n

(7) location and availability of copies of the completed permit application ar" executive director's [Texas Air Control Board's (TACB's)] preliminary analyses;'



### (8) - (9) (No change.) (10) notification that a person who may be affected by emission of air contaminants fromthe facility is entitled to request a hearing in accordance with commission [TACB] rules; and

(11) name, address, and phone number ofthe appropriate commission [regional TACB] office to be contacted for further information.Texas Natural Resource Conservation Commission Page 92

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Construction or Modification Rule Log No. 98001-116-AI Revised 2124198 (b) Publication elsewhere in the newspaper . Another notice with a size of at least 96.8 square centimeters (15 square inches) and whose shortest dimension is at least 7.6 centimeters (three inches) shall be published in a prominent location elsewhere in the same issue of the newspaper and shall contain the information specified in subsection (a)(1)-(4) of this section and note that additional information is contained in the notice published under [pursuant to] subsection (a) of this section in the public notice section of the same issue. (c) Additional alternate language public notice. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education programas required by the Education Code, Chapter 29. Subchapter B [§21 .109], and 19 TAC &89.1205(a) [§89.2(a)] or if either school has waived out of such a required bilingual education programunder the provisions of 19TAC &89' .1205(~l [§89.2(g)] . Schools not governed by the provisions of 19 TAC M .120 5 [§89.2] shall not be considered in determining applicability of the requirements ofthis subsection. Each affected facility shall meet the following requirements.

(1) The applicant shall publish an additional notice at least once in each alternate language in which the bilingual education programis taught. Ifthe nearest elementary or middle school has waived out of the requirements of 19 TAC §89.1205(al [§89.2(a)] under 19 TAC §89.1205W [§89.2(g)], the notice shall be published in the alternate languages in which the bilingual education programwould have been taught had the school not waived out of the bilingual education program .Texas Natural Resource Conservation Commission Page 93

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### Revised 2/24/98

(2) - (8) (No change.) (d) Exemptions fromalternate language notification. Elementary or middle, schools that offer English as a second language under 19 TAC &89.1205(e) [§89.2(d)], and are not otherwise affected by 19 TAC ~89.1205(a) [§89.2(a)], will not trigger the requirements of subsection (c) of this section. §116.133. Sign Posting Requirements. (a) At the applicant's expense, a sign or signs shall be placed at the site of the proposed facility declaring the filing of an application for a permit and stating the manner in which the commission [Texas Air Control Board (TACB)] may be contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements:

(1) - (4) (No change.) (5) signs shall include the words "Texas Natural Resource Conservation Commission" ["Texas Air Control Board"], and the address of the appropriate commission [TACB] regional office in no less than one-inch boldface capital lettering and 3/4-inch boldface lower case lettering; andTexas Natural Resource Conservation Commission Page 94

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### Revised 2/24/98

(6) signs shall include the phone number of the appropriate commission [TACB regional] office in no less than two-inch boldface numbers. (b) (No change.) (c) Each sign placed at the site must be located within ten [10] feet of each (every) property line paralleling a street or other public thoroughfare. Signs must be visible fromthe street and spaced at.- not more than 1,500-foot intervals. Aminimum of one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare. The commission [TACB] may approve variations fromthese requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public. (d) The commission [TACB] may approve variations fromthe requirements of subsection (c) ofthis section if the applicant has demonstrated that it is not practical to comply with the specific requirements of subsection (c) of this section and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval fromthe commission [TACB] under this subsection must be received before posting signs for purposes of satisfying the requirements ofthis section. (e) (No change.)Texas Natural Resource Conservation Commission Page 95

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### Revised 2/24/98 (t) Alternate language sign posting. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bi! ;ngual education programas required by the Education Code, Chapter 29. Subchapter B [§21 .109], and 19 TAC §89.1205(a) [§89.2(a)] or if either school has waived out of such a required bilingual education programunder the provisions of 19 TAC &89.1205(g) [§89.2(g)] . Schools not governed by the provisions of 19 TAC H9.1205(a) [§89.2] shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements.

(1) The applicant shall post an additional sign in each alternate language in which the bilingual education programis taught. Ifthe nearest elementary or middle school has waived out of the requirements of 19 TAC§89.1205(a) [§89.2(a)] under 19 TAC §89.1205(g) [§89:2(g)], the alternate language signs shall be published in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program . 

### (2) - (4) (No change.) (g) Exemption from

alternate language sign posting. Elementary or middle schools that offer English as a second language under 19 TAC &89.1205(e) [§89.2(d)], and are not otherwise affected by 19TAC §89.1205(_a) [§89.2(a)], will not trigger the requirements of subsection (f) ofthis section.Texas Natural Resource Conservation Commission Page 96

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### Revised 2124198 §116.134

. Notification of Affected Agencies. When newspaper notices are published in accordance with § 116.132 of this title (relating to Public Notice Format), the permit applicant shall furnish a copy of such notices and date of publication to the commission [Texas Air Control Board (TACB)] in Austin; the EPA [United States Environmental Protection Agency] regional administrator in Dallas; all local air pollution control agencies with jurisdiction in the county in which the construction is to occur; and the air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions fromthe newor modified facility. Along with such notices furnished to the commission [TACB], the permit applicant shall certify that the signs required by §116.133 of this title (relating to Sign Posting Requirements) have been posted in accordance with the provisions ofthat section. §116.136. Public Conunent Procedures. (a) Comment period. Interested persons may submit written comments, including requests for public hearings under TCAA [under Texas Clean Air Act], §382.056, on the permit application and on the executive director's preliminary determination or analysis [decision to issue or not to issue the permit] . The public comment and timely hearing requests shall be processed under Chapter 55, Subchapter Bof this title (relating to Hearing Requests, Public Comment) . (b) (No change.)Texas Natural Resource Conservation Commission

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§116.137. Notification of Final Action by the Texas Natural Resource Conservation Commission

[Texas Air Control Board] . (a) - (b) (No change.)Texas Natural Resource Conservation Commission Page 98

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### Revised 2/24198 SUBCHAPTER B : NEW SOURCE REVIEW PERMTS PERMIT FEES §§116.140, 116.141, 116.143

STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 

### §116.140. Applicability. Any person who applies for a permit to construct a new facility or to modify an existing facility, or for an amendment to an existing permit under [pursuant to] § 116.110 of this title (relating to Applicability) shall remit, at the time of application for such permit, a fee based on the estimated capital cost ofthe project. The fee will be determined as set forth in §116.141 ofthis title (relating toTexas Natural Resource Conservation Commission Page 99

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 Determination of Fees) . Fees will not be charged for [operating permits,] permit alterations, amendments to special permits, [standard exemptions,] site approvals for permitted portable facilities, changes of ownership, or changes of location of permitted facilities. §116.141. Determination of Fees. (a) (No change.) (b) The following fee schedule may be used by a permit applicant to determine the fee to be remitted with a permit application.

(1) If the estimated capital cost of the project is less than $300,000or if the project consists of new

facilities controlled and operated directly by the federal government [for which an application is submitted after January 1, 1987,] and the federal regulations for Prevention of Significant Deterioration (PSD) Review do not apply, the fee is $450. The provisions of subsections (c) and (d) of this section do not apply to a project consisting of newfacilities controlled and operated directly by the federal government .

(2) (No change.)Texas Natural Resource Conservation Commission Page 100

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### Revised 2124198 (c) If the estimated capital cost of the project is less than $50million, the permit applicant shall include a certification that the estimated capital cost of the project is correct. Certification ofthe estimated capital cost of the project may be spot-checked and evaluated for reasonableness during permit processing. The reasonableness of project capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed as follows.

(1) Direct costs are as follows: (A) process and control equipment not previously owned by the applicant and not currently authorized under this chapter [permitted in Texas] ; (B) - (G) (No change.) (2) (No change.) (d) - (e) (No change.)Texas Natural Resource Conservation Commission Page 101

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### §116.143. Payment of Fees. All permit fees will be remitted in the formof a check or money order made payable to the Texas Natural Resource Conservation Commission or TNRCC [Texas Air Control Board (TACB)] and delivered with the application for permit or amendment to the TNRCC. P. O . Box 13088. MC 214. Austin. Texas 78711-3088 [TACB, 12124 Park 35 Circle, Austin, Texas 78753] . Required fees must be received before the agency will begin examination of the application.

(1) (No change.) (2) Return of fees. Fees must be paid at the time an application for a permit or amendment is submitted. If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, one-half of the fee will be refunded except that the entire fee will be refunded for any such application for which an exemption under Chapter 106 of this title (relating to Exemptions fromPermitting) [a standard exemption] is allowed. No fees will be refunded after a deficient application has been voided or after a permit or amendment has been issued by the agency.Texas Natural Resource Conservation Commission Page 102

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS PREVENTIONOF SIGNIFICANT DETERIORATION REVIEW §116.160, §116.161

STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit . §116.160. Prevention of Significant Deterioration Requirements. (a) Each proposed newmajor source or major modification in an attainment or unclassifiable area shall comply with the Prevention of Significant Deterioration (PSD) of Air Quality regulations promulgated by the EPA [United States Environmental Protection Agency (EPA)] in Title 40 Code of Federal Regulations (CFR) at 40 CFR 52.21 as amended June 3, 1993 (effective June 3, 1994) and theTexas Natural Resource Conservation Commission Page 103

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 Definitions for Protection of Visibility promulgated at 40 CFR51 .301, hereby incorporated by reference. (b) - (d) (No change.) §116.161. Source Located in an Attainment Area with a Greater Than De Minimis Impact . The commission [Texas Air Control Board] may not issue a permit to any newmajor stationary source or major modification located in an area designated as attainment or unclassifiable, for any National Ambient Air Quality Standard (NAAQS) under FCAA [pursuant to the Federal Clean Air Act], §107, if ambient air impacts fromthe proposed source would cause or contribute to a violation of any NAAQS. In order to obtain a permit, the source must reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to eliminate the predicted exceedances ofthe NAAQS. A major source or major modification will be considered to cause or contribute to a violation of a NAAQS when the emissions fromsuch source or modification would, at a minimum, exceed the de minimis impact levels specified in § 101 .1 [§ 116.10] of this title (relating to [General] Definitions) at any locality that is designated as nonattainment or is predicted to be nonattainment for the applicable standard.Texas Natural Resource Conservation Commission Page 104

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Construction or Modification Rule Log No. 98001-116-Al 

### Revised 2124198 SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS EMISSION REDUCTIONS: OFFSETS

§116.170, §116.174

STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAAand approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997.

The proposed amendments implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 

### §116.170. Applicability for Reduction Credits.

At the time of application for a permit in accordance with this chapter, any applicant who has effected air contaminant emission reductions may also apply to the executive director to use such emission reductions to offset emissions expected fromthe facility for which the permit is sought, provided that the following conditions are met.Texas Natural Resource Conservation Commission Page 105

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(1) The emission reductions are not required by any provision of the Texas State Implementation Plan as promulgated by the EPA [United States Environmental Protection Agency] in 40Code of Federal Regulations, Part 52, Subpart SS, nor by any other federal regulation under the FCAA [Federal Clean Air Act], as amended, such as New Source Performance Standards. Minimum offset ratios as specified in Table I of § 116.12 of this title (relating to Nonattainment Review Definitions) shall be used in areas designated as nonattainment areas.

(2) (No change.) (3) Emissions increases fromrocket engine and motor firing, and cleaning related to su "t tiring, at an existing or modified major source, shall be allowed to be offset by alternative or innovative means, provided the following conditions are met: ' (A) (No change.) (B) the source demonstrates to the satisfaction ofthe commission [Texas Air Control Board (TACB)] that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source;

(C) (No change.)Texas Natural Resource Conservation Commission Page 106

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### Revised 2/24198

(D) the source will comply with an alternative measure, imposed by the commission [TACB], designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the commission [TACB] may impose an emissions fee to be paid which shall be an amount no greater than 1 .5 times the average cost of stationary source control measures adopted in that area during the previous three years. §116.174. Determination by Executive Director ToAuthorize Reductions. The executive director may grant authority to a permit applicant to use prior emission reductions and emission reductions granted to the applicant by another entity (either public or private) in accordance with § 116.170ofthis title (relating to Applicability for Reduction Credits) if the commission [Texas Air Control Board] determines that the prior emission reductions have, in fact, occurred and, when considered with other emission reductions that may be required by the permit as well as contaminants that will be emitted by the new source, will result in compliance with § 116.150[(b)] of this title (relating to NewMajor Source or Major Modification in Ozone Nonattainment Areas [Required]), §116 151 of this title (relating to New Major Source or Maior Modification in Nonattainment Areas Other Than Ozone) . § 116.160 ofthis title (relating to Prevention of Significant Deterioration Requirements), and 11 6.1 62 [§116.152] of this title (relating to Evaluation of Air Quality Impacts), as applicable, in the area where the newsource is to be located. Prior as well as future emission reductions to be used as an offset shall be made conditions for granting authority to construct the proposed new source and shall be enforced.Texas Natural Resource Conservation Commission Page 107

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Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98 SUBCHAPTERC: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING

CONSTRUCTEDOR RECONSTRUCTEDMAJORSOURCES

(FCAA §112(G)) 40 CFR PART 63)

§§116.180-116.183

STATUTORY AUTHORITY. The newsections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implement Texas Health and Safety Code, §382.017, 'concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §116.180. Applicability- . (a) The provisions of this subchapter are intended to implement FCAA. § 112(g) . Modifications and 40 Code of Federal Regulations Part 63 Hazardous Air Pollutants: RegulationsTexas Natural Resource Conservation Commission

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### Rule Log No. 98001-116-AI Revised 2/24/98 Page 108

Governine Constructed or Reconstructed Major Sources Subpart B Requirements for Control Technology. For purposes of this subchapter-

(1) "Construct a major source" means the followiny: (A) to fabricate erect or install at any green field site a stationarv source or group of stationary sources which is located within a contiguous area and under common control and which emits or has the potential to emit ten tons per year of any hazardous air pollutant (HAP) or 25 tons per year of any combination of HAPs: (B) to fabricate erect or install at anxdeveloped site a new Drocess or production unit which in and of itselfemits or has the potential to emit ten tons .12~r_xear of any HAP or 2 tons per year of any combination of HAPs unless the,process or production unit satisfies clauses (i)- (vi) of this subparagraph. (i) all HAPs emitted by the rocess or production unit that would otherwise be controlled under the requirements of this subchapter will be controlled bv emission control eguinment which was previously installed at the same site as the process or production unit: (ii) either of the following re~. garding control of HAP emissions:Texas Natural Resource Conservation Commission Page 109

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al Revised 2/24/98 (1_) the executive director has determined within a period of five years prior to the fabrication erection or installation ofthe process or production unit that the existinQ emission control equipment represented best available control technology (BACT), lowest achievable emission rate (LAER) under Title 40Code of Federal Regulations (CFR) Part 51 or 52. toxics-best available control technology (T-BACT) or maximumachievable control technology (MACT) based on state air toxic rules for the category of pollutants which includes those HAPs to be emitted by the process or production unit-, or (Il) the executive director determines that the control of HAP emissions provided by the existing equipment will be equivalent to that level of control currently achieved by-other ~ . ontrolled similar sources (i e eauivalent to the level of control that would be provided by a current BACT LAER T-BACT or state air toxic rule MACT determination) : (iii) the executive director determines that the percent control efficiency for emissions of HAP fromall sources to be controlled by the existing control equipment will be equivalent to the percent control efficiency provided by the control equipment Prior to the inclusion of the newprocess or production unit: (iv) the executive director has provided notice and an opportunity for public comment concerning its determination that criteria in clauses (i)-(iii) of this subparagraph apply-Texas Natural Resource Conservation Commission

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and concernin2 the continued adequacy of anX .prior LAER BACT T-BACT. or state air toxic rule M ACT determination: (v) ifany commenter has asserted that a prior LAER BACT. TBACT or state air toxic rule MACT determination is no longer adequate the executive director has determined that the level of control required by that prior determination remains adequate. and (vi) any emission limitations work~ractice requirements. or other terms and conditions u,pon which the determinations in clauses (i)-(v) of this subparaeraDh bv the executive director are predicated will be construed by the executive director as applicable requirements under FCAA. 4504(a), ar,f', °ither have been incoroorated into any--existing permit issued under Chanter 122 of this title (relating _to Federal Operating Permits) for the affected facility or will be incorporated into such permit upon issuance.

(2) "Reconstruct a m~jor source" means the replacement of components tan existing process or production unit that in and of itself emits or has the potential to emit ten tons 12er year of any HAPor 25 tons per year of aU combination of HAP whenever: (A) the fixed capital cost ofthe newcomponents exceeds 50%of the fixed capital cost that would be required to construct a com~arable 12rocess or production unit: andTexas Natural Resource Conservation Commission

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(B) it is technically and economically feasible for the reconstructed major source to meet the applicable MACT emission limitation for new sources established under this subchapter . (b) The requirements of this subchapter a12plv to an owner or operator who constructs or reconstructs a major source of HAPs after June 29 1998 the effective date of §112(g),(2)(B), and the approval date of a federal operating permit programin Texas or localjurisdiction in which the major source is or would be located unless the major source in question has been specifically regulated or exempted fromregulation under a standard issued under the FCAA. ~- 112(d)

. (h), or (j) and incorporated in another subpart of Part 63 or the owner or operator of such major source has received all necessary air_quality perm="- for such construction or reconstruction project before the effective date of §1 12(,g,)(2)(B) Administratively complete applications submitted prior toJune29. 1998. and prior to ap .proval of a federal operating permit programin Texas are not subject to the requirements ofthis subchapter. (c,) Sources subject to the requirements of this subchapter are not eligible to use a standard permit under Subchapter F of this chapter (relating to Standard Permits) unless the terms and conditions ofthe specific standard permit meet the requirements ofthis subchapter.Texas Natural Resource Conservation Commission

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 §1 16.181 . Exclusions. Page 112

The requirements of this subchapter do not apply to electric utility steamgenerating units unless and until such time as these units are added to the source category list under FCAA. ~112(c)(5) . (b) The requirements of this subchanter do not a12121v to stationary sources that are within a source category that has been deleted fromthe source category list under FCAA. 5112(c)(9)

. (c) The requirements of this subchapter do not apply to research and development activities, as defined in 40Code of Federal Regulations . 03.41 . (d) Nothing in this subchapter shall prevent a state or local agency fromimposine more stringent requirements than those contained in this subchapter. &116182 Application. Consistent with the requirements of 40 Code of Federal Regulations 03.43 (concernine maximumachievable control technology determinations for constructed and reconstructed major sources), the owner or operator of a new facility (ma,-ior source) or the reconstruction of an existing facility (as defined in §116. 15 of this title (relating to Section 112(g,) Definitions)) shall submit a permit application as described in &116 110 ofthis title (relating to Applicability) for those sources subiect toTexas Natural Resource Conservation Commission

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an approved federal operating permit programunder Chapter 122 of this title (relating to Federal Operating Permits) . §116. 183. Public Notice Requirements. If the proposed new

facility or reconstructed facility is a major source for hazardous air pollutants it shall comply with the .public notice requirements contained in &116.130of this title (relating to

Applicability) .Texas Natural Resource Conservation Commission Page 114

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 

### SUBCHAPTER D: PERMIT RENEWALS §§116.310-116.314

STATUTORY AUTHORITY. The newsections are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAAand approve all general policy of the commission. The reviewof the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed new

sections implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. §1 16. 310. Notification of Permit Holder. The executive director shall provide written notice to the permit holder that the permit is scheduled for review

. Such notice must be provided by certified or registered United States mail no less than 18 0days 12rior to the expiration of the permit The notice must specify the procedure for filing an application for reviewand the information to be included in the application Under Texas Civil Statutes Article 9027 the commission shall exempt a permit holder fromany increased fee or otherTexas Natural Resource Conservation Commission

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 penalty for failure to renewthe .permit if the individual establishes, to the satisfaction of the Page 115

commission that the failure to renewin a timely manner occurred because the individual was on active duty in the United States Armed Forces servine outside the State of Texas.

&116.311. Permit Renewal Application. (a) In order to be granted a permit renewal the permit holder shall submit information in support of the application which demonstrates that:

(1) the facility is being operated in accordance with all requirements and conditions of the existing permit including representations ;- `, ° application for permit to construct and subsequent amendments and any_previously _granted renewal unless otherwise authorized for a qualified facility-,

(2) the facility meets the requirements of any applicable New Source Performance Standards as listed under Title 40 Code of Federal Regulations (CFk) Part 60 . promulgated by the EPA under the authority of the FCAA . &111 . as amended: (3) the facility meets the requirements of any applicable emission standard for hazardous air pollutants as listed under Title 40CFR Part 61 promulgated by EPA under the authority of the FCAA. &112. as amended: andTexas Natural Resource Conservation Commission

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(4) the facility meets the requirements of any applicable maximumachievable control technology standard as listed under Chapter 113 Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Cate¢ories (FCAA &112. 40 CFR 63)) .

(5) the facility meets the requirements of Subchapter C of this chapter (relatinc to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA ~1121g,L40 CFR Part 63)) . (b) In addition to the requirements in subsection (a) of this section if the commission determines it necessary to avoid.a. condition of air pollution or to ensure compliance with_ otherwise anDlicable federal or state air quality control requirr, :1ents, then:

(1) the applicant may be required to submit additional information regarding the emissions fromthe facility and their impacts on the surrounding area: and

(2 ) the commission shall impose as .a condition for renewal only those requirements t executive director determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. (c) A compliance history reviewmust be conducted in accordance with &4116 . 120-116.126 of this title (relating to Compliance History) . The renewal application must demonstrate that the facility . isTexas Natural Resource Conservation Commission Page 117

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or has been in substantial compliance with the provisions of the TCAA and the terms of the existing permit Failure to demonstrate substantial compliance shall result in the renewal not being granted. If it is found that violations in the compliance history constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process including failure to make a timely and substantial attempt to correct the violations the renewal shall be denied. If a contested case hearing has not been called the executive director must notify the applicant of the intent to recommend denial and state the basis of the findings The applicant will be given an opportunity t respond to the notice If the findings reflect a pattern of disregard for applicable regulations which do not warrant denial additional conditions may be placed in the permit. (d) An application for renewal must be submit -4 within 90 days 12,rior to expiration of the permit or the permit will expire The executive director may extend the time period for submittingan application. (e) Any permit issued: (1) _before December 1 1991 is subiect for review15 years after the date of issuance: (2) on or after December 1 1991 is subject for reviewevery ten years after the date of issuance.Texas Natural Resource Conservation Commission

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### Rule Log No. 98001-116-AI Revised 2/24/98 Page 118

(3) at nonfederal sources on or after December 1 . 1991 . may, for cause, contain a provision requiring renewal between five and ten years. §116 . 312. Public Notification and Comment Procedures. (a) The executive director shall mail a written notice to the permit holder within 30davs after an application is complete The notice will confirmreceipt of the application and shall reauire the applicant to provide public notice of the application for permit renewal in accordance with SubchaDter B of this chapter (relating to New Source Review

Permits) . b) The sign headin of this title (relating to Sign Posting Requirements) shall read "PROPOSED RENEWAL OF AIR QUALITY PERMIT." §116. 313. Renewal A,pplication Fees. (a) The fee for renewal is based on the total annual allowable emissions fromthe permitted facility to be renewed according to the followingtable.Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 RENEWAL FEE TABLE*



### X = T OTAL ALLOWABLE (TONS/YEAR) X_<5 5 < X<24 24< X s 99 99< X < 994 X > 994_ Minimumfee: $300 Maximumfee: $10.000 Page 119

INCREMENTAL BASE FEE FEE 300 - $3 0 0 $35/to n 965 25/ton $2, 840 8/ton



### - $10 ,000

* To calculate the fee multiply the number oftons in excess of the lower limit of the appropriate category. by the incremental fee, then add this amount to the base fee. For c ,;~3mple, iftotal emissions of all air contaminants are 50 tons per vear, the total fee would be $1 .615 (base fee of $965, plus incremental fee of $25 x 26tons or $650) . (b) Fees are due and payable at the time the renewal application is filed No fee will be accepted before the permit holder has been notified by the commission that the permit is scheduled for_ review . All permit reviewfees shall be remitted by check or money order payable to the Texas Natural Resource Conservation Commission (TNRCC) and mailed to the TNRCC. P.O. Box 13088. MC 214,Texas Natural Resource Conservation Commission

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2124198 Austin Texas 78711 -3088 . Reauired fees must be received before the agency will consider an 

### application to be complete. §116.314. ReviewSchedule. Page 120

,(a) Renewal of permit The executive director shall renewa permit and notify the Permit holder in writing if it is determined that the facility meets the requirements of this subchapter . (b) Denial of renewal Prior to denial the executive director shall provide notice to the Permit holder with a report which describes the basis for denial .

(l) Ifdenial is based on failure to meet the requirements of &116. 311 (a) or (b) of this title (rel ating to Permit Renewal Application), the report shall establish a schedule for compliance with the renewal requirements . (A) The report shall be forwarded to the permit holder no later than 180 days after the commission receives a comPleted application. (,B) The permit shall be renewed ifthe requirements are met according to the schedule specified in the report. The executive director shall notify the nermit holder inwritine of the permit renewal .Texas Natural Resource Conservation Commission Page 121

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(2) If denial is based on failure to maintain substantial compliance with the TCAA or the terms of the existing aermit under ~116 311(c) of this title the renewal denial shall be final . The executive director shall notify the permit holder in writing of the denial . (c) Contested case hearing. After failure to satisfy the commission requirements for corrective action by the deadline specified in the executive director's report the applicant shall showcause in __a contested case proceeding why the permit should not expire. The proceeding will be conducted under . the APA and Chapters 1 55 and 80 of this title (relating to Purpose of Rules. General Provisions: Request for Contested Case Hearings. Public Comment : and Contested Case Hearings) . (d) Effective date of existing permit An existing permit shall remain P ffective: (1) until it is renewed: (2_) until the deadline specified in the executive director's report to the permit holder: (3) durine the course of a contested case hearing , ifthe hearing extends beyond the expiration date: or

(4) until a date specified in any commission order entered following a contested case hearing.Texas Natural Resource Conservation Commission Page 122

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### Revised 2124/98 SUBCHAPTER F : STANDARD PERMITS



### §§116.610,116.611,116.614,116.615,116.617,116 .620,116.621

STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose ofthe TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 

### §116.610. Applicability. (a) Under the TCAA [Pursuant to the Texas Clean Air Act (TCAA)], §382.051, a project which meets the requirements for a standard permit listed in this subchapter is hereby entitled to the standard permit; provided the following conditions listed in this section are met. For the purposes of this subchapter, project means the construction or modification of a facility or a group of facilities submitted under the same registration claim .Texas Natural Resource Conservation Commission Page 123

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(1) - (2) (No change.) (3) the proposed project must comply with the applicable provisions of the FCAA [Federal Clean Air Act (FCAA)], §111 (regarding [Federal] New Source Performance Standards) as listed under Title 40 Code of Federal Re ulations CFRI Part 60 promulgated by the EPA [and § 112 (regarding Hazardous Air Pollutants)] ;

(4) the proposed project must comply with the applicable provisions of FCAA. § 112 (regarding Hazardous Air Pollutants) as listed under 40 CFR 61, promul at~ ed by the EPA:

(5_) the proposed pro,ject must comply with the applicable maximuma_chipyable control technology standards as listed under Chapter 113 Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories .(FCAA &112. 40 CFR 63)) . (O[(4)] the owner or operator ofthe facility shall register the proposed project in accordance with §116.611 of this title (relating to Registration Requirements) . (b) - (c) (No change.) (d_) Any project which constitutes a new or reconstructed facility and is a major source of hazardous air pollutants. shall comply with all applicable requirements under Subchapter C of thisTexas Natural Resource Conservation Commission Page 124

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Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2124/98 chapter (relating to Hazardous Air Pollutants: Regulations Governin2 Constructed or Reconstructed Major Sources (FCAA &112(g,) 40 CFRPart 63))Sources subject to Subchapter C ofthis chapter may use a standard permit under this subchapter only if the terms and conditions of the specific standard permit meet the requirements of Subchapter C of this chapter. §116.611 . Registration Requirements . (a) Registration for a standard permit shall be sent by certified mail, return receipt requested, or hand delivered to the commission's [Texas Natural Resource Conservation Commission (commission)] Office of Air Quality, the appropriate commission regional office [Regional Office], and any local air pollution programwithjurisdiction, before a standard permit can be claimed. The registration must be submitted on a FormPI-1S and must document compliance with the requirements of this section, including, but not limited to:

(1) - (6) (No change.) (b) - (c) (No change.)Texas Natural Resource Conservation Commission Page 125

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### Revised 2/24/98 § 116.614. Standard Permit Fees. Any person who claims a standard permit shall remit, at the time of registration, a flat fee of $450 for each standard permit claimed. All standard permit fees will be remitted in the formof'a check or money order made payable to the Texas Natural Resource Conservation Commission (TNRCC) and delivered with the permit registration to the TNRCC, P.O . Box 13088 MC 214 Austin. Texas 78711-_ 3088 [P.O. Box 13087, Austin, Texas 78753] . No fees will be refunded. §116.615. General Conditions. The following general conditions are applicable to holders of standard permits, but will 1-It necessarily be specifically stated within the standard permit document. '

(1) Protection of public health and welfare. The emissions fromthe facility must comply with all applicable rules and regulations of the commission [Texas Natural Resource Conservation Commission (commission)] adopted under the Texas Health and Safety Code, Chapter 382, and with intent ofthe TCAA [Texas Clean Air Act (TCAA)], including protection of health and property ofthe public.

(2) (No change.)Texas Natural Resource Conservation Commission Page 126

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(3) Standard permit in lieu of permit amendment. All changes authorized by standard permit to a facility previously permitted under [pursuant to] § 116.110 of this title (relating to Applicability) shall be administratively incorporated into that facility's permit at such time as the permit is amended or renewed.

(4) - (7) (No change.) (8) Recordkeeping. A copy of the standard permit along with information and data sufficient to demonstrate applicability ofand compliance with the standard permit shall be maintained in a file at the plant site and made available at the request of representatives of the executive director, the EPA [United States Environmental Protection Agency], or any air pollution control programhaving jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit registration. This information must include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in the conditions ofthe standard permit. Information and data sufficient to demonstrate applicability of and compliance with the standard permit must be retained for at least two years following the date that the information or data is obtained. The copy of the standard permit must be maintained as a permanent record.

(9) Maintenance of emission control . The facilities covered by the standard permit may not be operated unless all air pollution emission capture and abatement equipment is maintained inTexas Natural Resource Conservation Commission Page 127

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### Revised 2124/98 good working order and operating properly during normal facility operations. Notification for upsets and maintenance shall be made in accordance with §101 .6 and §101 .7 of this title (relating to Upset Reporting and Recordkeeping Requirements, and Maintenance Startup and Shutdown Reportim Recordkeeping. and Operational Requirements [Notification Requirc;ments for Major Upset and Notification Requirements for Maintenance]) .

(10) Compliance with rules. Registration of a standard permit by a standard permit applicant constitutes an acknowledgment and agreement that the holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAAand the conditions precedent to the claiming of the standard permit. If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern [governs] . Acceptance includes consent to the entrance of commission employees and designated representatives of any air pollution control programhavingjurisdiction into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration ofair contaminants, including compliance with the standard permit. §116.617. Standard Permits for Pollution Control Projects. This standard permit applies to the installation ofemissions control equipment or implementation of control techniques as required by any governmental standard, or undertaken voluntarily, or to replace existing emission control equipment or control techniques. This standardTexas Natural Resource Conservation Commission Page 128

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### Revised 2124198 permit also authorizes the substitution of compounds used in manufacturing processes for the purpose of complying with governmental standards or to reduce emission effects.

(1) - (4) (No-change.) (5) Installation of the control equipment or implementation of the control technique must not result in an increase in the facility's production capacity unless the capacity increase occurs solely as a result of the installation of control equipment or the implementation of control techniques on existing units. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate resulting fromthe installation of control equipment or the implementation of a control technique. (A) The owner or operator shall obtain or qualify for any necessary authorization under [pursuant to] §116.110 of this title (relating to Applicability) or §116.116 of this title (relating to Changes to Facilities) prior to wilizing any production capacity increase froma pollution control project required by any governmental standard that: (i) - (ii) (No change.) (B) Any production capacity increase resulting fromthe voluntary installation ofcontrols or the implementation ofcontrol techniques may not be utilized until the owner or operatorTexas Natural Resource Conservation Commission Page 129

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### Revised 2/24/98 obtains or qualifies for any necessary authorization under [pursuant to] § 116.110 or § 116.116 of this title. (6) - (7) (No change.)

(8) If the project, without consideration of any other increases or decreases not related to the project, will result in a significant net increase in emissions of any criteria pollutant, a person claiming this standard permit shall submit, with the registration, information sufficient to demonstrate that the increase will meet the conditions of subparagraph (A) of this paragraph. (A) - (B) (No change.) (C) Netting is not required when determining whether this demonstration must be made for the proposed project. The increases and decreases in emissions resulting fromthe project must be included in any future netting calculation ifthey are determined to be otherwise creditable under PSD and nonattainment newsource reviewprovisions of the FCAA [Federal Clean Air Act (FCAA)], Parts C and D and regulations promulgated thereunder.

(9) For purposes of compliance with the PSD and nonattainment new source review provisions of the FCAA, Parts C and D and regulations promulgated thereunder, any increase that is less than significant, or satisfies the requirements of paragraph (8) of this section does not constitute aTexas Natural Resource Conservation Commission Page 130

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 physical change or a change in the method of operation. For purposes of compliance with the Standards of Performance for New Stationary Sources regulations promulgated by the EPA [United States Environmental Protection Agency] at 40 CFR §60.14 (effective December 16, 1975), an increase that satisfies the requirements of paragraph (8) of this section also satisfies the requirements of 40 CFR §60.14(e)(5) . §116.620. Installation and/or Modification of Oil and Gas Facilities. (a) Emission specifications . (1) - (3) (No change.) (4) New

or modified internal combustion reciprocating engines or gas turbines permitted under this standard permit shall satisfy all of the requirements of §106.512 of this title _(relatin,g to Stationary Engines and Turbines (Previously SE 6)1 [Standard Exemption Number 6], except that registration using the FormPI-7 or PI-8 shall not be required. Emissions fromengines or turbines shall be limited to the amounts found in §106.4&1) of this title (relating t!2 Requirements for Exemption fromPermitting) [§116.211(a)(1) of this title (relating to Standard Exemption List)]

.

(5) - (12) (No change.)Texas Natural Resource Conservation Commission Page 131

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98

(13) Appropriate documentation shall be submitted to demonstrate that compliance with the Prevention of Significant Deterioration (PSD) and nonattainment new source reviewprovisions of the FCAA [Federal Clean Air Act], Parts C and D, and regulations promulgated thereunder, and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA &112(2,) 40 CFR Part 63)1 are being met . The oil and gas facility shall be required to meet the requirements of Subchapter B of this chapter (relating to New Source ReviewPermits) instead of this subchapter if a PSD or nonattainment permit or a reviewunder Subchapter C ofthis chapter is required.

(14) Documentation shall be submitted to demonstrate compliance with applicable New Source Performance Standards (NSPS, 40 CFRPart 60) [and National Emission Standards for Hazardous Air Pollution (NESHAP, 40CFR61)] . '

(15) Documentation shall be submitted to demonstrate compliance with applicable National . Emission Standards for Hazardous Air Pollution INESHAP 40 CFR Part 611 .

(16) Documentation shall be submitted to demonstrate compliance with applicable maximumachievable control technology standards listed in Chapter 113 Subchapter C of this title (relating _to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA &112. 40 CFR Part 63)) .Texas Natural Resource Conservation Commission Page 132

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### Revised 2/24198

(17) [(15)] New

and increased emissions shall not cause or contribute to a violation of any National Ambient Air Quality Standard or regulation property line standards as specified in Chapters 111, 112, and 113 of this title (relating to Control of Air Pollution fromVisible Emissions and Particulate Matter; Control of Air Pollution fromSulfur Compounds; and Control of Air Pollution fromToxic Materials) . Engineeringjudgment and/or computerized air dispersion modeling may be used in this demonstration. To showcompliance with §116.610(a)(1) ofthis title (relating to Applicability) for HZS emissions fromprocess vents, ten milligrams per cubic meter shall be used as the. . "L" value instead of the value represented by §116.610(a)(1) ofthis title.

(18) [(16)] Fuel for all combustion units and flare pilots shall be sweet natural gas or liquid petroleumgas, fuel gas containing no more than ten grains of total sulfur per 100 dry standard cubic feet dsc [(scdf)], or field gas. If field gas contains more than 1 .5 grains of HZS or 30 grains total sulfur compounds per 100 dscf [scdf], the operator shall maintain records, including at least quarterly measurements of fuel HZS and total sulfur content, which demonstrate that the annual SOZ emissions fromthe facility do not exceed the limitations listed in the standard permit registration. If a flare is the only combustion . unit on a property, the operator shall not be required to maintain such records on flare pilot gas. (b) Control requirements.Texas Natural Resource Conservation Commission Page 133

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### Revised 2/24/98

(1) Floating roofs or equivalent controls shall be required on all new or modified storage tanks, other than pressurized tanks which meet § 106.476 ofthis title (relating to Pressurized Tanks or Tanks Vented to Control (Previously SE 83)) [Standard Exemption 83], unless the tank is less than 25,000 gallons in nominal size or the vapor pressure of the compound to be stored in the tank is less than 0.5 pounds per square inch absolute (psia) at maximumshort-termstorage temperature. (A) - (E) (No change.) (2) (No change.) (c) Inspection requirements. (1) Owners or operators who are subject to subsection (a)(7) or (8) of this section shall comply with the following requirements. (A) No component shall be allowed to have a VOC leak for more than 15 days after the leak is detected to exceed a VOCconcentration greater than 10,000parts per million by volume (ppmv) above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound for all components. The VOCfugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0.5 psia at 100 degrees Fahrenheit are exempt fromthis requirement. If VOCTexas Natural Resource Conservation Commission Page 134

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 fugitive emission components are in service where the operating pressure is at least 0.725 pounds per square inch (psi) (five kilopascals (Kpa)) below ambient pressure, then these components are also exempt fromthis requirement as long as the equipment is identified in a list that is made available upon request by the agency representatives, the EPA [United States Environmental Protection Agency (EPA)] ; or any other air pollution agency havingjurisdiction. All piping and valves two inches nominal size and smaller, unless subject to federal NSPS requiring a fugitive VOCemissions leak detection and repair programor Chapter 115 of this title (relating to Control of Air Pollution fromVolatile Organic Compounds), are also exempt fromthis requirement. (B) - (1) (No change.) (J) After completion ofthe required quarterly inspections for a period of at least two years, the operator ofthe oil and gas facility may request in writing to the Office of Air Quality, New

Source ReviewPermitting [Permits] Division that the monitoring schedule be revised based on the percent of valves leaking. The percent ofvalves leaking shall be determined by dividing the sumof valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that has been developed tojustify the following modifications in the monitoring schedule. (i) - (ii) (No change.)Texas Natural Resource Conservation Commission P-ige 135

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98

(2) Owners or operators who are subject to subsection (a)(9) or (10) of this section shall comply with the following requirements. (A) - (1) (No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality, New

Source ReviewPermitting [Permits] Division that the monitoring schedule be revised based on the percent ofvalves leaking. The percent of valves leaking shall be determined by dividing the sumof valves leaking during current monitoring and valves for which repair has been delayed by the total number ofvalves subject to the requirements. This request shall include all data that have been developed to justify the following modifications in the monitoring schedule. (i) - (ii) (No change.) (K) (No change.) (3) (No change.) (d) Approved test methods.Texas Natural Resource Conservation Commission ' Page 136

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### Revised 2124198

(1) - (2) (No change.) (3) Proper operation of any condenser used as a VOC emissions control device to comply with subsection (a)(5) of this section shall be tested to demonstrate compliance with the minimumcontrol efficiency. Sampling shall occur within 60days after start-up of new or modified facilities. The permittee shall contact the Engineering Services Section, Office ofCompliance and Enforcement [Air Quality Enforcement Division] 45 days prior to sampling for approval of sampling protocol . The appropriate regional office in the region where the source is located shall also be contacted 45 days prior to sampling to provide themthe opportunity to viewthe sampling. Neither the regional office nor the Engineering Services Section, Office of Compliance and Enforcement [Air Quality Enforcement Division] personnel are required to view the testing. Sampling reports which comply with the provisions of the "TNRCC Sampling Procedures Manual," Chapter 14 ("Contents of Sampling Reports," dated January 1983 and revised July 1985), shall be distributed to the appropriate regional office, any local programs, and the Engineering Services Section, Office of Co=liance and Enforcement [Air Quality Enforcement Division] . (e) Monitoring and recordkeeping requirements. (1) If the operator elects to install and maintain ambient HZS property line monitors to comply with subsection (a)(11) ofthis section, the monitors shall be approved by the Engineering Services Section, Office of Comnliance and Enforcement [Air Quality Enforcement Division] office inTexas Natural Resource Conservation Commission Page 137

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### Revised 2/24/98 Austin, and shall be capable of detecting and alarming at 1-12S concentrations of ten ppmv. Operations personnel shall performan initial on-site inspection of the facility within 24 hours of initial alarmand take corrective actions as listed in subsection (c)(3)(A)-(C) of this section within eight hours of detection of a leak.

(2) The results of the VOC leak detection and repair requirements shall be made available to the executive director [, his or her designated representative,j or any air pollution control agency havingjurisdiction upon request . Records, for all components, shall include: (A) - (E) (No change.) (3) - (8) (No change.) §116.621. Municipal Solid Waste Landfills. A person may claima standard permit for the construction or modification to a municipal solid waste landfill (MSWLF) or municipal solid waste facility (MSW facility) as defined in § 101 .1 of this title (relating to Definitions), including, but not limited to, Type I, Type 1-AE, Type II, Type III, Type IV, Type IV-AE, Type VI, and Type IX sites as defined in §330.41 of this title (relating to Types of Municipal Solid Waste Sites) .Texas Natural Resource Conservation Commission Page 138

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### Revised 2/24/98

(1) (No change.) (2) Separate permit authorization under Subchapter B of this chapter (relating to New Source ReviewPermits) must be obtained for the following: (A) - (E) (No change.) (F) any project which constitutes a newmajor source, or major modification under the new

source reviewrequirements of the FCAA [Federal Clean Air Act], Part C (Prevention of Significant Deterioration review), [or] Part D (nonattainment review) and regulations promulgated u :it~-eunder, or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governine Constructed or Reconstructed Major Sources (FCAA. ~112(g) 40CFR Part 63)) shall be subject to the requirements of § 116.110 of this title (relating to Applicability) rather than this subchapter. (3) (No change.)

(4) The permit holder shall comply with the air emissions standards as specified in 40 CFRPart 60, Subpart WWW, with the following additions and changes. (A) (No change.)Texas Natural Resource Conservation Commission Page 139

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 (B) The GCCS shall be designed to control nonmethane organic compounds (NMOC) gas emissions in one or more of the following ways by routing the total collected gas to: (i) an open flare with a minimumheight of 30feet and which satisfies ali ofthe requirements of Cha.pter 106 Subchapter A of this title (relating to General Requirements) [§ 116.211 of this title (relating to Standard Exemption List), Standard Exemption Number 80,] and U06.492 of this title (relating to Flares (Previously SE 80)) . except that registration using Form PI-7 or PI-8 [P1-7 or P1-8] shall not be required; 

### (ii) - (iii) (No change.) (iv) gas or liquid fuel-fired stationary internal combustion reciprocating engines or gas turbines that satisfy all of the requirements of Chapter 106. Subchapter A ofthis title and U06

. 512 of this title (relating to Stationary Engines and Turbines (Previously SE 6)) [§116.211 of this title, Standard Exemption Number 6], except that registration using FormPI-7 or PI-8 shall not be required; or (v) boilers, heaters, or other combustion units, but not including stationary internal combustion engines or turbines, that satisfy all of the requirements ofChapter 106. Subchapter Aof this title and U06. 183 ofthis title (relating to Boilers Heaters, or Other Combustion Devices (Previously SE 7)Z [§116.211 ofthis title, Standard Exemption Number 7] .Texas Natural Resource Conservation Commission Page 140

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 (C) The active GCCS may be capped or removed only if, in addition to the requirements listed in 40 CFR, §60.752(b)(2)(v), the MSWLF is permanently closed under. [pursuant to] §§330.250-330.256 of this title (relating to Closure and Post-closure) .

(5) (No change.) (6) High volume air sampling for net ground level concentrations of total particulate matter shall be performed upon request of the executive director or a designated representative. Each test shall consist of at least one upwind and orie downwind sample taken simultaneously. The tests shall be performed during normal operations. Amonitoring plan for high volume sampling shall be develope-j '~: accordance with the Office of Air Quality Management Plan, Appendix I ( EPA [United States Environmental Protection Agency (EPA)] Requirements for Quality Assurance Project Plans, dated February 1995) and the "TNRCC Sampling Procedures Manual," Chapter 11 (["Particulate Matter,"] dated January 1983 and revised July 1985), and shall require approval by the executive director or a designated representative prior to sampling. The executive director or a designated representative shall be afforded the opportunity to observe all such sampling equipment, operations, and records upon request.

(7) GCCS components (compressor seals, pipeline valves, pressure relief valves in gaseous service, flanges, and pump seals) at an MSWLF or MSW facility, where the total ofall estimated uncontrolled fugitive emissions fromall components is greater than ten tons per year, shall beTexas Natural Resource Conservation Commission Page 141

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 inspected and maintained under [pursuant to] the requirements of § 116.620(c)(1)(A)-(J) of this title (relating to Installation and/or Modification ofOil and Gas Facilities), with the following changes and additions. (A) - (E) (No change.)

(8) The owner or operator of each MSWLF unit shall maintain complete and up-to-date records sufficient to readily determine continuous compliance with the requirements ofthis section for the previous five years of operation. All the records shall be maintained in an operating record in accordance with §330.113(b)(11) of this title (relating to Recordkeeping Requirements) . The records shaa' ~ : available for reviewupon request by representatives of the commission or any local air pollution agency havingjurisdiction. The following recordkeeping requirements shall apply, in addition to those specified in 40 CFR 60, Subpart VVWW . (A) Permit holders who are subject to the exemptions of Chapter 106 of this title relating to Exemptions fromPermitting) . as [a standard exemption] specified in paragraph (4) of this section shall maintain any records specified in the exemption. (B) (No change.)Texas Natural Resource Conservation Commission Page 142

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### SUBCHAPTER G: FLEXIBLE PERMITS

§§116.710, 116.711, 116.714, 116 .715, 116 .721, 116.730, 116

.740, 116

.750

STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, §§382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose ofthe TCAA and approve all general policy of the commission. The review ofthe commission's rules is proposed under Article IX, Rider 167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, §382.017, concerning Rules, §382.051, concerning Permitting Authority of Commission; Rules, §382.0518, concerning Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal Operating Permit. 

### §116.710. 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 §116.110 of this title (relating to Applicability), or in lieu of amending an existing permit under § 116.116of this title (relating to Amendments and Alterations) . Aperson may obtain a flexibleTexas Natural Resource Conservation Commission Page 143

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Construction or Modification Rule Log No. 98001-116-Al Revised 2124198 permit under [pursuant to] § 116.711 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) - (4) (No change.) [(b) Operations certification. Any person who obtains a flexible permit under this subchapter shall comply with §116.110(b) of this title.] (b), [(c)] Change in ownership. The newowner 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 : ~, :°,rship at the same time and to the same person, or both the new owner and existing permit holder must obtain a permit alteration allocating the emission caps or individual emission limitation prior to the transfer of the permit by the commission [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 commission [TNRCC] . (c) [(d)] Submittal under seal of Texas licensed [registered] professional engineer . All applications for a flexible permit or flexible permit amendment shall comply with § 116.110 (e) [(d)] of this title.Texas Natural Resource Conservation Commission Page 144

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 ~M [(e)] Responsibility for flexible permit application. The owner ofthe 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 (b) [(c)] of this section. §116.711. Flexible Permit Application. Any application for a new flexible permit or flexible permit amendment must include a completed FormPI-1 General Application. The FormPI-1 must be signed by an authorized representative of the applicant. The FormPI-1 specifies additional support information which must be provided before the applicat=o~~ :s deemed complete. In order to be granted a flexible permit or flexible permit amendment, the owner or operator ofthe proposed facility shall submit information to the commission [Texas Natural Resource Conservation Commission (TNRCC)] which demonstrates that all of the following are met .

(1) Protection of public health and welfare. The emissions fromthe proposed facility, group of facilities, or account as determined under [pursuant to] § 116.716 ofthis title (relating to Emission Caps and Individual Emission Limitations), will comply with all rules and regulations of the commission [TNRCC] and with the intent ofthe TCAA [Texas Clean Air Act (TCAA)], including protection of the health and physical property ofthe people. In considering the issuance of a flexible permit for construction or modification of any facility, group of facilities, or account within 3,000feetTexas Natural Resource Conservation Commission Page 145

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Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98

or less of an elementary, junior high/middle, or senior high school, the commission [TNRCC] shall consider any possible adverse short-term or long-termside effects that an air contaminant or nuisance odor fromthe 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 measuring the emission of air contaminants as determined by the executive director [Executive Director] . This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual" ["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 fromthe facility on a proposed facility, group offacilities, 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 and physical changes to existing facilities which concern a maximum available control technology (MACT_) determination for constructed or reconstructed sources under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing~ConstructedTexas Natural Resource Conservation Commission Page 146

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### Revised 2/24/98

or Reconstructed Major Sources (FCAA. &112(g) 40 CFR Part 63)) , the use of BACT shall be demonstrated for the individual facility.

(4) [Federal] New

Source Performance Standards (NSPS) . The emissions fromeach 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 EPA under [United States Environmental Protection Agency (EPA) pursuant to] authority granted under the FCAA [Federal Clean Air Act (FCAA)], §111, as amended.

(5) National Emission Standards for Hazardous Air Pollutants (NESHAPS) [and MaximumAchievable Control Technologt% (MACT)] . The emissions fromeach 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 EPAunder [pursuant to] authority granted under the FCAA, §112, as amended.

() NESHAPS for source categories The emissions from each affected facilitv shall meet at least the requirements of any applicable MACT standard as listed under Chapter 113. Subchal2ter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA &112. 40 CFR63)) .Texas Natural Resource Conservation Commission Page 147

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(7) [(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.

(8) [(7)] Nonattainment review . Ifthe 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 nonattainr.~, ; t reviewin Subchapter B ofthis chapter (relating to New Source ReviewPermits) .

M [(8)] Prevention of Significant Deterioration (PSD) review . Ifthe 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 ofthis chapter .

,(.10) [(9)] Air dispersion modeling or ambient monitoring. Computerized air dispersion modeling and/or ambient monitoring may be required by the commission's New Source Review Permitting Division [TNRCC Permits Program] to determine the air quality impacts fromthe facility, group of facilities, or account.Texas Natural Resource Conservation Commission Page 148

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### Revised 2/24/98

(11) Federal standards of reviewfor constructed or reconstructed major sources of hazardous air pollutants If the proposed new or reconstructed facility is a major source for hazardous air pollutants it shall comply with all applicable requirements under Subchapter C of this chanter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA. §112(g) 40 CFR Part 63)) .

(12) [(10)] Application content. In addition to any other requirements ofthis 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 permit; (C) identify each source ofemissions to be included in the flexible permit and for each source of emissions identify the Emission Point Number (EPN) and the air contaminants emitted; (D) for each emission cap, identify all associated EPNs and provide emission rate calculations based on the expected maximumcapacity and the proposed control technology;Texas Natural Resource Conservation Commission Page 149

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2124/98 (E) for each individual emission limitation, identify the EPN and provide emission rate calculations based on the expected maximum capacity and the proposed control technology. 13,2 [(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 maximumproduction capacity. 

### §116.714. Application ReviewSchedule. The flexible permit application will be re- : ~.ved by the commission [Texas Natural Resource Conservation Commission] in accordance with § 116.114 of this title (relating to Application Review Schedule) . §116.715. 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 [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 reviewunder ,$,116 150 and 4116.151 and &&116.160-116.163 of this title [the undesignated headings ofTexas Natural Resource Conservation Commission Page 150

Chapter 116 - Control of Air Pollution by Permits For NewConstruction or Modification Rule Log No. 98001-116-Al 

### Revised 2124198 Subchapter B of this chapter] (relating to Nonattainment Reviewor Prevention of Significant Deterioration Review) or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA. ~- 112(g) 40 CFRPart 63)), the permit may include a special condition which requires the permittee to obtain written approval fromthe executive director [Executive Director] before constructing a facility under a standard ep rmit or an exemption under Chapter 106 of this title (relating to Exemptions fromPermitting) [exemption or standard permit] . (b) (No change.) (c) The following general conditions shall be appliral,le 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 [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 § 116.721 ofthis 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 officeTexas Natural Resource Conservation Commission Page 151

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24/98 of the commission [Texas Natural Resource Conservation Commission (TNRCC)] not later than 15 working days after occurrence of the event.

(3) Start-up notification. The appropriate regional office ofthe commission [Air ProgramRegional Office of the TNRCC] and any local programhavingjurisdiction 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 commission [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. Ifsampling of stacks or process vents is required, the flexible permit holder shall contact the commission's Engineering Services Section. Office of Compliance and Enforcement [Source and Mobile Monitoring Section of the TNRCC Office of Air Quality] prior to sampling to obtain the proper data forms and proced~, :res. All sampling and testing procedures must be approved by the executive director [Executive Director] and coordinated with the appropriate regional office of the commission [Air ProgramRegional Office ofthe 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 otherwisejustify the equivalency of emission control methods, sampling or otherTexas Natural Resource Conservation Commission Page 152

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2124/98 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 [Executive Director] prior to their use in fulfilling any requirements of the 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 fromthe commission [TNRCC] or any air pollution control programhavingjurisdiction. 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) - (8) (No change.) (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 inTexas Natural Resource Conservation Commission Page 153

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 good working order and operating properly during normal facility operations. Notification for upsets and maintenance shall be made in accordance with §K~ . .6 and §101 .7 of this title (relating to Upset Reporting and Recordkee .ping_Requ_irementsand Maintenance Startup and Shutdown Reporting, Recordkeeping and Operational Requirements [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 acknowledgment and agreement that the holder will comply with all Rules, Regulations, and Orders ofthe commission [Commission] issued in conformity with the TCAA [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 mo,,t stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated. Acceptance includes consent to the entrance of commission [Commission] employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration ofair contaminants, including compliance with the flexible permit. (d) (No change.)Texas Natural Resource Conservation Commission Page 154

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24198 §116.721 . 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 fromsuch representation or flexible permit provision if the change will cause a change in the method of control of emissions, the character ofthe emissions, or will result in a significant increase in emissions, unless application is made to the executive director [Executive Director] to amend the flexible permit in that regard and such amendment is approved by the executive director [Executive Director] or commission [Commission] . Applications to amend a flexible permit shall be submitted with a completed FormPl-1 and are subject to the requirements of § 116.711 of this title (relating to Flexible Permit Application) . (b) Flexible permit alterations . (1) (No change.) (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 [Executive Director] . The executive director [Executive Director] shall be notified in writing ofall other flexible permit alterations within ten [10] days of implementingTexas Natural Resource Conservation Commission Page 155

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98 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 §116.711 of this title, including the protection of public health and welfare. The appropriate commission regional office [Texas Natural Resource Conservation Commission Regional Office] and any local air pollution programhavingjurisdiction shall be provided copies of all flexible permit alteration documents.

(3) (No change.) (c) (No change.) (d) Exemption under Chapter 106 of this title (relating to Exemptions fromPermitting) [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 Chapter 106 of this title (relatingto Exemptions fromPermitting) [Subchapter C of this chapter (relating to Permit Exemptions)] unless prohibited by permit provision as provided in § 116.715 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.Texas Natural Resource Conservation Commission Page 156

Chapter 116 - Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-AI Revised 2/24/98

(2) Emission increases authorized by Chapter 106 of this title [standard exemption] at an existing facility covered by a flexible permit shall not cause an exceedance of the emissions cap or individual emission limitation. §116.730. 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 116. 120-116.126of this title (relating to Compliance History) [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. §116.740. Public Notice and Comment . (a,) Any person who applies for a flexible permit or an amendment to a flexible permit shall comply with the provisions in §.§116. 130-116. 134, 116. 136, 116. 137 of this title (relatine to Public Notification and Comment Procedures [the undesignated head regarding Public Notification and Comment Procedures in Subchapter B of this chapter] . (b) Any person who applies for an amendment to a flexible permit that concerns a maximum achievable control technology determination for constructed or reconstructed sources under SubchanterTexas Natural Resource Conservation Commission Page 157

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Construction or Modification Rule Log No. 98001-116-AI 

### Revised 2/24198 C o f this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Malor Sources (FCAA &112(g) 40 CFR Part 63)) shall comply with the nrovisions in

~ ~116.13

0-116 . 134, 116.136. and 116.137 of this_ title. 

### §116.750. Flexible Permit Fee. (a) (No change.) (b) Fee amounts. The fee to be remitted with a flexible permit application shall be based on the total annual allowable emissions fromthe permitted facility, group of facilities, or account for which the flexible permit is being sought. The fee shall be $25 per ton with the minim_uu, :~°e being $450 and the maximumfee $75,000. For flexible permit amendments, the fee shall be calculated based on $25 per ton for the incremental emission increase with the minimumfee being $450 and the maximumfee being $75,000. (c) Payment of fees. All permit fees for a flexible permit shall be remitted in the formof 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 commission's New

Source Review

Permitting Division [TNRCC Office of Air Quality New Source ReviewProgram] . Required fees must be received before the agency will begin examination of the application.Texas Natural Resource Conservation Commission Page 158

Chapter 116- Control of Air Pollution by Permits For New

Construction or Modification Rule Log No. 98001-116-Al Revised 2/24198 (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 an exemption under Chapter 106 of this title (relating to Exemptions fromPermitting [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.

# WRITTEN AND ORAL TESTIMONYINDEX OF WRITTEN TESTIMONY

Reference Number Submitted By W-1 W-2 W-3 Jole C. Luehrs, U.S. Environmental Protection Agency Jennifer Keane, Texas Industry Project Richard L. White, Texas Utilities Electric Company, Texas Utilities Fuel Company, Texas Utilities Mining Company, and ENSERCH

### UNITED STATES ENVIRONMENTAL PROTECT10NAGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 pR 7 Q' .V'3 

## APR ? 9 ~ggg Mr . Herbert W

. Williams, Jr . Director Air Policy and Regulations Division Texas Natural Resource Conservation Commission P .O. Box 13087 Austin, TX 78711-3087 RE : Comments on Proposed Revisions to Texas Natural Resource Conservation Commission (TNRCC) Chapter 116 - Implementation of Section 112(g) of the Clean Air Act and Other Clarifications Dear Mr . Williams : 

### Thank you for providing us with the opportunity to review the Draft Proposed changes to TNRCC Chapter 116, to include provisions for implementing section 112(g)(2) of the Clean Air Act and to make general correction and clarifications to Chapter 116. On March 9, 1998, TNRCC forwarded the proposed revisions to Chapter 116. My staff has reviewed these changes and has identified the following comments : 1 . Applicability : The proposed Section 116.182 limits implementation of section 112(g) regulation, by the State, to those sources covered by the Texas interim operating Permit program . Sources not covered i n the interim program will also be subject to the section 112(g) implementing . regulation after June 29, 1998. Under these conditions, construction projects falling under the section 112(gY regulation but not regulated under the--interim-Texas Operating Permit program-will--need-to--obtain a-Maximum----- Achievable Control Technology (MACT)- ._determination from- the Environmental Protection Agency (EPA) Dallas Regional

-- ---- ------ -- 

### -- _-_- - __ Office, before -coristructiori-may _begi-n- .-------_-___-- -- 2. MACT and (Best Available Control Technology- (BACT)--- Determinations : Page 13 of the preamble interprets 63 .43(d) to require case-by-case MACT determinations to be equivalent to current BACT-determinations :---The-Clean Air-=Act---contains

Recycled/Recyclable " Pdntod WOVegetable Oil Based Inks on 100% Recycled Paper(40%Pastaonsumer)specific definitions for MACT and BACT, and EPA does not consider the terms to be equivalent . Sources permitted under section 112(g) must apply MACT as defined in the regulation. The State's administrative procedures for preconstruction review may be used as long as the requirements of 40 Code of Federal Regulations 

### 63 .43 (c) (2) (ii) are met . I appreciate the effort made by your staff to work with Region 6. If we can provide further information, please contact me or Stanley M . Spruiell of my staff at (214) 655-7212. Sincerely yours,

Air Permits Section 

### Chief Jole C

., 1C~(::n JJC1

DALLAS HOUSTON LONDON MOSCOW

, NEW

YORK WASHINGTON, D.C. 

### BAKER & BOTTS L. L. P. 1600 SAN JACINTO CENTER 98 SAN JACINTO BLVD . AUSTIN, TEXAS 78701-4039 TELEPHONE : (512) 322-2500 FACSIMILE: (512) 322-2501 JENNIFER KEANE E-MAIL ADDRESS : (5i2) 322-2594 JENNIFER_KEANE(&BAKERBOTTS .COM 

### April 20, 1998 Ms. Lisa Martin Texas Natural Resource Conservation Commission Office ofPolicy &Regulatory Development MC205 P.O . Box 13087 _ Austin, Texas 78711-3087 Re: Rule Log No. 98001-116-Al Dear Ms. Martin:

Baker & Botts, L.L.P., on behalf of the Texas Industry Project', offers these comments on the proposed revisions to Chapter 116 published at 23 Tex. Reg. 2953 (March 20, 1998) . Please contact Jennifer Keane at (512) 322-2594 if you have any questions about these comments. 1. § 116

.15(8) : This language is takenfromthefederal definition of "process and production unit" andcontains thefederal term"facility" which is different than the state definition. TIP suggests deleting the last sentence of § 116 .15(8) to avoid future confusion. 2 . § 116.110(a) : Move theclause "before anyactual work is begun on the facility" fromthe end of subsection (a) (4) to the general language of (a) as follows: " Permit to construct. Before any actual work is begunon the facility,fa]nv person whoplans to construct . . ." This will prevent any confusion as to whether that clause modifies only (4) or (1)-(4) .

'The Texas Industry Project (TIP) is composed of43 companies in the chemical, refining, oil and gas, electronic, forest products, terminal, electric utility and transportation industries with operations in Texas. AUS01 :133369.1 111111 .1111BAKER & BOTTS L . L. P .



### Ms. Lisa Martin -2- April 20, 1998

3. § 116.110(b) : Add reference to the use of exemptions frompermitting to authorize modifications to permitted facilities as follows: "Modifications to existing permitted facilities Modifications to existing_ permitted facilities may be handled though the amendment of an existing permit or an existing flexible permit or through the use of exemptions frompermitting under Chapter 106 ofthis title. " . 4 . § 116

.110(c) : EPA's § 112(g) rules impose requirements governing the construction or reconstruction of major sources not facilities. The language should read as follows: "Exclusion Owners or operators ofaffected sources (as defined in &116 .15 ofthis title) su 'ect t . . ." 5. § 116.111(2)(K) : Theterm"facility" is incorrect when used in this subsection. Subsection (K)would be clearer ifthe language simply read: "Hazardous air pollutants. Proposed major sources for hazardous air pollutants shall comply with all applicable requirements under Subchapter C

. . ." 6 . § 116.115(b)(2)(F) : The use ofthe word "records" is confusing as is the use of the term "paragraph." The existing language of § 116.115(b)(6) is much clearer and easier to understand andTIPsuggests usingthat language in lieu ofthis proposal . 7. § 116.115(b)(2)(I)(ii) : By deleting the words "shall govern," TNRCC is proposing a substantive change to theexisting language of § 116 .115(b)(9) . Becausethe preamble states that the changes do not involve substantive requirements, TIPbelieves that it is important to leave existing rules in place. Thus, the language of§ 116 .115(b)(2)(I)(ii) should read as follows: "If more than one state or federal rule or regulation or permit condition are applicable the most stringent limitation or condition shall govern and be the standard bv which compliance shall be demonstrated. " 8. § 116

.115(c) ; § 116

.115(a) : When originally promulgated, this section was addressing "permits, special permits andexemptions" (with "special" referencing both "special permits" and "special exemptions"--a type ofexemption no longer available today.) Areference to standard permitswas addedwhen those types ofpermitsbecame available. Placement ofthat reference has changed the meaning oftheclause, such that it can be read to authorize general andspecial conditions for exemptions frompermitting under Chapter 106 . Sincea facility "claims" such exemptions rather than applies for them, there is no opportunity--nor is it

AUS01 :133369. 1 111111 .1111BAKER & BOTTS L. L. P .



### Ms. Lisa Martin - 3 - April 20, 1998 appropriate--for theTNRCCto impose general or special conditions for an exemption. TIP suggests deleting references to "exemptions" from§ 116.115 as this section is intended to address permits. Also, TIP recommends that TNRCCstaffdetermine whether it is usingthe term "permits" correctly throughout these Regulation VI revisions. In some situations, TNRCCdistinguishes betweentypes ofpermits, while in other times, no differentiation is made. For example, this provision specifically includes standard permits, but not flexible permits--although both types of permits have specific regulations addressing permit conditions (See § 116.615 (Standard Permits) and § 116.715 (Flexible Permits) .) TIP assumes that the term"permits" refers only to construction permits, but questions whythis provision affects standard permits. 9 . § 116.115(c)(2)(B) : The § 112(g) requirements proposed in Subchapter Cwill apply to "affected sources," as defined in § 116 .15. "Increases in aparticular pollutant" cannot cause a "facility" to become subject to reviewunder Subchapter C . TIPis concerned that TNRCC is misconstruing EPA's § 112(g) provisions. When promulgating the final rule, EPA decided to implement only that portion of § 112(g) that requires new source MACT determinations for constructed and reconstructed major sources, not the portion which requires existing source MACT determinations for modifications ofexisting facilities. Thus, Subchapter Cwill apply only in very limited circumstances. Simply increasing a particular pollutant will neverbe enough to subject asource to Subchapter C . As the preamble to the § 112(g) rule explains: Section 112(g) applies to either (i) a major source constructed on a greenfield site, or to (ii) a newor reconstructed "process or production unit" at an existing plant site, provided thatthe "process or production unit" emits hazardous air pollutants in amounts that exceed the majorsourcethreshold. Anew process orproduction unit at an existing major source must itself be inherently major-emitting; the EPA does not intend that a newprocess or production unit causing increased emissions at another unit downstreambe covered by this rule." 61 Fed. Reg . 68385. TNRCCneeds to be certain that its implementation of § 112(g) is not more stringent than that intended by EPA . TIP recommends deleting the reference to Subchapter (C) in § 116 .115(c)(2)(B)(ii) to ensure that these provisions are not misconstrued in the future. AUS01 :133369. 1 111111 .1111BAKER & BOTTS L.L. P .



### Ms. Lisa Martin -4- April 20, 1998 10. § 116.116(a) : The existing language of § 116.116(a) provides "All representations with regard to construction plans andoperation procedures in an applicationfor a permit, special permit, or special exemption, as well as any general and special conditions attached to the permit, special permit, or special exemption itself, become conditions on which the subsequent permit, special permit, or special exemption are issued." TNRCC's proposed revisions attempts to impermissibly broadenthis language by adding the word "include" before listing the types ofrepresentations found in existing § 116 .116(a) . This could allow TNRCCenforcement staffto argue that other types ofrepresentations inpermit applications are also conditions upon which a permit was issued by interpreting "include" as mere examples, rather than an exclusive list. TIP believes theexisting language is much clearer and easier to understand, and recommends that TNRCCsimply separate that language into subsections to follow

its new format. 11 . § 116

.116(b)(3) : The phrase "that concerns a determinationfor constructed or reconstructed sources under Subchapter C. . ." is confusing. TIPsuggests rewriting § 116 .116(b)(3) as follows: "Anv person whoapplies for an amendment to apermit to construct or reconstruct a major source of HAPsubject to Subchapter C. . .if 12. § 116.116(e)(6) : By reorganizing the existing language of § 116 .116(e)(5), TNRCC may create unplanned confusion about theaddition ofcontrol methods at qualified facilities. As currently drafted, the sentence "The implementation of anyadditional control methods shall be subjectto the requirements ofthis chapter" is foundatthe endofthe paragraph addressing the addition of such methods for the purposeofmaking a facility a qualified facility. By moving it to the second sentence and then separating requirements into (A) and (B), the rule makes it appear as ifALLadditional control measures" aresubjectto the requirements ofthis chapter" (whateverthat means) rather than ONLYthose additional control methods that are being implemented forthepurposeof making afacility aqualified facility. TIP recommends either deleting the sentence in its entirety (because its meaning is unclear as drafted even in theexisting language of § 116.116(e)(5)) orredraftingit to state "The implementation of any additional control methods to qualify afacility shall be subject to the requirements ofthis chapter . . ." 13. § 116

.121 : TNRCCis proposing to replace "contaminant" with "substance." "Substance" does not appear to be a defined term . In contrast, "air contaminant" is defined in the Texas

AUS01 :133369.1 111111 .1111BAKER & BOTTS

L. L.P .



### Ms. Lisa Martin - 5 - April 20, 1998 Clean AirAct and is commonly used in the area ofair pollution control . TIP recommends leaving the existing wording in place. 14. § 116

.122(b) : TNRCC is proposing to change this subsection fromplural (violations) to singular (violation) . TIPrequests that the provision be left in its plural form . 15. § 116

.141(b) : Though notproposed for revision, TIPnotes that theexisting language ofthis section provides that theapplicant "may" usethefee schedule to determine its fee. Abetter word would be "shall" since there is no discretion in fee payment. 16. § 116

.180(a) : TIPis concerned that TNRCCwill confuse the regulated community by placingsome definitions in § 116 .15 andsome in § 116

.180(a) with no cross-reference. TIP believes it would be more useful to keepall ofthe § 112(g) definitions in the same section, perhaps with separate paragraphs, ifneeded. 17. § 116

.180(b) : TIPstrongly believes that TNRCCshould conduct its own § 112(g) program and avoid duplicative agency reviewby EPA . Thus, TIP advocates adopting whatever compliance date is needed to assure that TNRCC can review and make § 112(g) determinations on its own. 18. § 116.181(d) : TIP requests that the language in § 116 .181(d) be deleted. The federal § 112(g) programprovides that nothing in Part 63 Subpart B, Requirements for Control Technology, shall prevent astate or local agency fromimposing more stringent requirements than those in the subpart. As the preamble explains, this language was included to clarify that the requirements of section 112(g) do not supersede any requirements that are more stringentthanthis rule. IfTNRCChas existing state HAPsrules that are more stringent than thefederal rules, thenit should identify those rules with specificity andexplain the need for such rules. Otherwise, TIPfears that this provision could be read by local authorities as authorizing case-by-case determinations by the local agency pursuant to § 382.113 of the Texas CleanAirAct. 19 . § 116.182: This provision contains incorrect terms andcites. TIPsuggests that the section be rewritten as follows: "Consistent. . . . the owner or operator of a proposed affected source (as defined in § 116

.15 ofthis title) shall submit apermit application . . ." Theterm"affected

AUS01 :133369

.1 111111 .1111BAKER & BOTTS L. L. P .



### Ms. Lisa Martin -6- April 20, 1998

source" encompasses both the construction and reconstruction of majorsources of HAPs, as those sources are defined under § 112(g) . Also, "an approved federal operating permit program" can be interpreted to mean the interimTitleVprogram . Ifthis is not TNRCC's intent, and a post-June 29, 1998 deadline will not subject affected sources to the EPA concurrence process, TIP suggests that TNRCCclarify the Title Vprogramto which is referring. 20 . § 116.182: This provision also contains incorrect references to "facility." TIP suggests rewriting this section as follows: "Proposed affected sources (as defined in § 116 .15 ofthis ~ public notice requirements contained in & 116 .130 ofthis title ti tle) shall comply with he (relating toApplicabilitYL 21 . § 116.312(a) : The current language ofthis section requires theexecutive director to provide written notice to the permit holder within 30 days ofreceipt ofa completedapplication for permit review

and renewal . The proposed revision does not specifically provide for this. Moreover, neither thecurrent nor the proposed language explains whether the TNRCCis referring to administratively complete or technically complete applications. Since this proposal is intended to simplify and clarify existing rules, it would be useful ifthere were an outlined procedure whereby TNRCCreviewed the renewal application and notified the applicant ofobvious, simple errors (e .g. failure to sign theapplication) so that such errors could be remedied in a timely fashion. The applicant could later be notified when the applicant can provide public notice. TIPsuggests revising § 116 .312(a) as follows: "The executive director shall mail awritten notice to the permit holder within 30 days after the receipt of the renewal application to confirm receipt of the application and identify administrative deficiencies ifany The annlicant shall have 30 days to resnond to a notice ofadm inistrative deficiencv The executive director shall notifytheapplicantwithin 30days after the a_pnlication is deemed administratively complete Within 30 davs after an application is deemed technically complete. the executive director shall provide written notice oftechnical completeness to the applicant and shall require the annlicant to provide public notice oftheapplication for _permit renewal in accordance with Subchapter Bofthis chapter (relating to New Source Review

Permits)." 22. § 116.610(d) : To avoid confusion, TIP suggests revising this language to delete the reference to "facility" as follows: "A ny nroject involving a proposed affected source (as

AUS01 :133369.1 111111 .1111BAKER & BOTTS L.L. P .

Ms. Lisa Martin -7- April 20, 1998 

### defined in § 116.15 of this title) shall complv with all applicable redu_irements under Subchapter Cofthis chapter . . . " 23. § 116

.621(2)(F) : For clarity, the phrase "is subject to" should be added as follows: "is subject to Subchapter Cofthis chapter . . ." This language is needed because the prefatory clause "any project which constitutes anew majorsource or major modification" applies to new source review, not § 112(g) sources. 24. § 116.711(3) : TNRCC's proposed language is confusing since all changes to facilities with HAPs could "concern" a MACT determination. TIP requests that this language be revised to make it clear thatthis language applies to majorsources of HAPs subject to Subchapter C . TIPsuggests thefollowing language: " For new facilities and proposed affected sources (as defined in § 116

.15 of this title) subject to Subchaoter Cof this chapter (relatingto Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA§ 112(,g) 40CFRPart 63)1, the use of BACT shall be demonstrated for the individual facility or affected source." 25. § 116.711(11) : Similar changes are needed to avoid the mistaken application of § 112(g) requirements tofacilities ratherthan majorsources. TIPsuggests revising § 116 .711 (11) as follows: "Federal standards of reviewfor constructed or reconstructed ma ' jor sources of hazardous air pollutants. Ifa Proposed source is an affected source (as defined in § 116 .15 of this title.), it shall comply with all applicable requirements under Subchapter Cof this chapter ,relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA § 112(g) 40 CFRPart 63)1. " 26 . § 116

.740(b) :, TIP requests that TNRCCnot use the ambiguous phrasing "that concerns" a MACT determination under § 112(g) . TIPsuggests revising § 116 .740(b) as follows: " Any person who applies for an amendment to aflexible permit to construct or reconstruct a major source of HAPs subjectto Subchapter Cofthischanter (relatingto HazardousAirPollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA . & 112(g140 CFR Part 63)) shall comply with the provisions in §§ 116.130-116.134. 116 .136, and 116.137 ofthis title."

AUS01 :133369.1 111111 .1111Richard L. White Vice President, EnvironmentalServices 

## TUSERVICES April 20, 1998 Ms. Lisa Martin Texas Natural Resource Conservation Commission Office ofPolicy and Regulatory Development MC205 P.O . Box 13087 Austin, TX 78711-3087 

## APR 2 2 1998

Re: Amendments to Chapter 116, Control of Air Pollution by Permits for New Construction or Modification (Rule Log No. 98001-116-AL) Dear Ms. Martin: Texas Utilities Services, Inc. submits the following comments on behalf of Texas Utilities Electric Company, Texas Utilities Fuel Company, Texas Utilities Mining Company, and ENSERCH concerning the Texas Natural Resource Conservation Commission's (T1vTRCC) proposed rule amending Chapter 116, Control of Air Pollution by Permits for New Construction or Modification as published in the Texas Register on March 20, 1998 on pages 2953-2984

. The principal business of the Texas Utilities Company System (hereinafter referred to as TU) is the generation and distribution of electrical energy and the transmission and distribution of natural gas in north, central, east, and west Texas to approximately onethird ofthe population and area oftheState. TU recommends thefollowing technical changes: Federal CleanAirAct Section 112(g,) Definitions Section 116

.15(7) - For purposes of maximum achievable control technology, thedefinition of "new source" should conform to that contained in Section 112(a) ofthe Federal CleanAir Act. Applicability 116 .110(d)(1) - The TNRCCshould consider extending the time period fornotification of ownership changes that involve multiple sites and permits. Changes to Facilities 116.116(e)(3)(C) and (E) - Forclarification and consistency, the term"effects screening level(s)" should be clearly defined.

Energy Plaza 1601 Bryan Street Dallas, Texas 75201-3411 (214) 812-4444 Fax (214) 812-4365

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Documentation and Notification ofChanges to Qualified Facilities 116.117(b)(5)(B) - The rule should provide guidance regarding the physical location at which an "effects screening level" is to be determined. Public Notification Format TU recommends modifyingthese proposed notification procedures to matchtheexisting procedures in the Operating Permit rule, Chapter 122. Applicability 116.180(a)(1)(B)(ii)(I) - Theterm"Toxics-best available control technology" (T-BACT) should be clearly defined. . 71hank you for the opportunity to comment. Sincerely,

Richard L. WhiteINDEX OF ORAL TESTIMONY

Reference Number Submitted bv

No oral comments were received

# EVALUATION OF

TESTIMONY

## Texas Natural Resource Conservation Commission INTEROFFICE MEMORANDUM

To: Commissioners Date: May 29, 1998 Thru: Eugenia K. Brumm, Ph.D.

Chief Clerk From : Beverly Hartsock, Deputy Director

Office of Policy and Regulatory Development Subject: Docket No. 98-0068-RUL. Consideration for adoption of repeals and amendments to

30 TAC Chapter 116, Subchapters A-D, F, and G, concerning Requirements for Control of Air Pollution by Permits for New Construction or Modification; and for revisions to the State Implementation Plan. Ifadopted, the repeals and amendments would implement the requirements of the Federal Clean Air Act, Section 112(g), 40 Code of Federal Regulations Part 63, concerning Hazardous Air Pollutants, and make general corrections and clarifications to Chapter 116. Revisions are also adopted to Subchapter B, Division 4, concerning Permit Fees. In addition, this action constitutes the commission's readoption of the rules contained in 30 TAC Chapter 116 in accordance with the General Appropriations Act, Article IX, Section 167, 75th Legislature, 1997. The proposal was published in the March 20, 1998, issue of the Texas Register (23 TexReg 2953)

. (JimDodds, Mark Gibbs) (Rule Log No. 98001- 116-AI) 

### What theAdopted Rules Would Do: Chapter 116contains the rules (in new Subchapter C) necessary to implement the requirements of the Federal Clean Air Act (FCAA), §112(g) and 40 Code of Federal Regulations (CFR) Part 63, concerning Hazaidous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources. The § 112(g) programrequires the Texas Natural Resource Conservation Commission (commission) to make case-by-case Maximum Achievable Control Technology (MACT) determinations for sources that become subject to the §112(g) programprior to the United States Environmental Protection Agency (EPA) promulgating a MACT that would apply to the.source. Changes have been made throughout Chapter 116in order to implement the new §112(g) program

. The operations certification currently required by § 116.110(b) and § 116.710(b) has been deleted. Section 116.110(e) and §116.710(c) are revised to reflect the recent revisions to the Texas Engineering Practice Act. Language is added to § 116.116(f) to allowthe use ofdiscrete emission reduction credits (DERCs) to exceed permit allowables under certain conditions.Commissioners

Page 2 May 29, 1998 

### Re: Docket No. 98-0068-RUL Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, §361 .102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply. Section 116.141(c)(1)(A), concerning Determination of Fees, is revised to address an interpretation problemwith the current rule. Section 116.750(b) is corrected to make it clear that the minimumfee for a flexible permit amendment is $450. The commission adopts the review of the rules contained in Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, in accordance with Article IX, §167, General Appropriations Act, 75th Legislature, 1997. The adopted rules also implement the commission's directive on regulatory reform . 

### Applicable Law

: The FCAA, §112(g), and 40 CFR Part 63, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources. The repeals, ame:,. . ats, and newsections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and ofthe TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA ; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes ofthe TCAA; §382.021 and §382.022, whichprovide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new source review

authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance offederal operating permits and appeal ofdelays; §382.055,Commissioners

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### Re: Docket No. 98-0068-RUL which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial ofapplications for permits ifassistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5 .115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5:234, which provides for applications and other documents; §5.351, which provides forjudicial reviewofcommission acts; §5.355, which provides for appeal of district court judgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. Reason Rules Are Needed: The newSuhch3 : ~er C is intended to meet the requirements of Title III of the 1990 FCAA concerning K. .,is Air Pollutants (HAP), § 112(g), Modifications, as set forth in 40 CFR63, §§63.40-63 .44. 40CFRPart 63, Subpart B, requires the commission to make case-by-case MACT determinations for affected sources (as defined in §116.15(1) concerning Section 112(g) Definitions) that become subject to §112(g) prior to the EPApromulgating a MACT that would apply to the affected sourc°, . 40 CFR 63, §63.42 allows states to rely on existing newsource review(NSR) permitting programs to implement the requirements of §112(g) if the NSR program meets the requirements of that subpart. 40CFRPart 63, §63.40(b), Overall Requirements, says in part that the "requirements of §§63.40 through 63.44 of this subpart apply to any owner or operator who constructs or reconstructs a major source of hazardous air pollutants after the effective date of the section 112(g)(2)(B) (as defined in §63.41) and the effective date of a title V permit programin the State. . . ." The commission interpreted §63.40(b) as containing a two-part test regarding the effective date of 40 CFR Part 63, Subpart B: the §112(g) program would not be effective in a state until June 29, 1998, passed and a state had an approved federal operating permit program . Atthe time the revisions to Chapter 116were proposed, the commission understood thatthe interim approval for the source category limited programwas no longer considered to be effective by the EPA (that programwas approved onJune 25, 1996 (61 FR32693)) . The EPAhad informed the commission that due to the extensive revisions to Chapter 122 in November 1997, it no longer considered the operating permit programto be approved in Texas. Thus, since §63.40(b) has aCommissioners

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### May 29, 1998 Re: Docket No. 98-0068-RUL two-part test, the commission believed that the § 112(g) programwould not be effective in Texas until June 29, 1998, passed and the EPA approved the November 1997 revisions to Chapter 122. Based on comments submitted by the EPA in response to the proposed rules, and in discussions with EPA Region VI staff, the commission now understands that EPAhas reconsidered its position concerning the source category limited programand nowconsiders it to be the approved federal operating permit programfor the state. The EPA believes that once a state has an approved program (whether it is full, interim, or source category limited), then that is the approval that triggers the effective date for §112(g) . Thus, regardless of whether a source is subject to either the full or interimprogram, once the interimprogramwas approved in June 1996, that is the approval date that is used to trigger the effective date provisions of §63.40(b) . The commission has revised § 116.180(b) and § 116.182 to make it clear that the § 112(g) program__ will be effective for all affected sources in Texas on or after June 29, 1998. Therefore, on or after June 29, 1998, if a source makes a change subject to Subchapter C, it must apply to the commission for a case-by-case MACT determination under § 116.182, concerning Application, regardless of whether the source is subject to the interim or full operating permit program . Administratively complete applications that are submitted prior to June 29, 1998, will not be subject to the requirements ofSubchapter C . Section 116.180(a)(1)(B)(vi) was revised to include a reference to "affected source" and to correct a typographical error that referred to the "executive director" twice in one sentencP. All case-by-case MACT determinations are subject to the public notice requirements of Subchapter B. Thus, affected sources will not be able to use a Chapter 106 exemption or an existing Subchapter F standard permit. Currently, none of the existing standard permits meet the requirements of Subchapter C. Future standard permits may be developed that meet the criteria of Subchapter C. Affected sources will not be able to use § 116.116(e), concerning changes to qualified facilities, because §63.43(d)(1) provides that the MACT emission limitation "shall not be less stringent than the emission control which is achieved in practice by the best controlled similar soiurce, as determined by 'the permitting authority ." The commission believes that the use of best available control technology (BACT) as required by Chapter 116 will, in most cases, meet the level of control contemplated by §63.43(d)(1) . Section 116.116(e) allows for the use often-yearold BACT for qualified facilities. In some cases, ten-year old BACT may not necessarily be equivalent to today's BACT. Ifacase-by-case MACT determination is more restrictive than BACT, the affected source will be required to meet the MACT requirements. An additional prohibition on the use of § 116.116(e) is the requirementfor case-by-case MACT determinations to go through public notice. Affected sources will have limited use of flexible permits under Subchapter G . Currently, flexible permits allow

for control that exceeds BACT on one facility in lieu of installing controls on other facilities. Section 112(g) and 40 CFR Part 63, Subpart B, require the case-by-case MACTCommissioners

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### May 29, 1998 Re: Docket No. 98-0068-RUL determination to be applied to the specific affected facilities. Therefore, §116.711(3) was revised to indicate that BACT shall be applied to specific facilities that must comply with Subchapter C. As long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with determinations made under Subchapter C. Again, if a case-by-case MACT determination is more restrictive than BACT, the source will be required to meet the MACT level ofcontrol . The executive director of the commission certifies that the rules as adopted satisfy all applicable requirements established by 40 CFR §§63.40-63.44 for a §112(g) program . As outlined in the EPA preamble to the final rules implementing § 112(g) (see 61 FR 68390), the programis not required to have EPA approval before taking effect. The rules have been revised to delete the operations certification requirements contained in- §1 16.110(b) and §116-.710(b) in order to eliminate unnecessary reporting and paperwork based on recommendations from the staff of the regional offices and the Office of Compliance and Enforcement . Section 116.111(2)(F), concerning national emissions standards for hazardous air pollutants for source categories (commonly referred to as MACTS), is revised to reference the requirements of Chapter 113, Subchapter C. The proposed language is modified by the commission to clarify that permit applications must ~--nonstrate compliance with all applicable MACTS. The language, as proposed, may be inte .p. s as saying that applicants would not have to show compliance with all MACTS, regardless of whether or not the MACTS are listed in Chapter 113, Subchapter C . The proposed language was also in §116.311(a)(4), concerning Permit Renewal Application, §116.610(a)(5), concerning Applicability (for standard permits), §116.620(a)(16), concerning Installation and/or Modification of Oil and Gas Facilities, and §116.711, concerning Flexible Permit Application. This correction will be made in all of these sections. Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, §361 .102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance ofan Established Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply. The current § 116.112(b)(4) contained a typographical error that would have allowed the construction of any new commercial hazardous waste management facility or units of a facility to be located within 2,640feet ofany specified off- site receptor. The statutory provision prohibits the construction of a newcommercial hazardous waste management facility that would be within 2,640feet of any specified off-site receptor. Subsection (f) is added to § 116.116 to authorize the use of DERCs to exceed permit allowables under certain conditions. The commission recently adopted a revised emissions banking and trading rule (22 TexReg 12517) to allowa source to meet emission control requirements by purchasing and using credits generated by another source which has reduced its emissions belowCommissioners

Page 6 May 29, 1998 

### Re: Docket No. 98-0068-RUL the level required by rule or permit. The adopted language of § 116.116(f) allows the use of credits to authorize certain exceedances of permit allowables, and is consistent with existing authorization in 30 TAC Chapter 101 . . Section 116.141(b)(1) is revised to specify that any application for newor modified facilities controlled by the federal government will be charged a fee of $450 . The existing provision qualifies the fee requirement for federal government applications submitted after January 1987. Since all of the pre-1987 applications fromthe federal government have been acted on by the commission, this provision is no longer necessary. Section 116.141(c)(1)(A) is revised to address an interpretation problemwith the current rule. As currently written, the rule has confused some applicants and staff concerning the computation of direct costs for facilities that are no longer permitted (e.g., the permit expired and was not_ renewed) . A historical reviewof this section indicates that the original fee language was added prior to any requirements for renewal (and expiration) of permits. The confusion centers on whether "permitted" means currently permitted or ever permitted regardless of current status. Neither ofthese two possible interpretations has been consistently applied and the adopted language will rectify this situation. The staff does not believe that it is appropriate to allowthe direct costs of process and control equipment of a facility to be excluded if the facility once had a permit, but no longer does. Allowing this exclusion would promote the argument that higher renewal fees could be avoided in favor of a minimumnewpermit fee. It is not expected that this change will result in significantly higher fees and ensure that all applications are reviewed consistently for fee determinations . Section 116.750(b) is revised to clarify that applications for flexible permit amendments are subject to a minimum

fee of $450

. This is not a change to the existing fee structure; rather, it is to correct an oversight to include the $450 minimum fee. The $450minimum fee has been applied, when applicable, to all applications for flexible permit amendments. This correction will make this section consistent with Subchapter B, regarding fees for NSRpermit amendments. Public Conunent: Comments were received fromthe EPA, the Texas Industry Project (TIP), and TU Services (TU) . The EPAcommented that the effective date of the §112(g) programin Texas is June 29, 1998, and not the proposed date of June 29, 1998, and the date of approval of a federal operating permit programin Texas. EPA also commented that in some cases a MACT reviewcould result in requirements that are more restrictive than BACT. Ifso, the MACT requirements would have to be applied. The staff revised the rule to address both of the EPA's comments. The TIP had many comments concerning the proposed regulatory reform changes and concerning the implementation of the §112(g) program . The TIP commented that the commission should select whatever effective date that was necessary to ensure that the commission, and not the EPA,Commissioners

Page 7 May 29, 1998 

### Re: Docket No. 98-0068-RUL implemented the program . The commenter also suggested that the rules be revised to consistently refer to "affected sources" for the purpose of identifying sources that are subject to the new Subchapter C

. Other comments included concerns about some ofthe conditions incorporated from 40CFRPart 63, Subpart B . The TIP is concerned that the incorporation ofthese sections (or parts of certain definitions) might result in Subchapter C being more restrictive than the requirements of the federal §112(g) program . The staff revised the rules to include many of the regulatory reformsuggestions made by the TIP. The neweffective date ofthe §112(g) programis consistent with the TIP's desire to have the commission implement the program . The staff did not make all of the changes concerning the implementation of the § 112(g) program . Several of the TIP's suggested changes would result in revisions to language actually incorporated from40 CFRPart 63, Subpart B. The staff did not believe it would be appropriate or necessary to revise language that was incorporated fromthe federal rule. TU had several conunents concerning the use of the term "effects screening level" (ESL) throughout Chapter 116. The staffdid not make changes to the rules based on these comments, since the guidance document "Modeling and Effects ReviewApplicability" (February 1998 draft) already includes information about the ESLs. The response to comments includes a reference to this draft guidance document. TU made two comments that were beyond the scope of the proposed rule: 1) a request to use the public notice process that is used by 30 TAC Chapter 122, Federal Operating Permits; and 2) a request to change the time period for notification of ownership changes that involve multiple sites and pen-r- TU also asked that terms used in the §112(g) programbe used consistently with federal lau. :'he commission concurs, and does not intend to use federal terms in a manner that is inconsistent with federal law . Takings Impact Assessment: The staffdeveloped a takings impact assessment and believes there will be no burden on private real property because this rulemaking is primarily intended to implement the requirements of §112(g) and of regulatory reform . The remaining changes are being made to clarify existing rule language. The adopted rules will not make existing requirements any less stringent, with the exception of the changes to §116.116(t), concerning DERCS, because facilities must still meet the requirements ofChapter 116. The adopted rules will achieve their stated purpose by implementing the requirements of § 112(g) and of regulatory reform . Regulatory Impact Analysis: The adopted rules have been reviewed in light of the regulatory analysis requirements of Texas Government Code (the Code), §2001 .0225, and they are not subject to §2001 .0225 because they do not meet the definition of a "major environmental rule" as defined in the Code. The portions of the rules implementing the FCAA, § 112(g) do not meet the definition because the obligations have already been established by federal lawand thus are not newrequirements . The otherCommissioners

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### May 29, 1998 Re: Docket No. 98-0068-RUL portions of the rules correcting typos, clarifying language, and instituting regulatory reform changes are not of a magnitude to affect the economic factors in a material way. Coastal Management ProgramConsistency Review : The rules are subject to the requirements of the Coastal Management Program (CMP) . The adopted rules have been found to be consistent with the applicable goals and policies of the CMP. Affected Agency Programs: The NSR Permits Division is affected because they are responsible for issuing preconstruction authorizations for any newfacility or modification of an existing facility that may emit air_ contaminants. The -NSR Permits Division will be responsible for the implementation and development of the §112(g) program . The impact of this programis expected to be minimal since the programcan be implemented using the current permitting process, with some modifications, as required by Chapter 116. Agency Contacts: JimDodds, Air Policy and Regulations Division, 239-0970 Mark Gibbs, New

Source ReviewPermits .,,on, 239-1297 Susan Owen, Legal Division, 239-0576 Liz,a Tvlartiii, Texas Register Team, 239-1956 

### cc: 7 copies to the Chief Clerkfor distribution.EVALUATION OF TESTIMONY

The Texas Natural Resource Conservation Commission (commission) adopts the repeal of §§116.10, 116.11,116 .13,116.14,116.110-116.112,116.114-116.118,116.120-116.126,and 116.310-116.314 and new§§116.10, 116.11, 116.13-116.15, 116.110-116.112,116.114-116.118,116.120-116.126, 116.180-116.183, and 116.310-116.314, concerning Control of Air Pollution by Permits for New Construction or Modification. The commission also adopts amendments to §§116.130-116.134, 116.136, 116.137, 116.140, 116.141, 116.143, 116.160, 116.161, 116.170, 116.174, 116.610, 116.611, 116.614, 116.615, 116.617, 116.620, 116.621, 116.710, 116.711, 116.714, 116.715, 116.721, 116.730, 116.740, and 116.750, concerning Control of Air Pollution by Permits for New Construction or Modification. Sections 116.14, 116.15, 116.110, 116.111, 116.115-116.117, 116.121, 116.122, 116.133, 116.137, 116.141, 116.180, 116.182, 116.183, 116.311, 116.312, 116.610, 116.620, 116.621, 116.711, and 116.740 are adopted with changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2953) . Sections 116.10, 116.11, 116.13, 116.112, 116.114, 116.118, 116.120, 116.123-116.126,116.130-116.132,116.134,116.136,116.140, 116.143, 116.160, ' 116.161, 116.170, 116.174, 116.181, 116.310,116.313,116.314,116.611, 116.614, 116.615, 116.617, 116.710, 116.714, 116.715, 116.721, 116.730, and 116.750and the repeals are adopted without changes and will not be republished.The commission adopts the reviewof the rules contained in 30TAC Chapter 116, concerning Control

of Air Pollution by Permits for New Construction or Modification. This reviewwas adopted in accordance with Article IX, § 167, General Appropriations Act, 75th Legislature, 1997.

EXPLANATION OF ADOPTEDRULES. The commission adopts a new§ 116.15 and a new Subchapter C, §§116.180-116.183, for the purpose of implementing a programto meet the requirements of Title III of the 1990 Federal Clean Air Act (FCAA) concerning Hazardous Air Pollutants, § 112(g), Modifications, as set forth in 40 Code of Federal Regulations (CFR) Part 63, §§63.40-63.44, as amended December 27, 1996, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) . Section 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of a case-by-case maximum achievable control technology (MACT) if a major source of hazardous air pollutants (HAPs) is constructed or recor.,;tructed before the United States Environmental Protection Agency (EPA) issues a MACT standard or air toxics regulation for that particular category ofsources or facilities. Changes were made throughout the rules as the result of ongoing efforts by the commission for regulatory reform

. These changes are for purposes of simplification and clarification only and do not involve substantive changes in the requirements of this chapter . In order to simplify the regulatory reformeffort, the commission proposed the repeal of §§116.10, 116.11, 116.13, 116.14, 116.110- 116.112, 116.114-116.118, 116.120-116.126, and 116.310-116.314 (these sections are being adopted by the commission with the changes made under regulatory reformand in response to connnents) . Byrepealing these sections, the commission was able to revise the language without having to make

extensive use ofthe editing requirements ofthe Texas Register. Changes proposed in the Texas Register must be shown by using underlining and bracketing. The commission was concerned that significant revisions to the rules would be difficult for the regulated community and the public to read and comment on if the underlining and bracketing editing marks were used. In general, these changes involve using shorter sentences, limiting each citation to one main concept, reordering requirements into a more logical sequence, and using more commonplace terminology. Several suggestions of alternative language fromthat proposed by the commission were received. This preamble will discuss any changes to the rule language in the appropriate sections of the preamble. Although sections of Subchapter F, concerning Standard Permits, and Subchapter G, concerning Flexible Permits, were revised, these subchapters were not included in this extensive regulatory reformeffort . In addition, not all of Subchapter B was included. These subchapters and remaining sections will be reviewed at a later date for purposes of regulatory reform . The division related to nonattairunent permitting and Subchapter E related to emergency orders have not been included in this rulemaking, since they are expected to be revised in subsequent rulemakings that are on a different schedule. Those sections will be reviewed for regulatory reform purposes at that time. ' 

### Thefollowing paragraphs describe the adopted amendments to Chapter 116by subchapter.SUBCHAPTER A : DEFINITIONS. Section 116.10, General Definitions, §116.11, Compliance History Definitions, § 116.13, Flexible Permit Definitions, and § 116.14, Standard Permit Definitions, were included in the regulatory reformreview . These sections contain definitions that are used throughout Chapter 116 and in specific subchapters of Chapter 116. The commission is readopting the definitions because they are necessary for the implementation ofthe requirements ofChapter 116. The definitions provide information that assists the regulated community and the public in fully understanding the requirements of the subchapters to which they are related. The commission amended Subchapter A by deleting those definitions that are identical or essentially the same as those in 30TAC Chapter 101, concerning General Rules. As a result, in Chapter 116, the definitions of "de minimis impact" and "emissions unit" were deleted to eliminate redundancy.

In addition, the commission adopted amendments to the definitions that reference exemptions from permitting by referring to 30TAC Chapter 106, concerning Exemptions fromPermitting. These references were proposed in response to the recent revision to Chapter 116 that moved exemptions to Chapter 106. Correct references to the newexemption chapter, or specific sections within that chapter, have been made throughout the rules. The definition of "federally enforceable" is revised to include the requirements of 30TACChapter 113, Subchapter C, concerning National Emissions, Standards for Hazardous Air Pollutants for Source Categories (FCAA § 112, 40 CFRPart 63) . These standards (commonly referred to as MACTS) areincorporated by reference into Chapter 113, Subchapter C and this reference is being included simply

to direct the reader to the correct chapter of the commission's rules. The definition of "lead smelting plant" is revised to correct an internal conflict. The former definition stated that processing may include "oxidizing into lead oxide." This conflicts with the last sentence of the definition, which says that a facility that remelts lead bars or ingots is not a lead smelting plant. The conflict arises because lead oxide is only made by melting lead ingots. Finally, the commission adopted new§116.15, concerning Section 112(g) Definitions. The definitions . contained in § 116.15 will be used in conjunction with Subchapter C, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63) . The definitions in §116.15 are essentially the same as those contained in 40 CFR 63, §63.41, concerning Definitions under Subpart B, Requirements for Cot ^l Technology (see 61 FR 68399) . SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS. The sections in Subchapter B, New Source ReviewPermits, Division 1 : Permit Application (§116.110, Applicability, §116.111, General Application, § 116.112, Distance Limitations, § 116.114, Application ReviewSchedule, §116.115, General and Special Conditions, § 116.116, Changes to Facilities, § 116.117, Documentation and Notification of Changes to Qualified Facilities, and § 116.118, Pre-change Qualification), were included in the regulatory reform changes. The commission is readopting these sections because they are necessary in order to implement the new source reviewpermitting requirements of the Texas Clean AirAct (TCAA) . In general, these rules describe what a person must do in order to construct a new

facility or modify an existing facility. The application and distance limitation sections contain the requirements that must be addressed in applications and provide guidance for how applications will be reviewed by the executive director. The executive director is authorized to include general and special conditions in all permits and the rule contains general conditions that apply to all holders of permits, special permits, standard permits, and special exemptions. The sections in Subchapter B, New Source ReviewPermits, Division 2: Compliance History, (§116.120, Applicability, §116.121, Exemptions, §116.122, Contents of Compliance History, §116.123, Effective Dates, §116.124, Public Notice of Compliance History, §116.125, Preservation of Existing Rights and Procedures, and §116.126, Voidance of Permit Applications), were included in the regulatory reformchanges. The commission is readopting these provisions since they are necessary to implement the TCAArequirements in §382.0518(c) when reviewing applications for initial permit issuance, amendment, or renewal . The sections describe when such a reviewwill be required as well as provide direction for how that reviewwill be conducted and what must be included in the review .

The commission adopted amendments to § 116. 110, concerning Applicability, to reference standard permits that currently exist in 30TAC Chapter 321, Subchapter K, concerning Confined Animal Feeding Operations, 30 TAC Chapter 332, concerning Composting; and 30TAC Chapter 330, Subchapter N, concerning Landfill Mining. This amendment provides clarification regarding all the standard permits (for air emissions) that are currently available.The operations certification requirements contained in the existing § 116.110(b) have been deleted as a

result of recommendations made by the commission's regional offices and the Office of Compliance and Enforcement . The operations certification requirement created unnecessary reporting and paperwork and can be implemented more effectively through new source review(NSR) permits on a case-by-case basis. The operations certifications were created for the purpose of implementing Texas Health and Safety Code, §382.0518(f), which gives the commission the authority to .require a demonstration fromowners and operators that a facility as constructed complies with the terms of the preconstruction permit and that the operation of the facility will not violate any rules or regulations of the commission. The statutory language allows the commission flexibility to determine the time and manner ofsuch demonstration. The rule change does away with the requirement to submit the two forms to the agency which have been found to be unnecessary in practice. The permit holder would not be relieved fromthe underlying requirements that are the subject of the forms (to have constructed in compliance with their preconstruction permits and to operate in compliance with commission r>>- and regulations.) These requirements are established by rule in §116.115(b)(2)(I)

. The new§116.110(c), concerning Exclusion, makes it clear that affected sources (as defined in §116.15(1), concerning Section 112(g) Definitions) that are subject to Subchapter C are not authorized to use an exemption under Chapter 106, or an authorization under §116.116(e), concerning chainges to qualified facilities. Affected sources subject to Subchapter C can use standard permits under Subchapter F of this chapter ifthe terms and conditions of the standard permit meet the criteria of Subchapter C

. As currently written, none ofthe existing standard permits meet the criteria of Subchapter C (e .g., there is no requirement for public notice) . These changes were made to ensurethat applicants obtain the appropriate authorization under Subchapter C and are described in more detail

in the section ofthe preamble addressing Subchapter C.

Anew§ 116.110(d), concerning change in ownership (formerly § 116.110(c)) is adopted. This subsection was revised to specify that newowners must submit information regarding the date of the change in ownership, the name of the new owner, a contact person for the newowner, and the address and phone number of the newowner. The commission adopts a new§116.110(e) to reflect the recent revisions to the Texas Engineering Practice Act (TEPA) which nowrefers to "licensed" engineers instead of "registered" engineers. The correct name of the Texas Board of Professional Engineers is included. The rule is revised to make clear that for projects with a capital cost above $2 million, the project must be submitted under the seal of a Texas licensed professional engineer. Section 116.111(2)(E), concerning national emissions standards for hazardous air pollutants for source categories (commonly referred to as MACTs), is revised to reference the requirements of Chapter 113, Subchapter C

. The proposed language is modified by the commission to clarify that permit applications must demonstrate compliance with all applicable MACTs. The language, as proposed, may be ' interpreted as saying that applicants would not have to show compliance with all MACTs, regardless of whether or not the MACTs are listed in Chapter 113, Subchapter C. The proposed language was also in §116.311(a)(4), concerning Permit Renewal Application, §116.610(a)(5), concerning Applicability (for standard permits), §116.620(a)(16), concerning Installation and/or Modification of Oil and GasFacilities, and §116.711, concerning Flexible Permit Application. This correction has been made in all

of these sections. Changes are adopted to implement FCAA, §112(g) and 40 CFRPart 63, Subpart B, requirements in §116.111(2)(K), concerning general application, to ensure that applicants submit information in permit applications that demonstrates that the requirements of Subchapter C are met . Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, §361 .102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply. The former §116.112(b)(4) contained a typographical error that would have allowed the construction of any new commercial hazardous waste management facility or units of a facility to be located within 2,640feet ofany specified off-site receptor. The statutory provision prohibits the construction of a newcommercial hazardous waste management facility that would be within 2,640 feet of any specified off-site receptor. Section 116.115(c), concerning special conditions, is revised to include a reference to the new requirements in Subchapter C . This change allows the executive director to include a special ccjndition in permits requiring permit holders to obtain prior written approval before constructing a facility using a standard permit under Subchapter F or an exemption under Chapter 106, ifthe change would cause the facility to become subject to Subchapter C . During the administrative and technical review, the executive director may determine that the proposed change will trigger one or more ofthe prohibitionslisted under §116.115(B)(i) and (ii) and the request for authorization under Subchapter F or Chapter

106 will be denied. Section 116.116(b)(3) is added to require permit amendments that concern a change subject-to Subchapter C to comply with the provisions for public notice and comment under Subchapter B of this chapter. This change was made because 40CFRPart 63, §63.43(c)(2)(ii), requires case-by-case MACT determinations to be subject to public notice. Subsection (f) was added to § 116.116 to authorize the use of discrete emission reduction credits (DERCs) to exceed permit allowables under certain conditions. The commission recently adopted a revised emissions banking and trading rule (22TexReg 12517) to allowa source to meet emission control requirements by purchasing and using credits generated by another source which has reduced its emissions belowthe level required by rule or permit. The revised banking rule allows for the use of DERCs to exceed permitted allowable emission levels by a certain amount once within any 24-month period. In ozone nonattainment areas, this exceedance must be 25 tons or less of nitrogen oxides or five tons or less of volatile organic compounds. In other areas, the amount may not exceed the prevention of significant deterioration significance levels as provided in 40 CFR §52.21(b)(23) . In addition to other requirements, these uses must be approved by the executive director and may riot cause or contribute to a condition of air pollution. The adopted language of §116.116(t) allows the use ofcredits to authorize certain exceedances of permit allowables, and is consistent with existing authorization in Chapter 101 .

10Section 116.117(a)(4), concerning Documentation and Notification of Changes to Qualified Facilities,

is revised to require persons making changes to qualified facilities under § 116.116(e) to maintain documentation which demonstrates that the project will comply with Subchapter C. A minor amendment was made to §116.118 that added the word "or" in §116.118(a)(1) . This was done to correct a previous typographical error. The commission amended § 116.130(a), concerning applicability of public notification and comment procedures, by adding a reference to permit renewals. Applications for permit renewals are already required to go through public notice. This change merely includes a reference to renewals in this section. Subsection (a) was revised to more closely track TCAA, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review ; Hearing, by including the phrase "or to be located." This revision does not change the current requirement to publish notice in a newspaper of general circulation in the municipality where the facility is located, or to be located. Section 116.130 was also revised by adding a new

subsection (c) that requires applications subject to reviewunder Subchapter C to go through public notice. All applications subject to the requirements of FCAA, §112(g) and 40CFR Part 63, Subpart B, whether initial applications or amendments to existing case-by-case MACT determinations, must go through the public notice process. This is because 40CFR Part 63, Subpart B, §63.43(c)(2)(ii), requires that all such determinations be subject to public notice. To assist in the implementation of the commission's directive to facilitate and improve the public notice process, the phone number ofthe appropriate commission office to contact for further information will 

### 11now be included as a part of the public notice required in §116.132(a)(11) and §116.133(a)(6) rather than the phone number of the appropriate commission regional office. Section 116.136(a) was revised to correctly refer to the requirement that the executive director make a preliminary determination to issue or deny a permit subject to the FCAA, Title I, Parts C or Dor to 40 CFR §51 .165(b) or the availability ofthe preliminary analysis that is required for other permitting actions. This change makes § 116.136(a) consistent with the requirements of § 116.132(a)(6) and (7), concerning public notice format . The commission amended § 116.140, concerning Applicability of Permit Fees, by deleting the reference to operating permits and standard exemptions, because these types of authorizations are no longer included in Chapter 116. The reference to operating permits was deleted because the commission no longer issues state operating permits apart froma state construction permit. This should not be confused with federal operating permits issued under 30TAC Chapter 122, concerning Federal Operating Permits. Exemptions frompermitting are nowcontained in Chapter 106.

Section 116.141(b)(1) was amended to specify that any application for new or modified facilities controlled by the federal government will be charged a fee of $450. The former provision qualified the fee requirement for federal government applications submitted after January 1987. Since all ofthe pre1987 applications fromthe federal government have been acted onby the commission, this provision is no longer necessary.



### 12Section 116.141(c)(1)(A) is revised to address an interpretation problemwith the current rule. As it

was written, the rule confused some applicants and staff concerning the computation of direct costs for facilities that are no longer permitted (e .g., the permit expired and was not renewed) . Ahistorical reviewof this section indicated that the original fee language was added prior to any requirements for renewal (and expiration) of permits. The confusion centered on whether "permitted" meant currently permitted or ever permitted regardless of current status. With two possible interpretations, neither has been consistently applied and the adopted language rectifies this situation. The commission does not believe that it is appropriate to allowthe direct costs of process and control equipment of a facility to be excluded if the facility once had a permit but no longer does. Allowing this exclusion would promote the argument that higher renewal fees could be avoided in favor of a minimumnew permit fee. It is not expected that this change will result in significantly higher fees and it will ensure that all applications are reviewed consistently for fee determinations . The commission amended § 116.143 by correcting the commission mailing address where permit fees are submitted. The previous mailing address was a street address rather than a post office box. SUBCHAPTERC: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, §112(g), 40CFRParf 63) . The newSubchapter C is intended to meet the requirements of Title III ofthe 1990 FCAAconcerning Hazardous Air Pollutants (HAPs), §112(g), Modifications, as set forth in 40 CFR 63, §§63.40-63.44, as amended December 27, 1996. Section 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of case-by-case MACT if a major source is constructed or 

### 13reconstructed before EPA issues a MACT standard or air toxics regulation for that particular category

of sources or facilities. 40CFR Part 63, Subpart B, requires the commission to make case-by-case MACT determinations for affected sources (as defined in §116.15(1), concerning Section 112(g) Definitions) that become subject to §112(g) prior to the EPApromulgating a MACT that would apply to the affected source. 40 CFR 63, §63.42, allows states to rely on existing NSRpermitting programs to implement the requirements of § 112(g) if the NSRprogrammeets the requirements of that subpart. The commission believes that the adopted revisions to Chapter 116concerning § 112(g) will successfully implement the requirements of §112(g) and 40 CFRPart 63, Subpart B.

40 CFR Part 63, §63.40(b), Overall Requirements, says in part that the "requirements of §§63.40 through 63.44 ofthis subpart apply to any owner or operator who constructs or reconstructs a major source of hazardous air pollutants after the effective date ofthe section 112(g)(2)(B) (as defined in §63.41) and the effective date of a title V permit programin the State. . . ." The commission interpreted §63.40(b) as containing a two-part test regarding the effective date of 40 CFR Part 63, Subpart B : the § 112(g) programwould not be effective in a state until June 29, 1998, passed and a state had an approved federal operating permit program . At the time the revisions to Chapter 116 were proposed, the commission understood that the interim approval for the source category limited programwas no longer considered to be effective by the EPA (that programwas approved on June 25, 1996 (61 FR32693) . The EPAhad informed the commission

14that due to the extensive revisions to Chapter 122 in November 1997, it no longer considered the

operating permit programto be approved in Texas. Thus, since §63.40(b) has a two-part test, the commission believed that the § 112(g) program would not be effective in Texas until June 29, 1998, passed and the EPA approved the November 1997 revisions to Chapter 122. . Based on comments submitted by the EPA in response to the proposed rules, and in discussions with EPA Region VI staff, the commission nowunderstands that EPA has reconsidered its position concerning the source category limited programand now considers it to be the approved federal operating permit programfor the state. The EPA believes that once a state has an approved program (whether it is full, interim, or source category limited), then that is the approval that triggers the effective date for § 112(g) . Thus, regardless ofwhether a source is subject to either the full or interim program, once the interimprogram was approved in June 1996, that is the approval date that is used to trigger the effective date provisions of §63.40(b) . The commission has revised § 116.180(b) and § 116.182 to make it clear that the § 112(g) programwill be effective for all affected sources in Texas on or after June 29, 1998. Thereafter, if a source makes a change subject to Subchapter C, it must apply to the commission for a case-by-case MACT determination under § 116.182, concerning Application, regardless of whether the source is subject to the interimor full operating permit program . Administratively complete applications that are submitted prior toJune 29, 1998, will not be subject to the requirements of Subchapter C . Section 116.180(a)(1)(B)(vi) was revised to include a reference to "affected source" and to correct a typographical error that referred to the "executive director" twice in one sentence. 15All case-by-case MACT determinations are subject to the public notice requirements of Subchapter B.

Thus, affected sources will not be able to use a Chapter 106exemption or an existing Subchapter F standard permit . Currently, none ofthe existing standard permits meet the requirements of Subchapter C . Future standard permits may be developed that meet the criteria of Subchapter C. Affected sources will not be able to use §116.116(e), concerning changes to qualified facilities, because §63.43(d)(1) provides that the MACT emission limitation "shall not be less stringent than the emission control which is achieved in practice by the best controlled similar source, as determined by the permitting authority." The commission believes that the use of best available control technology (BACT) as required by Chapter 116 will, in most cases, meet the level of control contemplated by §63.43(d)(1) . Section 116.116(e) allows for the use often-year old BACT for qualified facilities. In some cases, ten-year old BACT may not necessarily be equivalent to today's BACT. If a case-by-case MACT determination is more restrictive than BACT, the affected source will be required to meet the MACT requirements. An additional prohibition on the use of §116.116(e) is the requirement for caseby-case MACT determinations to go through public notice. Affected sources will have limited use of flexible permits under Subchapter G. Currently, flexible permits allowfor control that exceeds BACT on one facility in lieu of installing controls on othei facilities. Section 112(g) and 40 CFR Part 63, Subpart B, require the case-by-case MACT determination to be applied to the specific affected facilities. Therefore, §116.711(3) was revised to indicate that BACT shall be applied to specific facilities that must comply with Subchapter C. As long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible 

### 16permits in conjunction with determinations made under Subchapter C. Again, if a case-by-case MACT

determination is more restrictive than BACT, the source will be required to meet the MACT requirements. In §116.181, concerning Exclusions, the commission adopts the same set of exclusions that are provided in 40CFR 63, §63.40(c)-(f) . The commission has determined that in order to provide a programconsistent with the requirements of 40 CFRPart 63, §§63.40-63.44, the same set of exclusions should be provided. In general, if the owner or operator wants to construct or reconstruct an affected source (as specified in §116.180(a)(1) and (2), concerning Applicability), then prior to that construction or reconstruction, the owner or operator must apply to the commission for a case-by-case MACT determination under § 116.182, concerning Application. The application must contain the information required by the commission as provided in §116.111, concerning General Application. In addition, the application must specify the emission controls that will ensure that MACT will be met. Finally, the application for the proposed constructed or reconstructed affected source must undergo the public notice requirements required by §116.130, which includes a 30-day public comment period and opportunity for a contested case hearing. After fully considering public comments and the results of any hearing, the conuriission would then issue (or deny) a permit, or approve a permit amendment, authorizing the construction or reconstruction ofthe affected source. The case-by-case MACT determination codified in a permit issued under Chapter 116 would become an applicable requirement ofChapter 122 after satisfying the

17appropriate operating permit revision process and would be included as a condition in an operating

permit. The executive director of the commission certifies that the rule as adopted satisfies all applicable requirements established by 40CFR §§63.40-63.44 for a §112(g) program . As outlined in the EPA preamble to the final rules implementing §112(g) (see 61 FR 68390), the programproposed is not required to have EPA approval before taking effect. SUBCHAPTER D: PERMIT RENEWALS. The sections in Subchapter D (§116.310, Notification of Permit Holder, §116.311, Permit Renewal Application, §116.312, Public Notification and Comment Procedures, §116.313, Renewal Application Fees, §116.314, ReviewSchedule) were included in the regulatory reformchanges. The commission is readopting these sections because they implement the TCAArequirements in §382.055, concerning renewals of NSRpermits. The sections include the process for notifying permit holders that their permits are due for renewal and they contain the requirements for renewal fees and the reviewschedule for a renewal . The contents of a renewal application are described as well as the requirements for public notice of renewals.

Section 116.311(5) is added to include the requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of Subchapter C ofthis chapter.Section 116.314, concerning ReviewSchedule, is amended to refer to the correct chapters of the

commission's regulations concerning contested case hearings. SUBCHAPTER F: STANDARD PERMITS. The commission adopts the new§116.610(d) to clarify that facilities subject to Subchapter C of this chapter are not eligible for a standard permit under Chapter 116, unless the particular standard permit's terms and conditions meet the requirements of Subchapter C. This is because 40CFR Part 63, §63.43(c)(2)(ii), requires all case-by-case MACT determinations to be subject to public notice. Section 116.614, concerning Standard Permit Fees, was amended to correct the commission mailing address where permit fees are submitted. The previous mailing address did not have the correct mail code or zip code. Section 116.620, concerning Installation and/or Modification of Oil and Gas Facilities, was amended to reference the appropriate exemptions under Chapter 106 rather than the former standard exemption. In addition, §116.620(a)(13) nowincludes reference to case-by-case MACT review under Subchapter C . The commission also amended §116.621(2)(F), concerning municipal solid waste landfills, to refer to the correct exemptions under Chapter 106 rather than the former standard exemption. In addition, §116.621(2)(F) includes reference to case-by-case MACT reviewunder Subchapter C.

19SUBCHAPTER G: FLEXIBLE PERMITS. Consistent with the deletion of §116.110(b), the

operations certification requirements contained in §116.710(b) have also been deleted.

Section 116.710(c) is revised to be consistent with the changes proposed to §116.116(e), concerning seals of Texas licensed professional engineers. Section 116.711(3) is revised to require applicants to demonstrate that the proposed control technology meets the current BACT requirements for any constructed or reconstructed facility that is required to meet Subchapter C

. Section 116.711 (11), concerning flexible permit applications, was amended by adding a requirement that facilities subject to review for constructed or reconstructed major sources of hazardous air pollutants under FCAA, § 112(g) and 40CFR Part 63 must comply with Subchapter C . Section 116.715(a), concerning general and special conditions, was amended to include the case-~ ycase MACT reviewunder Subchapter C when considering whether a facility is eligible for a flexible permit under § 116.710 . A reference to Subchapter Cwas added to ensure that a facility operating under the terms of a flexible permit is in compliance with the federal permitting requirements of Subchapter C. As noted in the preamble discussion concerning Subchapter C, as long as a facility applies BACT (or MACT if it is determined to be more restrictive that BACT) and conducts public notice, the facility would still be able to use flexible permits in conjunction with case-by-case MACT determinations . In addition, § 116.715 is amended to make the correct reference to Chapter 106. In 

### 20order to properly refer to the Engineering Services Section, §116.715(c)(4) was amended to delete a

reference to the Source and Mobile Monitoring Section. Section 116.740(b), concerning public notice and comment, is added to require public notice for flexible permit amendments that address a case-by-case MACT determination under Subchapter C. Flexible permit amendments that do not concern case-by-case MACT determinations are not required to complete the public notice process. This change was made to allowsources to continue to fully utilize flexible permits while meeting the conditions ofSubchapter C. Sections 116.721 and 116.750, concerning Amendments and Alterations and Flexible Permit Fee, were amended to correctly reference Chapter 106 rather than the former Chapter 116 for standard exemptions. Section 116.750(b) was amended to clarify that the minimumfee for a flexible permit amendment is S450. This is not a change to the existing fee structure; rather, it is to correct an oversight to include the $450minimumfee. The $450minimum fee has been applied, when applicable, to all applications for flexible permit amendments. This correction makes this section consistent with Subchapter B regarding fees for NSRpermit amendments. REVIEW

OF AGENCY RULES. The commission adopts the reviewof the rules contained in Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, as mandated by the General Appropriations Act, Article IX, §167. Section 167 requires state agencies to reviewand consider for readoption rules adopted under the Administrative Procedure Act (APA) . The reviewincludes, at a minimum, an assessment that the reason for the rules continues to exist. The 

### 21commission reviewed the rules in Chapter 116 and determined that the rules in Chapter 116are still

necessary since they implement critical provisions ofthe Texas Health and Safety Code, Texas Clean Air Act, Chapter 382, as well as 42 United States Code Annotated, §§7401 to 7671q, of the Federal Clean Air Act. Chapter 116 provides the procedures for action on any application for a permit for construction or modification or renewal of a permit for a facility that will emit air contaminants into the air of the state. No comments were received regarding the readoption of the rules.,

FINAL REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements ofTexas Government Code (the Code), §2001 .0225, and has determined that the rulemaking is not subject to §2001 .0225 because it does not meet the definition of a "major environmental rule" as defined in the Code. The portions of the rules implementing the FCAA, § 112(g) do not meet the definition because the obligations have already been established by federal lawand thus are not newrequirements. The other portions of the rules correcting typos, clarifying language, and instituting regulatory reform changes are not of a magnitude to affect the economic factors in a material way. TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for these rules under Texas Government Code, §2007.043. The following is a summary of that ' assessment. The specific purpose of the rule amendments and repeals is to implement the requirements of Title III of the FCAA, Hazardous Air Pollutants, §112(g), Modifications, and 40 CFRPart 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) . The adopted amendments and repeals 

### 22implement the commission's guidelines on regulatory reformas well as provide clarifications to

existing rule language, streamline procedures, and make the rule consistent with other commission rules. Adoption and enforcement of the rule amendments and repeal will not create a burden on private real property. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW . The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program(CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Conservation Commission. Natural Resources Code, §§33.201 et. seq.), the rules ofthe Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program . As required by 31 TAC §505.11(b)(2) and §505.22(a), and 30TAC §281 .45(a)(3) relating to actions and rules subject to the CMP, apPr-y rules governing air pollutant emissions must be consistent with applicable CMP goals and policies. The commission reviewed this rulemaking action for consistency, and has determined that it is consistent with the applicable CMP goals and policies. The revisions to Chapter 116 implement the requirements of Title III ofthe FCAA, Hazardous Air Pollutants, § 112(g), Modifications, and 40CFR Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology. The revisions are consistent with the goals and policies of the CMP because they implement the new§ 112(g) program . The new§ 112(g) programrequires preconstruction reviewof



### 23major sources of hazardous air pollutants. This newprogramwill require a review of the controls

proposed for these major sources and could result in a reduction in air emissions.

The majority of the revisions will not impact air emissions since they are being done under the commission's guidelines on regulatory reformor for the purpose of clarification of existing procedures. The changes concerning fees should not impact the status quo of the NSRpermitting program, since the changes concerning direct costs provide consistency when calculating fees for newconstruction permits. HEARING AND COMMENTERS. A public hearing was held in Austin on April 16, 1998, and the public comment period closed on April 20, 1998. No oral testimony was received at the hearing on the proposed rules or on the rules reviewof Chapter 116. The EPA, the Texas Industry Project (TIP), and TU Services (TU) submitted written comments on the proposal .

TU Services commented that in § 116.15(7), for purposes of MACT, the definition of "newsource" should conformto the definition contained in the FCAA, § 112(g) . The FCAA, §112(a)(4) defines "new source" as "a stationary source the construction or reconstruction of which is commenced after the Administrator first proposes regulations under this section establishing an emission standard applicable to each source." Section 116.10(12) of the General Definitions does define "new source" ; however, that definition is not intended to modify the §112(a)(4) definition of "new source." The "1VIACT emission limitation for new 

### 24sources" terminology and definition was taken directly fromPart 63. It is not the commission's

intent to revise the definition of "new source" or to apply it in any way that differs fromthe interpretation given by the EPA. The TIP commented that the last sentence of § 116.15(8), the definition of "Process or production unit" is confusing and should be deleted. This is because the sentence contains the federal term"facility" which is different than the state definition. The commission agrees that inconsistencies exist between state and federal terminology; however, it does not believe that the proposed deletion is necessary. This definition was taken directly from Part 63 and the commission intends to interpret the term"facility" consistent with the apparent intent of Part 63. The commission believes that the EPA's use of the term"facility" is intended to clarify that a plant site may contain rmliltiple process or production units. Throughout the remainder of Chapter 116, the commission has revised the rules to refer to "affected sources." The definition of "Affected source" is in §116.15(1), concerning Section 112(g) Definitions. That termis defined as "the stationary source or group of stationary sources which, when fabricated (on-site), erected, or installed meets the criteria in §116.180(a)(1) aftd (2) ofthis title (relating to Applicability) ." Sections 116.180(a)(1) and (2) incorporate from40CFR Part 63 the definitions of "construct a major source" and "reconstruct a major source." Since an "affected source" is actually a source that is either constructing or reconstructing, it is appropriate to use the term"affected source" to describe the applicability of Subchapter C. 25The TIP suggested moving the phrase "before any actual work is begun on the facility" fromthe end of

§ 116.110(a)(4) to the general language of subsection (a) in order clarify whether this phrase modifies paragraph (4) or paragraphs (1) - (4)

. The commission agrees with this suggestion and has incorporated this change for adoption. The intent of this phrase is to modify paragraphs (1)-(4) . This change does not alter the current practice of the commission. The TIPcommented that §116.1 10(c) should refer to constructed or reconstructed "sources" rather than "facilities" to be consistent with the definition of "affected source" in §116.15(1) .

The commission agrees with the comments and has revised §116.110(c) to refer to read as follows: "Exclusion. Owners or operators of affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions) subject to Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63)) are not authorized to use:"

TU Services commented that in §116.110(d)(1), the commission should consider extending the time period for notification of ownership changes that involve multiple sites and permits. The commission declines to make the change suggested by TUbecause the suggestion is beyond the scope of the rule proposal . The commission believes that it is important to maintain as 

### 26current and accurate files as possible concerning ownership of permitted facilities. The

commission is not aware of any situations where the 30-day time period did not allowa sufficient amount of time to submit the required information. The TIP commented that §116.111(2)(K) incorrectly uses word "facility" when describing who is subject to Subchapter C and recommended alternative language. The commission agrees with the suggestion and has revised §116.111(2)(K) . However, to be consistent, the commission will use the term"affected source" rather than "proposed major source" as suggested by TIP. The rule will be revised to read as follows: "Hazardous Air Pollutants. Affected sources (as defined in §116.15(1) ofthis title (relating to Section 112(g) Definitions) for hazardous air pollutants shall comply with all applicable requirements under Subchapter C ofthis title (relating to Hazarr1ril5 Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) ."

The TIP commented that use of "records" and "paragraph" in § 116.115(b)(2)(F) is confusing and supports the original language previously listed in §116.115(b)(6) . The commission agrees that the proposed language could be simplified and has revised §116.115(b)(2)(F) to delete the phrase "by this paragraph." To be consistent, §116.115(b)(2)(F)(i) is revised to read "maintain a copy of the permit along with records containing the information



### 27and data sufficient to demonstrate compliance with the permit, including production records and

operating hours;" . The TIP commented that the reference to "exemptions" should be deleted from§ 116.115(a) and § 116.115(c) . It also commented that Chapter 116 is not consistent when listing which types of permit authorizations are applicable. -Some references generically list "permits" in some references assumed to mean all types of permit authorizations versus other references that specify "flexible permits" or "standard permits."

The intent of the proposed change was not to suggest that exemptions now contained in Chapter 146 would have special conditions. Chapter 116 has authorized several types of exemptions in the past; for example, special exemptions and standard exemptions. Special exemptions, although no Ion;-.--- issued by the commission, may contain special conditions that remain enforceable. The language in §116.115(a) and (c) is revised to include a reference to "special exemptions." Generic references to "permits" exist in the current rule language and the suggestion for greater specificity will be considered in future regulatory reform efforts. The TIP commented that deleting the words "govern and " from§116.115(b)(2)(I)(ii) is a substantive change and recommends adding those words back as originally listed in §116.115(b)(9) . While the commission does not believe that the deletion would change the intent ofthe rule, the rule has been revised to retain the original language. 

### 28TIP commented that §116.115(c)(2)(B) appeared to require "increases in a particular pollutant" to be

subject to Subchapter C. TIP noted that this would be more restrictive than 40 CFR.Part 63, since the rule only implements the sections of § 112(g) that require new source MACT for construction or reconstruction of major sources and not the section that requires existing source MACT for modifications of existing facilities. TIP recommended deleting the reference to Subchapter C to make the rule language clear. The commission agrees that "increases in a particulate pollutant" not associated with construction or reconstruction of a major source of HAPs should not cause a facility to be subject to Subchapter C. 40 CFR Part 63, Subpart A, General Provisions, §63.4(b), Prohibited activities and circumvention, prohibits the building, erection, installation, or use of any article, machine, equipment, or process that conceals an emission that would otherwise constitute noncompliance with a relevant standard. The section describes such concealment, in part, as "the fragmentation ofan operation such the operation avoids regulation by a relevant standard." The intent of this language is to allow the commission the opportunity to reviewfuture projects at facilities with permits that authorize emissions of HAPs near the major source threshold. This is consistent with the procedures used in the review of permits subject to either Prevention of Significant Deterioration under §§116.160-116.163 or Nonattainment Reviewunder §116.150 and §116.151. Therefore, the commission has not made the requested change.TIP commented that adding the word "include" in § 116.116(a) inappropriately broadened the types of

representations that are in permit applications and that become conditions upon which a permit is issued. TIP recommended deleting the word "include."

It was not the commission's intent to broaden the scope of representations that become conditions upon which permits, special permits, or special exemptions are issued by use of the word "include." However, the commission recognizes that this language could result in some misinterpretation and agrees that the word "include" should be deleted from the final rule.

TIP commented that the language in § 116.116(b)(3), "that concerns a determination for constructed or reconstructed sources under Subchapter C . . ." is confusing. TIPsuggested rewriting that section to say "Any person who applies for an amendment to a permit to construct or reconstruct a major source of HAP subject to Subchapter C . . . ."

The commission agrees that the term"concerns" is unclear and has revised the rule language to read "Any person who applies for an amendment to construct or reconstruct an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions) under Subchapter Cof this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or' Reconstructed Major Sources (FCAA, §112(g), 40CFRPart 63)) shall comply with the provisions in §§116.130-116-134, 116.136, and 116.137 ofthis title (relating to Public Notification and Comment Procedures) ."



### 30TU Services commented that the term"effects screening level" should be defined in §116.116(e)(3)(C)

and (E) for clarity and consistency. The commission does not think it is necessary to define "effects screening level" (ESL) . ESLs are used to evaluate the potential for effects as a result of exposure to a particular substance. They are based on data concerning health effects, odor, nuisance potential, vegetation effects, or corrosion effects. They are not ambient air standards. If predicted or measured airborne levels of a substance do not exceed the screening level, the commission would not expect any effects. If concentrations of a substance exceed the ESL, it does not necessarily indicate a problem, but may be a trigger for a more in-depth review . TIP commented that the proposed changes to §116.116(e)(6) may create confusion about the addition of control methods at qualified facilities. TIP believes that the changes anpear to require that all additional control measures are subject to the requirements of Chapter 116, rather than only those additional control methods that are being implemented for the purpose of making a facility a qualified facility. The commission agrees with the proposed changes and revised §116.116(e)(6) to read: "The implementation of any additional control methods to qualify a facility shall be subject to the requirements ofthis chapter ."TU Services commented that § 116.117(b)(5)(B) should identify physical location(s) at which an "effects

screening level" is to be determined. The commission has added the following phrase "at any point off-property" to the end of §116.117(b)(5)(B) . Under the former rules, for the purpose of establishing reportable limits at qualified facilities, the impact of effect screening levels has always been considered at points beyond the property line. This change merely clarifies the long standing practice of the commission. TIP commented that § 116.121 should refer to "air contaminant" rather than "substance" since "air contaminant" is a defined termin the TCAA and it is commonly used in the area of air pollution control . Since "substance" is not currently defined in the rules, the commission has added the following language to replace that term : "The compliance history is not required ifthe total increased actual emissions of any specific air contaminant (e .g., benzene, arsenic, etc.) at the site will be accompanied by greater than a 1 .1 to 1 reduction of the same specific air contaminant at the site."

TIP requested that the commission not adopt the changes to § 116.122(b) which would change the rule so that it would refer to a singular violation rather than plural violations. TIP requested that the rule be left in its plural form . 

### 32It appears that TIP believes that changing "violations" fromplural to singular alters the intent of

this subsection. The commission did not intend to change the commission's procedures for compiling compliance history and the rule has been revised to refer to "violations."

TU Services commented that the public notice procedures in Subchapter B, Public Notification and Comment Procedures, should be modified to match the existing procedures in Chapter 122, concerning Federal Operating Permits. The current public notice procedures for Chapter 116conformwith the requirements of the TCAA and the APA. The procedures for Chapter 122were developed in order to meet the requirements of 40 CFRPart 70, Federal Operating Permits. In the absence of regulatory and statutory changes, public notice procedures under Chapter 116 cannot be revised to implement the procedures under Chapter 122. The request of TUServices is beyond the scope of the rulemaking proposal . TIP commented that although §116.141(b) was not proposed for revision, it should be revised to say "shall" rather than "may" regarding the schedule to be used for fee payments. TIP noted that the payment of fees is not discretionary. "

The commission agrees that the fee schedules contained in this subsection are not optional and that the word "shall" is more appropriate than "may." In addition, the commission has changed



### 33"schedule" to "schedules" to be consistent with the structure of this subsection. This change does

not alter the current commission practice for establishing fees for permit applications.

EPAcommented on a section of the proposal preamble that the interpretation of §63.43(d) to require case-by-case MACT determination to be equivalent to BACT determinations is incorrect. EPA noted that the FCAA contains specific definitions for MACT and BACT and EPA does not consider the terms to be equivalent. It further stated that the state's administrative procedures for preconstruction review may be used as long as they meet §63.43(c)(2)(ii) . The commission believes in most cases that BACT determinations will exceed the requirements of case-by-case MACT determinations as required in 40 CFRPart 63 Subpart B, Requirements for Control Technology. In cases where the Part 63 MACT determination is more restrictive than BACT as required in Chapter 116, tl~e commission intends to comply with 40 CFR Part 63, Subpart B, Requirements for Control Technology. No changes to the rule language are necessary to make this clarification. If a case-by-case MACT determination is more restrictive than BACT, the affected source will be required to meet the MACT requirements.

TIP stated that the definitions of "Construct a major source" and "Reconstruct a major source" in § 116.180(a)(1) and (2) will cause confusion since they are not included in § 116.15, concerning § 112(g) Definitions.Although these terms can be considered definitions, they also contain several procedural

requirements. The commission believes that procedural requirements are not appropriate for definition sections. Therefore, the rule has not been revised in response to this comment . TU Services requested that the term"toxics-best available control technology" in §116.180(a)(1)(B)(ii)(1) be defined. 40 CRF Part 63 does not contain a definition of "toxics-best available control technology," rather, it uses the term"toxics BACT" as an example of control technology that states may use to implement §112(g) . The preamble to 40 CFRPart 63, Subpart B (61 FR 68383, 68389) discusses the definition of "construct a major source." Specifically, the EPAacknowledges that states may use different levels of control in their air quality programs (e .g., BACT, lowest achievable emission rule, or a state toxics programthat requires toxic-BACT), for the purpose of the definition of "construct a major source." The commission intends to implement the requirements of §112(g) using the current NSRpermitting process, which requires a BACT and -impacts review

. Therefore, the commission will not make the requested change. Both the EPAand TIP commented on the effective date of the commission's §112(g) program . The EPAcommented that § 116.182 limits the implementation of § 112(g) to the sources in Texas covered by the Texas interim operating permit program . EPAnoted that sources not covered by the interimprogramwill also be subject to §112(g) after June 29, 1998, and will be required to obtain a §112(g)

determination fromthe EPAprior to the start of construction. TIP commented that in § 116.180(b), the commission should conduct the §112(g) reviews for sources in Texas in order to avoid duplicative reviewby the commission and the EPAand recommended adopting whatever compliance date was necessary to avoid such duplication. Based on the comments received fromthe EPA and on discussions with the EPA staff, the commission has revised the final rule to make clear that the effective date for the §112(g) program is June 29, 1998. The commission will conduct all of the §112(g) reviews that may be required by Subchapter C. This issue is discussed further in the "EXPLANATION OF ADOPTEDRULES" section ofthis preamble.

TIP commented that §116.181(d) (which implements 40 CFR §63.40(d)) should be deleted, since it could result in local authorities making case-by-cas- MACT determinations under TCAA, §382.113 that are more restrictive than those that might be made by the commission.

The TIP appears to believe that removing this rule language would prevent local authorities from developing a more stringent control requirement than a state or federal requirement . This language was taken from§63.40(d) and does not enhance local authority beyond that already authorized under TCAA, §382.113. Under §382.113, local programs are not prohibited from having requirements more stringent than state or federal requirements. The language has not been revised in response to this comment .TIP commented that § 116.182 is confusing and suggested that the language be rewritten to refer to

"affected sources" rather than "newfacility (major source) ." TIP also noted that the reference to "approved operating permit program" could cause confusion about the effective date ofthe § 112(g) programin Texas. The commission agrees with the comment regarding the use of the term"affected source" and has revised the final rule to reflect this change. The discussion regarding the effective date of the §112(g) programis in the section of the preamble entitled "EXPLANATIONOF ADOPTED RULES." The final rule has been revised to clarify the effective date of the §112(g) program . TIP commented that § 116.183 contains an incorrect reference to "facility" and suggested that the section be rewritten to refer to "affected source" as defined in §116.15(1) . The commission agrees with this comment and has revised the final rule to say "Proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with the public notice requirements contained in §116.130 ofthis title (relating to Applicability) . TIP commented that the language of § 116.312 currently requires the executive director to provide written notice to permit holders within 30days ofreceipt of a complete application for permit renewal . TIP noted that the proposed revisions did not specifically provide for notice within 30days of receipt of a complete application. TIP further commented that neither the current nor proposed rule explains whether the commission is referring to administratively or technically complete applications. TIP 

### 37suggested that since the commission is making changes to Chapter 116under regulatory reform, the

commission should consider outlining a procedure for reviewing renewal applications and notifying applicants of errors and for providing notice ofwhen an application is ready to undergo public notice.

The commission has revised the first sentence in subsection (a) to read as follows: "The executive director shall mail a written-notice to the permit holder within 30 days after receipt of a complete application." Current practice is to send a permit renewal application to public notice as soon as the application is deemed administratively complete. Currently, applicants are notified oferrors and requests for additional information by letter throughout the reviewprocess. Although this section was revised under the regulatory reformprocess, the commission believes adopting a new process with additional timelines for reviewof renewal applications without additional opportunity for public comment would be inappropriate. The commission is not making the suggested changes beyond the one noted previously. 

### TIP commented that §116.610(d) contained an incorrect reference to "facility" andsuggested that the section be rewritten to refer to "affected source" as defined in §116.15(1) . The commission agrees with this comment and has replaced the proposed language with the following: "Any project involving a proposed affected source (as defined in §116 .15(1) ofthis title (relating to Section 112(g) Definitions)) shall comply with all applicable requirements under Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing



### 38Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) ." Affected

sources subject to Subchapter C ofthis chapter may use a standard permit under this subchapter only if the terms of the specific standard permit meet the requirements of Subchapter C of this chapter ."

TIP suggested that the phrase "is subject to" be added to §116.621(2)(F) prior to the reference to Subchapter C. This is because the clause "any project which constitutes a new major source, or major modification" applies to new source review

and not to § 112(g) sources. The commission agrees with the suggested comment and will revise §116.621(2)(F) to read: "any project which constitutes a new major source, or major modification under the new source review requirements of the FCAA, Part C (Prevention of Significant Deterioration review), Part D (nonattainment review) and regulations promulgated thereunder, or is an affected source (as defined in §116

.15(1) ofthis title (relating to Section 112(g) Definitions)), subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63)) shall be subject to the requirements of §116.110 ofthis title (relating to Applicability) rather than this subchapter ." The commission agrees that the clause "any project which constitutes a new major source, or major modification" applies to new source review

and not to §112(g) sources. TIPcommented that the language in §116.711(3) is confusing since all changes to facilities with HAPs could "concern" a MACT determination. TIP requested that the language be revised to be clear that the section applies to major sources of HAPs that are subject to Subchapter C and not all facilities.The commission agrees with the comment and will revise §116 .711(3) to read: "For new facilities and proposed affected sources (as defmed in §116.15(1) of this title (relating to Section 112(g) Defuiitions)), subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g) ; 40 CFR Part 63)) the use of BACT shall be demonstrated for the individual facility or affected source.

TIP requested that the language in §116.711(11) be revised to be clear that the section applies to major sources of HAPs that are subject to Subchapter Cand not all facilities. The commission agrees with the comment and has revised §116.711(11) to read: "Federal standards of review

for constructed or reconstructed major sources of hazardous air pollutants. Ifthe proposed source is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)), it shall comply will all applicable requirements under Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63)) ."

TIP commented that the language "that concerns a maximum achievable control technology determination" in § 116.740(b) is ambiguous and recommended that it be deleted. The commission agrees with the comment and has changed the final rule to say: "Any person who applies for an amendment to a flexible permit regarding an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter C ofthis 

### 40chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or

Reconstructed Major Sources (FCAA, §112(g), 40CFR Part 63)) shall comply with the provisions in §§116.130-116-134, 116.136, and 116.137 ofthis title."

STATUTORY AUTHORITY. The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy ofthe State of Texas and of the TCAAto safeguard the air ofthe state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality ofthe state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes ofthe TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of conunission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling; monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 41distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits ifassistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director ; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAAand other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial review of commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General ' Appropriations Act, 75th Legislature, 1997.

# STAFF RECOMMENDATIONS

### SUBCHAPTERA: DEFINITIONS §§116.10,116.11,116.13,116.14 §116.10. General Definitions. §116.11 . Compliance History Definitions. §116.13. Flexible Permit Definitions. 

### §116.14. Standard Permit Definitions.SUBCHAPTER A : DEFINITIONS §§116.10,116.11,116.13-116.15

STATUTORY AUTHORITY. The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes ofthe TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040and §382.041, which provide for public records and submission of confidential information; §382.051, whic~~ provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide foradministration and enforcement offederal operating permits; issuance of federal operating permits and

appeal ofdelays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws ofthis state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice ofapplications; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial review of commission acts; §5.355, which provides for appeal ofdistrict courtjudgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997.§116.10. General Definitions. Unless specifically defined in the TCAA or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to themin the field of air pollution control . In addition to the terms which are defined by the TCAA, and in § 101 .1 ofthis title (relating to Definitions), the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Actual emissions - The highest rate of emissions of an air contaminant actually achieved froma qualified facility within the 120-month period prior to the change. This rate cannot exceed any applicable federal or state emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under § 116.116(e) ofthis title (relating to Changes to Facilities) .



### (2) Allowable emissions - The authorized rate of emissions of an air contaminant from a facility as determined in accordance with this section. This rate cannot exceed any applicable state or federal emissions limitation. This definition applies only whendetermining whether there has been a 

### net increase in allowable emissions under §116.116(e) of this title. (A) Permitted facility - For a facility with a preconstruction permit under this chapter, the allowable emissions shall be any emission limit established in the permit on a MAERT and any emission limit contained in representations in the permit application which was relied upon in 

### 46issuing the permit, plus any allowable emissions authorized by an exemption under Chapter 106 of this

title (relating to Exemptions fromPermitting) . (B) Exempted facility - For a facility operating under Chapter 106 of this title, the allowable emissions shall be the least of the emissions rate allowed in Chapter 106, Subchapter A of this title (relating to General Requirements), the emissions rate specified in the applicable exemption, or the federally enforceable emission rate established on a PI-8 form . (C) Grandfathered facility - For a qualified grandfathered facility, the allowable emissions shall be the maximum annual emissions rate after the implementation of any air pollution control methods to become a qualified facility, plus 10%of the maximum annual emissions rate prior to the implementation of such control methods, but in no case shall the allowable emissions be . greater than the maximum annual emissions rate prior to the implementation of such control methods. The maximumannual emissions rate is the emissions rate at the maximum annual capacity according to the physical or operational design of the facility, data fromactual operations over a period of no more than 12 months that demonstrates the maximum annual capacity, or other information that demonstrates the maximum annual capacity. Except where a grandfathered facility has been modified, the allowable emissions for the modification shall be determined as a permitted facility. (D) Standard permit facility - For a facility authorized by standard permit, other than § 116.617(2) of this title (relating to Standard Permits for Pollution Control Projects), the

47allowable emissions shall be the maximumemissions rate represented in the registration for the

standard permit . (E) Special exemption facility - For a facility operating under a special exemption, the allowable emissions shall be the emissions rate represented in the original special exemption request. (F) The allowable emissions for a qualified facility shall not be adjusted by the voluntary installation ofcontrols.

(3) Best available control technology (BACT) - BACT with consideration given to the technical practicability and the economic reasonableness of reducing or eliminating emissions from the facility. (4) Facility - A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. Amine, quarry, well test, or road is not a facility.

(5) Federally enforceable - All limitations and conditions which are enforceable by the EPA, including:

~ (A) those requirements developed under Title 40of the Code of Federal Regulations (CFR) Parts 60 and 61 (40CFR60 and 61) ; (B) Chapter 113, Subchapter C ofthis title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40CFR 63)) ; 

### 48(C) requirements within any applicable state implementation plan (SIP) ; (D) any permit requirements established under 40 CFR §52.21 ; or (E) any permit requirements established under regulations approved under 40 CFRPart 51, Subpart 1, including permits issued under the EPA-approved programthat is incorporated into the SIP and that expressly requires adherence to any permit issued under such program . (6) Grandfathered facility - Any facility that is not a new facility since it was constructed prior to the permit requirements ofthis chapter.

(7) Lead smelting plant - Any facility which produces purified lead by melting and separating lead frommetal and nonmetallic contaminants and/or by reducing oxides into elemental lead. Rawmaterials consist of lead concentrates, lead-bearing ores or lead scrap, drosses, or other lead-bearing residues. Additional processing may include refining and alloying. A facility which only remelts lead bars or ingots for casting into lead products is not a lead smelting plant .

(8) Maximumallowable emissions rate table (MAERT) - A table included with a preconstruction permit issued under this chapter that contains the allowable emission rates established by the permit for a facility.(9) Modification of existing facility - Any physical change in, or change in the

method of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the facility into the atmosphere or that results in the emission of any air contaminant not previously emitted. The termdoes not include: (A) insignificant increases in the amount of any air contaminant emitted that is authorized by one or more commission exemptions; (B) insignificant increases at a permitted facility; (C) maintenance or replacement ofequipment components that do not increase or tend to increase the amount or change the characteristics of the air contaminants emitted into the atmosphere; (D) an increase in the annual hours of operation unless the existing facility has received a preconstruction permit or has been exempted, under the TCAA, §382.057, from preconstruction permit requirements; (E) a physical change in, or change in the method of operation of, a facility that does not result in a net increase in allowable emission of any air contaminant and that does not result in the emission of any air contaminant not previously emitted, provided that the facility:(i) has received a preconstruction permit or permit amendment or has

been exempted under the TCAA, §382.057, frompreconstruction permit requirements no earlier than 120 months before the change will occur; or (ii) uses, regardless of whether the facility has received a preconstruction permit or permit amendment or has been exempted under the TCAA, §382.057, an air pollution control method that is at least as effective as the BACT that the commission required or would have required for a facility of the same class or type as a condition of issuing a permit or permit amendment 120 months before the change will occur; (F) a physical change in, or change in the method of operation of, a facility where the change is within the scope of a flexible permit ; or (G) a change in the method ofoperation of a natural gas processing, treating, or compression facility connected to or part of a natural gas gathering or transmission pipeline which does not result in an annual emission rate of any air contaminant in excess ofthe volume emitted at the maximumdesigned capacity, provided that the facility is one for which: (i) construction or operation started on or before September 1, 1971, and at which either no modification has occurred after September 1, 1971, or at which modifications have occurred only under Chapter 106 ofthis title; or

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

1972, and which registered in accordance with TCAA, §382.060, as that section existed prior to September 1, 1991 .

(10) New

facility - A facility for which construction is commenced after August 30, 1971, and no contract for construction was executed on or before August 30, 1971, and that contract specified a beginning construction date on or before February 29, 1972.

(11) New

source - Any stationary source, the construction or modification of which is commenced after March 5, 1972.

(12) Nonattainment area - Adefined region within the state which is designated by the EPA as failing to meet the national ambient air quality standard for a pollutant for which a standard exists. The EPAwill designate the area as nonattainment under the provisions of FCAA, §107(d) .



### (13) Public notice - The public notice of application for a permit as required in this chapter. (14) Qualified facility - An existing facility that satisfies the criteria of either " paragraph (9)(E)(i) or (ii) of this section.

(15) Source - Apoint of origin of air contaminants, whether privately or publicly owned or operated. 

### 52§116.11 . Compliance History Definitions.

Unless specifically defined in the TCAA or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to themin the field of air pollution control . In addition to the terms which are defined by the TCAA, and in § 101 .1 ofthis title (relating to Definitions), the following words and terms, when used in §§116.120-116.126 of this title (relating to Compliance History) shall have the following meanings, unless the context clearly indicates otherwise.

(1) Adjudicated decision - Any conviction, final order, judgment, or decree as follows: (A) a criminal conviction of the applicant in any court for violation of any law ofthis state, another state, or ofthe United States governing air contaminants; (B) a final order,judgment, or decree of any court or administrative agency, or agreement entered into settlement of any legal or administrative action brought in a court or administrative agency, addressing: (i) the applicant's past performance or compliance with the laws and rules of this state, another state, or ofthe United States governing air contaminants; or (ii) the terms of any permit or order issued by the commission; or

53(C) an order of any court or administrative agency, whether final or not,

respecting air contaminants for the facility that is the subject of the permit application.

(2) Compliance event - An adjudicated decision or compliance proceeding as defined in paragraphs (1) and (4) this section.

(3) Compliance history - The record ofan applicant's adherence to air pollution control laws and rules of the State of Texas, other states, and ofthe United States except as provided in § 116.123 of this title (relating to Effective Dates) . The history shall be for the five-year period prior to the date on which the application for issuance, amendment, or renewal is filed. The compliance history shall include all compliance events, as defined in this section.

(4) Compliance proceeding - A notice of violation issued by the commission or other agency for which the commission has recommended formal enforcement action and has notified the applicant of such recommendation.

(5) Existing site - Aplant property that is not a new site. (6) New

site - A plant property having an operating history less than five years in length as of the date of application.§116.13. Flexible Permit Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. .

(1) Emission cap - Emission limit for a specific air contaminant based on total emissions of that pollutant adjusted by an insignificant emissions factor fromall sources that are included in a flexible permit.

(2) Expected maximumcapacity - The maximum capacity of a facility according to its physical and operational design and planned operation.

(3) 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. §116.14. Standard Permit Definitions . The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Off-plant receptor - For the purposes of Subchapter F of this chapter (relating to Standard Permits) only, shall be defined as any recreational area or residence or other structure not 55occupied or used solely by the owner or operator of the facilities or owner of the property upon which

the facilities are located.

(2) Oil and gas facility - For the purposes ofSubchapter F of this chapter only, shall be defined as facilities which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface. These oil and gas facilities include, but are not limited to: oil or gas production facilities; water injection facilities; carbon dioxide separation facilities; or oil or gas pipeline facilities consisting of one or more tanks, separators, dehydration units, free water knock-outs, gunbarrels, heater treaters, vapor recovery units, flares, pumps, internal combustion engines, gas turbines, compressors, natural gas liquid recovery units, or gas sweetening and other gas conditioning facilities. This definition does not include sulfur recovery units.

(3) Sulfur recovery unit - For the purposes of Subchapter F of this chapter only, shall be defined as a process device whose primary purpose is to recover elemental sulfur fromacid gas. 

### §116.15. Section 112(g) Definitions. The following words and terms, when used in Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (FCAA, §112(g), 40 Code of Federal Regulations



### 56(CFR) Part 63)), as amended December 27, 1996, shall have the following meanings, unless the

context clearly indicates otherwise.

(1) Affected source - The stationary source or group of stationary sources which, when fabricated (on-site), erected, or installed meets the criteria in §116.180(a)(1) and (2) ofthis title (relating to Applicability) and for which no MACT standard has been promulgated under 40CFRPart 63. (2) Control technology - Measures, processes, methods, systems, or techniques to limit the emission of HAPs including, but not limited to, measures that: (A) reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution ofmaterials, or other modifications;



### (B) enclose systems or processes to eliminate emissions;

. (C) collect, capture, or treat such pollutants when released froma process, stack, storage, or fugitive emissions point; (D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in 42 United States Code 7412(h) ; or

57(E) are a combination of subparagraphs (A)-(D) of this paragraph. (3) Electric utility steamgenerating unit - Any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that co-generates steamand electricity and supplies more than one-third of its potential electric output capacity and more than 25 megawatts electric output to any utility power distribution systemfor sale shall be considered an electric utility steamgenerating unit.

(4) Greenfield site - Acontiguous area under common control that is an undeveloped site. (5) Hazardous air pollutant (HAP) - Any air pollutant listed under the FCAA, §112(b) . (6) List of source categories - The Source Category List required by FCAA, §112(c) .

(7) Maximum

achievable control technology (MACT) emission limitation for new sources - The emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions that the executive director, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable by the constructed or reconstructed major source. 

### 58(8) Process or production unit - Any collection of structures and/or equipment, that

processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product. A single facility may contain more than one process or production unit.

(9) Research and development activities - Activities conducted at a research or laboratory facility whose primary purpose is to conduct research and development into new processes and products, where such source is operated under the close supervision oftechnically trained personnel and is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner .

(10) Similar source - A stationary source or process that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed major source such that the source could be controlled using the same control technology.SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS PERMIT APPLICATION 

### §§116.110-116.112,116.114-116.118

STATUTORY AUTHORITY. The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations ; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal ofcommission actions; §382.040and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling; monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 

### 60distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance offederal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction ofcertain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director ; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws ofthis state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5 .115 and §5.116, which provide for who may be an affected person; notice ofapplications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, § 167, General ' Appropriations Act, 75th Legislature, 1997.§116.110. Applicability.



### §116.111 . General Application. §116.112. Distance Limitations. 

### §116 .114 . Application ReviewSchedule. §116.115. General and Special Conditions. §116.116. Changes to Facilities. §116.117. Documentation and Notification of Changes to Qualified Facilities. §116.118. Pre-change Qualification.

### SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS DIVISION 1 : PERMIT APPLICATION §§116.110-116.112,116.114-116.118

STATUTORY AUTHORITY. The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy ofthe State of Texas and ofthe TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes ofthe TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal ofcommission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling; monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 

### 63distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.17.5 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation ofuncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal ofdistrict courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General ' Appropriations Act, 75th Legislature, 1997.

### §116

.110. Applicability. (a) Permit to construct . Before any actual work is begun on the facility, 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 either:

(1) obtain a permit under §116.111 of this title (relating to General Application) ; (2) satisfy the conditions for a standard permit under the requirements in: (A) Subchapter F of this chapter (relating to Standard Permits) ; 

### (B) Chapter 321, Subchapter Kof this title (relating to Concentrated Animal Feeding Operations) ; (C) Chapter 332 of this title (relating to Composting) ; or



### (D) Chapter 330, Subchapter Nofthis title (relating to Landfill Mining) ; (3) satisfy the conditions for a flexible permit under the requirements in Subchapter G ofthis chapter (relating to Flexible Permits) ; or



### 65(4) satisfy the conditions for exempt facilities under Chapter 106 of this title (relating

to Exemptions fromPermitting) . (b) Modifications to existing permitted facilities. Modifications to existing permitted facilities may be handled through the amendment of an existing permit or an existing flexible permit . (c) Exclusion. Owners or operators of affected sources (as defined in §116.15(1) ofthis title (relating to Section 112(g) Definitions)) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) are not authorized to use:

(1) an exemption under Chapter 106 of this title; (2) standard permits under Subchapter F ofthis chapter that do not meet the requirements of Subchapter C ofthis chapter; or

(3) §116.116(e) of this title (relating to Changes to Facilities) . (d) Change in ownership. (1) Within 30days after the change of ownership of a facility permitted under this chapter, the new

owner shall notify the commission and certify the following: 

### 66(A) the date of the ownership change; (B) the name, address, phone number, and contact person for the newowner; (C) an agreement by the newowner to be bound by all permit conditions and all representations made in the permit application and any amendments and alterations ; (D) there will be no change in the type of pollutants emitted; and (E) there will be no increase in the quantity of pollutants emitted. (2) The new

owner shall comply with all permit conditions and all representations made in the permit application and any amendments and alterations. (e) Submittal under seal ofTexas licensed professional engineer. Applications for permit or permit amendment with an estimated capital cost of the project above $2 million, and not subject to any exemption contained in the Texas Engineering Practice Act (TEPA), shall be submitted under seal of a Texas licensed professional engineer. However, nothing in this subsection shall limit or affect any requirement which may apply to the practice ofengineering under the TEPAor the actions of the Texas Board of Professional Engineers. The estimated capital cost is defined in § 116.141 of this title (relating to Determination of Fees) .



### 67(f) Responsibility for permit application. The owner of the facility or the operator of the

facility authorized to act for the owner is responsible for complying with this section. 

### §116.111 . GeneralApplication. In order to be granted.a permit, amendment, or special permit amendment, the application must include: (1) a completed FormPI-1 General Application signed by an authorized representative of the applicant. All additional support information specified on the formmust be provided before the application is complete;



### (2) information which demonstrates that all of the following are met. (A) Protection of public health and welfare. (i) The emissions fromthe proposed facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the'health and physical property ofthe people. (ii) For issuance of a permit for construction or modification of any facility within 3,000feet of an elementary, junior high/middle, or senior high school, the commission 

### 68shall consider any possible adverse short-term or long-termside effects that an air contaminant or

nuisance odor fromthe facility may have on the individuals attending the school(s) . (B) Measurement of emissions. The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission (TNRCC) Sampling Procedures Manual ." (C) Best available control technology (BACT) . The proposed facility will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions fromthe facility. (D) New

Source Performance Standards (NSPS)

. The emissions fromthe proposed facility will meet the requirements of any applicable NSPS as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPAunder FCAA, §111, as amended. (E) National Emission Standards for Hazardous Air Pollutants (NESHAP) . The emissions fromthe proposed facility will meet the requirements of any applicable NESHAP, as listed under 40 CFRPart 61, promulgated by EPA under FCAA, §112, as amended.(F) NESHAP for source categories. The emissions fromthe proposed facility

will meet the requirements of any applicable maximumachievable control technology standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR63)) . (G) Performance demonstration. The proposed facility will achieve the performance specified in the permit application. The applicant may be required to submit additional engineering data after a permit has been issued in order to demonstrate further that the proposed facility will achieve the performance specified in the permit application. In addition, dispersion modeling, monitoring, or stack testing may be required. (H) Nonattainment review . If the proposed facility is located in a nonattainment area, it shall comply with all applicable requirements in this chapter concerning nonattainment review

. (1) Prevention of Significant Deterioration (PSD) review . If the proposed facility is located in an attainment area, it shall comply with all applicable requirements in this chapter concerning PSD review .(J) Air dispersion modeling. Computerized air dispersion modeling may be

required by the executive director to determine air quality impacts froma proposed new facility or source modification. (K) Hazardous air pollutants. Affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) for hazardous air pollutants shall comply with all applicable requirements under Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63)) . §116.112. Distance Limitations. The following facilities must satisfy the following distance criteria. (1) Lead smelters. New lead smelting plants shall be located at least 3,000feet from any individual's residence where lead smelting operations have not been conducted before August 31, 1987. This subsection does not apply to: (A) a modification of a lead smelting plant in operation on or before Aiigust 31, 1987; (B) a newlead smelting plant or modification of a plant with the capacity to produce 200 pounds or less of lead per hour; or 

### 71(C) a lead smelting plant that was located more than 3,000 feet fromthe

nearest residence when the plant began operations.

(2) Hazardous waste permits. Permits for hazardous waste management facilities shall not be issued if the facility is to be located in the vicinity of specified public access areas under the following circumstances. (A) No permit shall be issued for a newhazardous waste landfill or land treatment facility or an areal expansion of an existing facility if the boundary ofthe facility or expansion is to be located within 1,000 feet of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park. (B) No permit shall be issued for a newcommercial hazardous waste management facility or the subsequent areal expansion of such a facility or unit of that facility if the boundary of the unit is to be located within 1/2 mile (2,640feet) of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park. (C) For a subsequent areal expansion of a newcommercial hazardous waste management facility that is required to comply with subparagraph (B) of this paragraph, distances shall be measured froma residence, church, school, day care center, surface water body used for a public



### 72drinking water supply, or dedicated public park only if such structure, water supply, or park was in

place at the time the distance was certified for the original permit . (D) No permit shall be issued for a newcommercial hazardous waste management facility unless the applicant demonstrates that the facility will be operated so as to safeguard public health and welfare and protect physical property and the environment. (E) The measurement ofdistances shall be taken toward an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park that is in use when the permit application is filed with the commission. The restrictions imposed by subparagraphs (A) - (C) of this paragraph do not apply to a residence, church, school, day care center, surface water body used for a public drinking water supply, or a dedicated public park located within the boundaries of a commercial hazardous waste management facility, or property owned by the permit applicant . (F) The measurement ofdistances shall be taken froma perimeter around the proposed hazardous waste management unit. The perimeter shall be no more than 75 feet fromthe edge ofthe proposed hazardous waste management unit.§116.114. Application ReviewSchedule. (a) Reviewschedule. The executive director shall reviewpermit applications in accordance with the following.

(1) Notice of completion or deficiency. The executive director shall mail written" notification informing the applicant that the application is complete or that it is deficient within 90 days of receipt ofthe application for a new permit, or amendment to a permit or special permit. (A) If the application is deficient, the notification must state: (i) the additional information required; and (ii) the intent of the executive director to void the application if information for a complete application is not submitted. 

### (B) Additional information may be requested within 60 days of receipt of the information provided in response to thedeficiency notification. °

(2) Decision to approve or disapprove the application. The executive director shall mail written notice to the applicant of his decision to approve or not approve the application. If the applicant has provided public notification as required by the executive director, and no requests for 

### 74public hearing or public meeting on the proposed facility have been received, the executive director

shall send notice within:(A) 180 days of receipt ofa completed permit application; or (B) 150 days of receipt of a permit amendment or special permit amendment .

(3) Refund of permit fee. (A) Ifthe time limits provided in this section to process an application are exceeded, the applicant may appeal in writing to the executive director for a refund of the permit fee. (B) The permit fee shall be reimbursed if it is determined by the executive director that the specified period was exceeded without good cause, as provided in Texas Civil Statutes, Article 6252-13b.1, §3. (b) Voiding ofdeficient application. (1) An applicant shall make a good faith effort to submit, in a timely manner, adequate information which demonstrates that the requirements for obtaining a permit or permit amendment are

75met in response to any deficiency notification issued by the executive director under the provisions of

this section, or § 116.131 of this title (relating to Public Notification Requirements) .

(2) If an applicant fails to make such good faith effort, the executive director shall void the application and notify the applicant. If the application is resubmitted within six months ofthe voidance, it shall be exempt fromthe requirements of § 116.140 of this title (relating to Applicability) .

§116.115. General and Special Conditions. (a) General and special conditions. Permits, special permits, standard permits, and special exemptions may contain general and special conditions. (b) General conditions. Holders of permits, special permits, standard permits, and special exemptions shall comply with the following:

(1) the general conditions contained in the permit document if issued or amended prior 

### to August 16, 1994; or

(2) the following general conditions if the permit or amendment is issued or amended on or after August 16, 1994, regardless of whether they are specifically stated within the permit document. 

### 76(A) Voiding of permit. A permit or permit amendment under this chapter is

automatically void if the permit holder does one of the following: (i) fails to begin construction within 18 months ofdate of issuance. The executive director may grant a one-time 18-month extension to the date to begin construction; (ii) discontinues construction for more than 18 consecutive months prior to completion; or (iii) fails to complete construction within a reasonable time. (B) Report of construction progress. The permit holder shall report start of construction construction interruptions exceeding 45 days, and completion of construction. The report shall be given to the appropriate regional office of the commission not later than 15 working days after occurrence of the event .

### (C) Start-up notification. (i) The permit holder shall notify the appropriate air programregional office of the commission prior to the commencement ofoperations ofthe facilities authorized by the permit. The notification must be made in such a manner as to allowrepresentative of the commission to be present at the commencement of operations. 77(ii) The permit holder shall provide a separate notification for the

commencement of operations for each unit of phased construction, which may involve a series of units commencing operations at different times. (D) Sampling requirements. (i) If sampling is required, the permit holder shall contact the commission's Office ofCompliance and Enforcement prior to sampling to obtain the proper data forms and procedures. (ii) All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives ofthe commission. (iii) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant. (E) Equivalency of methods. The permit holder must demonstrate or ' otherwisejustify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit. 

### 78(F) Recordkeeping. The permit holder shall : (i) maintain a copy of the permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours; ,

, (ii) keep all required records in a file at the plant site. If, however, the facility normally operates unattended, records shall be maintained at the nearest staffed location within Texas specified in the application; (iii) make the records available at the request of personnel fromthe commission or any air pollution control programhavingjurisdiction; (iv) comply with any additional recordkeeping requirements specified in special conditions attached to the permit; and (v) retain information in the file for at least two years following the date that the information or data is obtained. ' (G) Maximumallowable emission rates. The total emissions ofair contaminants fromany ofthe sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources--MaximumAllowable Emission Rates." 

### 79(H) Maintenance of emission control . The permitted facilities shall not be

operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide notification for upsets and maintenance in accordance with §101 .6 and §101 .7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements) . (I) Compliance with rules. (i) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders ofthe commission issued in conformity with the TCAA and the conditions precedent to the granting of the permit. (ii) If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated. (iii) 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 ofair contaminants, including compliance with the permit.



### 80(c) Special conditions. The holders of permits, special permits, standard permits, and special

exemptions shall comply with all special conditions contained in the permit document.

(1) Special conditions may be attached to a permit that are more restrictive than the requirements ofTitle 30 of the Texas Administrative Code.

(2) Special condition for written approval . (A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under: (i) a standard permit under Subchapter F ofthis chapter (relating to Standard Permits) ; or 

### (ii) an exemption under Chapter 106of this title (relating to Exemptions-fromPermitting) . (B) Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either: (i) result in a significant impact on the air environment ; or



### 81(ii) cause the facility to become subject to reviewunder (I) Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63)) ; or (lI) the provisions in § 116.150 and § 116.151 of this title (relating to Nonattainment Review) and §§116.160-116.163 of this title (relating to Prevention of Significant Deterioration Review) . 

### §116.116. Changes to Facilities. (a) Representations and conditions. The following are the conditions upon which a permit, special permit, or special exemption are issued:

(1) representations with regard to construction plans and operation procedures in an applicaiion for a permit, special permit, or special exemption; and

(2) any general and special conditions attached to the permit, special permit, or special exemption itself.(b) Permit amendments. (1) Except as provided in subsection (e) of this section, the permit holder shall not vary fromany representation or permit condition without obtaining a permit amendment if the change will cause: (A) a change in the method of control of emissions; (B) a change in the character ofthe emissions; or (C) an increase in the emission rate of any air contaminant . (2) Any person who requests oermit amendments must receive prior approval by the executive director or the commission. Applications must be submitted with a completed Form Pl-1 and are subject to the requirements of § 116.111 of this title (relating to General Application) .

(3) Any person who applies for an amendment to a permit to construct or reconstruct an affected source (as defined in §116.15(1) ofthis title (relating to Section 112(g) Definitions)) under Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40 CFRPart 63)) shall comply with the provisions in §§116.130-116.134, 116.136, and 116.137 of this title (relating to Public Notification and Comment Procedures) . 83(c) Permit alteration. (1) A permit alteration is: (A) a decrease in allowable emissions; or (B) any change froma representation in an application, general condition, or 

### special condition in a permit that does not cause: (i) a change in the method of control of emissions; (ii) a change in the character ofemissions; or (iii) an increase in the emission rate of any air contaminant. (2) Requests for permit alterations that must receive prior approval by the executive director are those that: 

### (A) result in an increase in off-property concentrations of air contaminants; (B) involve a change in permit conditions; or

84(C) affect facility or control equipment performance. (3) The executive director shall be notified in writing of all other permit alterations not specified in paragraph (2) of this subsection.

(4) A request for permit alteration 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 § 116.111(3) of this title.

(5) Permit alterations are not subject to the requirements §116.111(3) ofthis title. (d) Exemption under Chapter 106 of this title (relating to Exemptions fromPermitting) in lieu of permit amendment or alteration.

(1) Apermit amendment or alteration is not required ifthe changes to the permitted facility qualify for an exemption under Chapter 106 of this title unless prohibited by permit condition as provided in § 116.115 ofthis title (relating to General and Special Conditions) .

(2) All exempted changes to a permitted facility shall be incorporated into that facility's permit whenthe permit is amended or renewed.(e) Changes to qualified facilities. (1) Notwithstanding any other subsection of this section, a physical or operational change may be made to a qualified facility if it can be determined that the change does not result in: (A) a net increase in allowable emissions of any air contaminant ; and (B) the emission of any air contaminant not previously emitted. (2) In making the determination in paragraph (1) of this subsection, the effect on emissions of the following shall be considered: (A) any air pollution control method applied to the qualified facility; (B) any decreases in allowable emissions fromother qualified facilities at the same commission air quality account number that have received a preconstruction permit or permit amendment no earlier than 120 months before the change will occur ; and (C) any decrease in actual emissions fromother qualified facilities at the same commission air quality account number that are not included in subparagraph (B) ofthis paragraph.(3) The determination in paragraph (1) of this subsection shall be based on the

allowable emissions for air contaminant categories and any allowable emissions for individual compounds. If a physical or operational change would result in emissions of a air contaminant category or compound above the allowable emissions for that air contaminant category or compound, the amount above the allowable emissions must be offset by an equivalent decrease in emissions at the same facility or a different facility. In making this offset, the following applies. (A) The offset shall be based on the same time periods (e .g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur. (B) Emissions of different compounds within the same air contaminant category may be interchanged. (C) For allowable emissions for individual compounds, any interchange shall adjust the emission rates for the different compounds in accordance with the ratio of the effects screening levels of the compounds. (D) For allowable emissions for air contaminant categories, interchanges shall use the unadjusted emission rates for the different compounds. (E) The effects screening level shall be determined by the executive director.



### 87(F) An air contaminant category is a group of related compounds, such as

volatile organic compounds, particulate matter, nitrogen oxides, and sulfur compounds.

(4) Persons making changes to qualified facilities under this subsection shall comply with the applicable requirements of §116.117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities) and § 116.118 ofthis title (relating to Pre-change Qualification) .



### (5) As used in this subsection, the term"physical and operational change" does not include: (A) construction of a newfacility; or (B) changes to procedures regarding monitoring, determination of emissions and recordkeeping that are required by a permit.

(6) Additional air pollution control methods may be implemented for the purpose of making a facility a qualified facility. 1'he implementation of any additional control methods to qualify a facility shall be subject to the requirements of this chapter. The owner or operator shall : ' (A) utilize additional control methods that are as effective as best available control technology (BACT) required at the time the additional control methods are implemented; or



### 88(B) demonstrate that the additional control methods, although not as effective

as BACT, were implemented to comply with a law, rule, order, permit, or implemented to resolve a documented citizen complaint .

(7) For purposes of this subsection and § 116.117 of this title, the following subparagraphs apply. (A) Intraplant trading means the consideration of decreases in allowable and actual emissions fromother qualified facilities in accordance with paragraph (2) of this subsection. (B) The allowable emissions fromfacilities that were never constructed shall not be used in intraplant trading. (C) The decreases in allowable and actual emissions shall be based on emission rates for the same time periods (e.g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur and for which an intraplant trade is desired.



### (D) Actual emissions shall be based on data that is representative of the, emissions actually achieved from afacility during the relevant time period (e .g., hourly or annual rate) .

(8) The existing level ofcontrol may not be lessened for a qualified facility.



### 89(f) Use of credits. Notwithstanding any other subsection of this section, discrete emission

reduction credits may be used to exceed permit allowables as described in § 101 .29(d)(4)(v) ofthis title (relating to Emission Credit Banking and Trading) if all applicable conditions of §101 .29 of this title are met. This subsection does not authorize any physical changes to a facility. §116.117. Documentation and Notification of Changes to Qualified Facilities. (a) Persons making changes under §116.116(e) of this title (relating to Changes to Facilities) shall maintain documentation at the plant site demonstrating that the changes satisfy § 116.116(e) of this title. If the plant site is unmanned, the regional manager may authorize an alternative site to maintain the documentation. The documentation shall be made available to representatives of the commission upon request . The documentation shall include:

(1) quantification of all emission increases and decreases associated with the physical or operational change;

(2) a description ofthe physical or operational change; (3) a description of any equipment being installed; and (4) sufficient information as necessary to show that the project will comply with § 116.150 and § 116.151 of this title (relating to Nonattainment Review) and § § 116.160-116.163 of this 

### 90title (relating to Prevention of Significant Deterioration Review) and with Subchapter C ofthis chapter

(relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40CFR Part 63)) . (b) Persons making such changes to qualified facilities shall comply with the following notification requirements .

(1) Annual report. For changes to qualified facilities when there is no intraplant trading under §116.116(e)(2) ofthis title, an annual report shall be submitted to the appropriate regional office ofthe commission by August 1 of each year. The report shall include all changes made under § 116.116(e) during the immediately preceding annual period July 1-June 30 . This reporting period and the due date may be changed with the agreement ofthe commission's regional office. The annual report shall contain a PI-E formfor each change. The report need not include changes previously submitted by PI-E formto the commission under paragraphs (2) or (3) of this subsection or which have been incorporated into the permit for the facility.

(2) Post-change notification. Post-change notification shall be required for changes to qualified facilities for which there is intraplant trading below the reportable limit. The notification shall be submitted on a PI-E formto the commission's New Source Review

Permits Division within 30 days after the change occurs.(3) Pre-change notification only. Pre-change notification shall be required if a

physical or operational change at a qualified facility will affect compliance with a permit special condition. The notice shall be made to the commission prior to the change. It shall identify the affected special condition and indicate the change needed or the desire to remove the special condition fromthe permit. The permit holder is relieved fromcomplying with the permit special condition upon the filing of the notice, provided the change complies with § 116.116(e) of this title. ,

(4) Pre-change notification and approval . Pre-change notification shall be required for changes to qualified facilities for which there is intraplant trading above the reportable limit . The notification of the change shall be submitted on a PI-E formto the commission's New Source Review Permits Division before the change may occur. The change may occur after the receipt of written notification fromthe commission that there are no objections, or 45 days after the PI-E is received by the commission, whichever occurs first.

(5) Reportable limit. The executive director shall establish reportable limits. A reportable limit is either: (A) . an emission rate that is adjusted based on a factor that accounts for~a ratio ofthe effects screening levels ofthe different compounds and the difference in location ofemissions involved in an intraplant trade; or(B) an emission rate that results in a sum total of modeled ground level concentration for the account that shall not exceed two times the effects screening level at any point off property. (c) For facilities that have received a preconstruction permit, all changes for which the notification procedure ofsubsection (b) ofthis section has been used shall be incorporated into the permit when the permit is amended or renewed. (d) Nothing in this section shall limit the applicability of any federal requirement . §116.118. Pre-change Qualification. (a) Ifeither of the following conditions exists, it will be necessary to establish that a facility is a qualified facility before a physical or operational change may be made under the notification procedure of § 116.117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities) : (1) the facility is a qualified facility on the basis of best available control techndlogy and the requirement for the facility type has not been previously established by the executive director; or(2) the facility does not have allowable emissions established for an air contaminant

relevant to the change in a maximumallowable emissions rate table, PI-8 form, or PI-E form . (b) The pre-change qualification shall be made by submitting a PI-E formto the commission's New Source ReviewPermits Division. The facility shall be qualified in accordance with the information contained in the PI-E form after receipt of written notification fromthe commission that there are no objections, or 45 days after the PI-E formis received by the commission, whichever occurs first . The pre-change qualification may be submitted at the same time as a pre-change notification under § 116.117(b) of this title or at any other time prior to making a change to a qualified facility.SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS COMPLIANCE HISTORY 

### §§116.120-116

.126

STATUTORY AUTHORITY. The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040and §382.041, which provide for public records and submission ofconfidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source review

authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling; monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 

### 95distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws ofthis state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation ofuncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial review of commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General ' Appropriations Act, 75th Legislature, 1997.§116.120 . Applicability. 

### §116.121 . Exemptions. §116.122. Contents of Compliance History. 

### §116.123. Effective Dates. §116.124. Public Notice of Compliance History. §116.125. Preservation of Existing Rights and Procedures. §116.126. Voidance of Permit Applications.

### SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS DIVISION2 : COMPLIANCE HISTORY

§§116.120-116.126

STATUTORY AUTHORITY. The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy ofthe State ofTexas and ofthe TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling; monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 

### 98distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance offederal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director ; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for '-ho may be an affected person; notice of applications; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, § 167, General Appropriations Act, 75th Legislature, 1997.§116.120. Applicability. As part of the review of a construction permit, amendment, or renewal : (1) The executive director shall compile a compliance history for: (A) the existing site when the application is for a newpermit, amendment, or renewal at the existing site; (B) a site with similar facilities, ifany, owned or operated by the applicant in Texas when the application is for a new facility at a newsite. The commission may require the applicant to indicate which facilities the applicant considers to be similar.

(2) The applicant shall provide the commission with a compliance history for sites with similar facilities, if any, owned or operated by the applicant in other states when: (A) the application is for a new facility at a new

site; and 

### (B) theapplicant does not own or operatesimilar facilities in Texas. (3) If the applicant has no compliance history inthe United States, the applicant shall provide the commission with a compliance history for any similar facilities owned or operated by: 

### 100(A) a person who is presently an officer, director, or agent of the applicant; (B) a parent corporation, subsidiary, or predecessor in interest of the 

### applicant; (C) one who owns 20%or more of the applicant, whether directly, as a shareholder, partner, beneficiary, or otherwise; or (D) one who controls the applicant or has the ability to direct the conduct of the applicant. 

### §116.121 . Exemptions. The compliance history is not required if the total increased actual emissions of any specific air contaminant (e .g., benzene, arsenic, etc.) at the site will be accompanied by greater than a 1 .1 to 1 reduction of the same specific air contaminant at the site.

§116.122. Contents of Compliance History. (a) The compliance history shall include all of the following compliance events and associated information involving the facility that is the subject of the permit application: 101(1) for Texas facilities: (A) criminal convictions known to the commission and civil orders,judgments, and decrees identified by stating: (i) the style ofthe case; (ii) the tribunal issuing the conviction orjudgment; 

### (iii) the docket number andthe date ofaction; and (iv) the general nature ofthe alleged violation; (B) administrative enforcement orders identified by stating: 

### (i) the name or style ofaction; (ii) the agency issuing the order ; (iii) the docket number and the date of the order; and (iv) the general nature of the alleged violation;

102(C) compliance proceedings identified by stating: (i) the name or style ofaction; (ii) the general nature of the alleged violation; (2) for United States facilities outside Texas: 

### (A) criminal convictions andciviljudgments identified by stating: (i) the style ofthe case; (ii) the tribunal issuing the conviction orjudgment; (iii) the docket number and date of action; and (iv) the general nature ofthe alleged violation; (B) administrative enforcement orders identified by stating: (i) the name or style of action;



### 103(ii) the agency issuing the order; (iii) the docket number and the date ofthe order; and (iv) the general nature of the alleged violation; (C) for notices of violation issued by the EPA : (i) the name of the action; (ii) the EPA identification number and date of notice; and 

### (iii) the general nature of the allegedviolation. (b) Violations offugitive emission monitoring and recordkeeping requirements imposed either by §101 .20(1) and (2) of this title (relating to Compliance with Environmental Protection Agency Standards), or state implementation plan requirements applicable to major sources in nonattainment areas shall not be included in the compliance history where:

(1) the violations occurred after the effective date of this rule, and have been the subject of a commission administrative enforcement action, and the commission classified the violations as not being subject to compliance history review ; or 

### 104(2) the violations occurred during the five years preceding the effective date of this

rule and have been the subject of a commission administrative enforcement action in which: (A) the commission did not classify the violations as either major seriousness or major impact for the purpose of administrative review ; and 

### (B) the commission assessed a total administrative penalty of less than $20,000 for the violations. (c) The commission may request an analysis of the significance of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application. The commission request shall list specific compliance events requiring such an analysis. 

### §116.123. Effective Dates. (a) The requirements under §§116.120-116.126ofthis title (relating to Compliance History) apply only to applications filed on or after December 9, 1992. (b) For applications filed: (1) before June 1, 1993, neither the commission nor the applicant is required to include compliance events occurring before June 1, 1988; 

### 105(2) on or after June 1, 1993, neither the commission nor the applicant is required to

include compliance events occurring more than five years prior to the date on which the application is filed. §116.124

. Public Notice of Compliance History.

~When public notice is required under § 116.131 ofthis title (relating to Public Notification Requirements), the applicant shall include the following statement in the notice: "The facility's compliance file, ifany exists, is available for public reviewin the regional office of the Texas Natural Resource Conservation Commission." §116.125. Preservation of Existing Rights and Procedures. Nothing in this subchapter (concerning Compliance History) shall : (1) diminish the rights of any party in a contested case hearing to raise any issue authorized by Texas Health and Safety Code, §382.0518(c) ;

(2) diminish the rights ofany person to request and obtain compliance history information fromthe commission;(3) limit the authority of the commission to request and consider any other information

that is relevant to the application under the law ; or (4) create any right in third parties which did not exist before the effective date of this subchapter . §116.126. Voidance of Permit Applications. If an applicant does not submit compliance history information within 180 days after written request fromthe executive director, the commission will void the permit application. The applicant shall also forfeit the fees associated with the permit application. Anew permit application shall be required for further consideration by the commission.

### SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS DIVISION 3: PUBLICNOTIFICATIONANDCOMMENT PROCEDURES

§§116 .130-116.134,116 .136,116.137

STATUTORY AUTHORITY. The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality ofthe state's air ; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations ; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §38? .040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling; monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness ofapplications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 

### 108distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes ofthe TCAAand other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial review of commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, § 167, General ' Appropriations Act, 75th Legislature, 1997.§116.130. Applicability. (a) Any person who applies for a newpermit or permit renewal shall be required to publish notice of the intent to construct a new facility or modify an existing facility or renewa permit . The notice shall be published in a newspaper in general circulation in the municipality where the facility is located or to be located. Any person who applies for a permit amendment shall provide public notification as required by the executive director. (b) Upon written request by the owner or operator of a facility which previously has received a permit or special permit fromthe commission, the executive director, or designated representative may exempt the relocation ofsuch facility fromthe requirements of this section if there is no indication that operation of the facility at the proposed newlocation will significantly affect ambient air quality and no indication that operation of the facility at the proposed newlocation wilt r.3use a condition of air pollution. (c) Applications subject to the requirements of Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40CFRPart 63)), whether for construction or reconstruction, are subject to the public notice requirements ofthis section.§116.131 . Public Notification Requirements.

(a) Notification by applicant . If the application is complete, for any permit subject to the FCAA, Title 1, Part C or D, or to Title 40Code of Federal Regulations (CFR), Part 51 .165(b), the executive director shall state a preliminary determination to issue or deny the permit and require the applicant to conduct public notice of the proposed construction. If an application is received for a permit not subject to the FCAA, Part C or D, or to 40CFR51 .165(b), the executive director shall require the applicant to conduct public notice of the proposed construction. In all cases, public notice shall include the information specified in § 116.132 ofthis title (relating to Public Notice Format) and the applicant shall provide such notice using each ofthe methods specified in § 116.132 of this title. The executive director may specify that additional information needed to satisfy public notice requirements of 40 CFR §52.21 also be included in the notice published under §116.132 ofthis title. (b) Availability of application for review . The executive director shall make the completed application (except sections relating to confidential information) and the preliminary analyses of the application completed prior to publication ofthe public notice available for public inspection during normal business hours at the commission's Austin office and at the appropriate commission regional office in the region where construction is proposed throughout the comment period established iin the notice published under § 116.132 ofthis title.§116.132. Public Notice Format . (a) Publication in public notices section of newspaper. At the applicant's expense, notice of intent to obtain a permit to construct a facility, modify an existing facility, or to seek permit renewal review shall be published in the public notice section of two successive issues of a newspaper of general circulation in the municipality in which the facility is located or is proposed to be located, or in the municipality nearest to the location or proposed location ofthe facility. The notice shall contain the following information:

(1) - (5) (No change.) (6) preliminary determination ofthe executive director to issue or not issue the permit (for permits subject to the FCAA, Title I, Part C or D, or to 40 Code of Federal ?'_. ;alations 51 .165(b)) ; (7) location and availability ofcopies of the completed permit application and the executive director's preliminary analyses;

(8) - (9) (No change.) (10) notification that a person who may be affected by emission of air contaminants fromthe facility is entitled to request a hearing in accordance with commission rules; and

112(11) name, address, and phone number ofthe appropriate commission office to be

contacted for further information. (b) Publication elsewhere in the newspaper. Another notice with a size ofat least 96.8 square centimeters (15 square inches) and whose shortest dimension is at least 7 .6centimeters (three inches) shall be published in a prominent location elsewhere in the same issue ofthe newspaper and shall contain the information specified in subsection (a)(1)-(4) of this section and note that additional information is contained in the notice published under subsection (a) of this section in the public notice section of the same issue. (c) Additional alternate language public notice. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or prop-- ' facility provides a bilingual education programas required by the Education Code, Chapter 29, Subchapter B, and 19 TAC §89.1205(a) or if either school has waived out of such a required bilingual education programunder the provisions of 19 TAC §89.1205(g) . Schools not governed by the provisions of 19TAC §89.1205 shall not be considered in determining applicability ofthe requirements of this subsection. Each affected facility shall meet the following requirements.

(1) The applicant shall publish an additional notice at least once in each alternate language in which the bilingual education programis taught. Ifthe nearest elementary or middle school has waived out ofthe requirements of 19TAC §89.1205(a) under 19TAC §89.1205(g), the

113notice shall be published in the alternate languages in which the bilingual education program would

have been taught had the school not waived out ofthe bilingual education program . 

### (2) - (8) (No change.) (d) Exemptions fromalternate language notification. Elementary or middle schools that offer English as a second language under 19TAC §89.1205(e), and are not otherwise affected by 19TAC §89.1205(a), will not trigger the requirements of subsection (c) ofthis section. §116.133. Sign Posting Requirements. (a) At the applicant's expense, a sign or signs shall be placed at the site of the proposed facility declaring the filing of an application for a permit and stating the manner in which the commissio- may be contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements:

(1) - (4) (No change.) (5) signs shall include the words "Texas Natural Resource Conservation Commission," and the address ofthe appropriate commission regional office in no less than one-inch boldface capital lettering and 3/4-inch boldface lower case lettering; and

114(6) signs shall include the phone number of the appropriate commission office in no

less than two-inch boldface numbers. 

### (b) (Nochange.) (c) Each sign placed at the site must be located within ten feet of each-(every) property line paralleling a street or other public thoroughfare. Signs must be visible fromthe street and spaced at not more than 1,500-foot intervals. Aminimumof one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare. The commission may approve variations fromthese requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public. (d) The ~ ~ ~~~iission may approve variations fromthe requirements of subsection (c) of this section if the applicant has demonstrated that it is not practical to comply with the specific requirements of subsection (c) of this section and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval fromthe commission under this subsection must be received before posting signs for purposes ofsatisfying the requirements ofthis section. 

### (e) (Nochange.) (f) Alternate language sign posting. The requirements ofthis subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed 

### 115facility provides a bilingual education programas required by the Education Code, Chapter 29,

Subchapter B, and 19 TAC §89.1205(a) c, ; if either school has waived out of such a required bilingual education programunder the provisions of 19 TAC §89.1205(g) . Schools not governed by the provisions of 19 TAC §89.1205(a) shall not be considered in determining applicability 'the requirements of this subsection. Each affected facility shall meet the following requirements.

' (1) The applicant shall post an additional sign in each alternate language in which the bilingual education programis taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC §89.1205(a) under 19TAC §89.1205(g), the alternate language signs shall be published in the alternate languages in which the bilingual education programwould have been taught had the school not waived out of the bilingual education program . (2) - (4) (No change.) (g) Exemption fromalternate language signposting. Elementary or middle schools that offer English as a second language under 19TAC §89.1205(e), and are not otherwise affected by 19 TAC §89.1205(a), will not trigger the requirements of subsection (f) of this section. §116.134

. Notification of Affected Agencies. When newspaper notices are published in accordance with § 116.132 of this title (relating to Public Notice Format), the permit applicant shall furnish a copy of such notices and date of publication 

### 116to the commission in Austin; the EPAregional administrator in Dallas; all local air pollution control

agencies withjurisdiction in the county in which the construction is to occur; and the air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions fromthe newor modified facility. Along with such notices furnished to the commission, the permit applicant shall certify that the signs required by §116.133 of this title (relating to Sign Posting Requirements) have been posted in accordance with the provisions ofthat section. §116.136. Public Comment Procedures. (a) Comment period. Interested persons may submit written comments, including requests for public hearings under TCAA, §382.056, on the permit application and on the executive director's preliminary determination or analysis. The public comment and timely hearing requests shall be processed under Chapter 55 -: hchapter B ofthis title (relating to Hearing Requests, Public Comment) . (b) (No change.)

§116.137. Notification of Final Action by the Commission. (a) - (b) (No change.)

### SUBCHAPTER B : NEW SOURCE REVIEW

PERMITS DIVISION 4: PERMIT FEES §§116.140,116.141,116.143

STATUTORY AUTHORITY. The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air ; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and

118distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement offederal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policv "- .115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.12 .1 and §5.122, which provide for public information; and delegation ofuncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial review of commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, § 167, General Appropriations Act, 75th Legislature, 1997.§116.140. Applicability. Any person who applies for a permit to construct a new facility or to modify an existing facility, or for an amendment to an existing permit under § 116.110 of this title (relating to Applicability) shall remit, at the time ofapplication for such permit, a fee based on the estimated capital cost of the project. The fee will be determined as set forth in §116.141 of this title (relating to Determination of Fees) . Fees will not be charged for permit alterations, amendments to special permits, site approvals for permitted portable facilities, changes of ownership, or changes of location of permitted facilities. _ §116.141 . Determination of Fees. 

### (a) (No change.) (b) Thefollowing fee schedule shall be used by a permit applicant to determine the fee to be remitted with a permit application.

(1) Ifthe estimated capital cost of the project is less than $300,000 or if the project consists of new

facilities controlled and operated directly by the federal government and the federal regulations for Prevention of Significant Deterioration (PSD) Review do not apply, the fee is $450 . The provisions of subsections (c) and (d) ofthis section do not apply to a project consisting of new facilities controlled and operated directly by the federal government. 

### 120(2) (No change.)

(c) If the estimated capital cost of the project is less than $50 million, the permit applicant shall include a certification that the estimated capital cost of the project is correct . Certification of the estimated capital cost of the project may be spot-checked and evaluated for reasonableness during permit processing. The reasonableness ofproject capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed as follows.

(1) Direct costs are as follows: (A) process and control equipment not previously owned by the applicant and not currently authorized under this chapter; (B) - (G) (No change.) (2) (No change.) 

### (d) - (e) (No change.)§116.143. Payment of Fees. All permit fees will be remitted in the formof a check or money order made payable to the Texas Natural Resource Conservation Commission or TNRCC and delivered with the application for permit or amendment to the TNRCC, P. O . Box 13088, MC214, Austin, Texas 78711-3088. Required fees must be received before the agency will begin examination of the application.

(1) (No change.) (2) Return of fees. Fees must be paid at the time an application for a permit or amendment is submitted. If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, one-half ofthe fee will be refunded except that the entire fee will be refunded for any such application for which an exemption under Chapter 106 of this title (relating to Exemptions fromPermitting) is allowed. Nofees will be refunded after a deficient application has been voided or after a permit or amendment has been issued by the agency.

### SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS DIVISION 6: PREVENTION OF SIGNIFICANT DETERIORATION REVIEW §116.160, §116.161

STATUTORY AUTHORITY. The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State ofTexas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes ofthe TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations ; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal ofcommission actions; §382.04t' ' §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness ofapplications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 

### 123distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes ofthe TCAA and other laws ofthis state; §5.105, which provides the commission with the authority to

°.stablish and approve commissionpolicy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation ofuncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal ofdistrict courtjudgment; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, § 167, General ' Appropriations Act, 75th Legislature, 1997.§116.160. Prevention of Significant Deterioration Requirements.

(a) Each proposed newmajor source or major modification in an attainment or unclassifiable area shall comply with the Prevention of Significant Deterioration (PSD) of Air Quality regulations promulgated by the EPA in Title 40 Code of Federal Regulations (CFR) at 40 CFR 52.21 as amended June 3, 1993 (effective June 3, 1994) and the Definitions for Protection ofVisibility promulgated at 40 CFR 51' .301, hereby incorporated by reference. (b) - (d) (No change.) §116.161. Source Located in an Attainment Area with a Greater Than De Minimis Impact. The commission may not issue a permit to any new major stationary ~n>>r~e or major modification located in an area designated as attainment or unclassifiable, for any National Ambient Air Quality Standard (NAAQS) under FCAA, §107, ifambient air impacts fromthe proposed source would cause or contribute to a violation of any NAAQS. In order to obtain a permit, the source must reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to eliminate the predicted exceedances of the NAAQS. Amajor source or major modification will be considereii to cause or contribute to a violation of a NAAQS when the emissions from such source or modification would, at a minimum, exceed the de minimis impact levels specified in § 101 .1 of this title (relating to Definitions) at any locality that is designated as nonattainment or is predicted to be nonattainment for the applicable standard. , 

### 125

### SUBCHAPTER B: NEW SOURCE REVIEW

PERMITS DIVISION 7 : EMISSION REDUCTIONS : OFFSETS

§116.170,§116.174

STATUTORY AUTHORITY. The amendments areadopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy ofthe State of Texas 

### and of the TCAA to safeguard theair of thestate; §382.003, which provides definitions ofterms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes ofthe TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notic- , 'hearings; and appeal ofcommission actions; §382.040and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives ; to determine administrative completeness ofapplications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and 

### 126distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5 .115 and §5.116, which provide for who may

. !-- -;m affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial review of commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997.

### §116.170. Applicability for Reduction Credits. At the time ofapplication for a permit in accordance with this chapter, any applicant who has effected air contaminant emission reductions may also apply to the executive director to use such emission reduction's to offset emissions expected fromthe facility for which the permit is sought, provided that the following conditions are met.

(1) The emission reductions are not required by any provision ofthe Texas State Implementation Plan as promulgated by the EPA in 40 Code of Federal Regulations, Part 52, Subpart SS, nor by any other federal regulation under the FCAA, as amended, such as New Source Performance Standards. Minimum offset ratios as specified in Table I of §116.12 ofthis title (relating to Nonattainment ReviewDefinitions) shall be used in areas designated as nonattainment areas.



### (2) (No change.) (3) Emissions increases fromrocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source, shall be allowed to be offset by alternative or innovative means, provided the following conditions are met: (A) (No change.)(B) the source demonstrates to the satisfaction ofthe commission that it has

used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source;

(C) (No change.) (D) the source will comply with an alternative measure, imposed by the commission, designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the commission may impose an emissions fee to be paid which shall be an amount no greater than 1 .5 times the average cost of stationary source control measures adopted in that area during the previous three years. §116 .174. Determination by Executive Director To Authorize Reductions. The executive director may grant authority to a permit applicant to use prior emission reductions and emission reductions granted to the applicant by another entity (either public or private) in accordance with §116.170ofthis title (relating to Applicability for Reduction Credits) if the ~ commission determines that the prior emission reductions have, in fact, occurred and, when considered with other emission reductions that may be required by the permit as well as contaminants that will be emitted by the new

source, will result in compliance with §116.150ofthis title (relating to NewMajor Source or Major Modification in Ozone Nonattainment Areas), § 116.151 ofthis title (relating to New 

### 129Major Source or Major Modification in Nonattainment Areas Other Than Ozone), § 116.160 of this title

(relating to Prevention of Significant Deterioration Requirements), and § 116.162 of this title (relating to Evaluation of Air Quality Impacts), as applicable, in the area where the new source is to be located. Prior as well as future emission reductions to be used as an offset shall be made conditions for granting authority to construct the proposed new source and shall be enforced.

### SUBCHAPTERC: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTEDORRECONSTRUCTEDMAJORSOURCES

(FCAA, §112(G), 40 CFRPART 63) §§116 .180-116.183

STATUTORY AUTHORITY. The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State ofTexas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions ofterms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and



### 131§382.053, which provide for consideration of impacts and nuisance conditions near schools; and

distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director ; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws ofthis state; §5 1 1--' which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997.§116.180. Applicability.

(a) The provisions of this subchapter implement FCAA, §112(g), Modifications, and 40Code of Federal Regulations Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology, as amended December 27, 1996. Affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to this subchapter are those sources for which EPA has not promulgated a MACT standard under 40 CFRPart 63. For purposes ofthis subchapter:

(1) "Construct a major source" means the following: (A) to fabricate, erect, or install at any green field site a stationary source or group of stationary sources which is located within a contiguous area and under common control and which emits or has the potential to emit ten tons per year of any hazardous air pollutant (HAP) or 25 tons per year of any combination of HAPs;



### (B) to fabricate, erect, or install at any developed site a new process or production unit which in andof itself emits or has the potential to emit ten tons peryear of any HAPor 25 tons per year of any combination of HAPs, unless the process or production unit satisfies clauses (i)- (vi) of this subparagraph:(i) all HAPs emitted by the process or production unit that would

otherwise be controlled under the requirements of this subchapter will be controlled by emission control equipment which was previously installed at the same site as the process or production unit ; (ii) either of the following regarding control of HAP emissions: (I) the executive director has determined within a period of five years prior to the fabrication, erection, or installation of the process or production unit that the existing emission control equipment represented best available control technology (BACT), lowest achievable emission rate (LAER) under Title 40Code of Federal Regulations (CFR) Part 51 or 52, toxics-best available control technology (T-BACT), or maximum achievable control technology (MACT) based on state air toxic rules for the category ofpollutants which includes those HAPs to be emitted by the process or production unit; or (II) the,executive director determines that the control of HAP emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other well-controlled similar sources (i .e., equivalent to the level of control that would be provided by a current BACT, LAER, T-BACT, or state air toxic rule MACT determination) ; (iii) the executive director determines that the percent control efficiency for emissions of HAPfrom all sources to be controlled by the existing control equipment will

134be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion

of the newprocess or production unit; (iv) the executive director has provided notice and an opportunity for public comment concerning its determination that criteria in clauses (i)-(iii) of this subparagraph apply and concerning the continued adequacy of any prior LAER, BACT, T-BACT, or state air toxic rule MACT determination; (v) if any commenter has asserted that a prior LAER, BACT, TBACT, or state air toxic rule MACT determination is no longer adequate, the executive director has determined that the level of control required by that prior determination remains adequate; and (vi) any emission limitations, work practice requirements, or other terms and conditions upon which the determinations in clauses (i)-(v) ofthis subparagraph are predicated will be construed by the executive director as applicable requirements under FCAA, §504(a), and either have been incorporated into any existing permit issued under Chapter 122 of this title (relating to Federal Operating Permits) for the affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) or will be incorporated into such permit upon issuance.

(2) "Reconstruct a major source" means the replacement of components at an existing process or production unit that in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAP, whenever: 

### 135(A) the fixed capital cost of the newcomponents exceeds 50%of the fixed

capital cost that would be required to construct a comparable process or production unit ; and (B) it is technically and economically feasible for the reconstructed major source to meet the applicable MACT emission limitation for newsources established under this subchapter. (b) The requirements of this subchapter apply to an owner or operator of an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) who constructs or reconstructs on or after June 29, 1998, the effective date of §112(g)(2)(B), unless the affected source in question has been specifically regulated or exempted fromregulation under a standard issued under the FCAA, §112(d), (h), or (j) and incorporated in another subpart of Part 63, or the owner or operator of such affected source has received all necessary air quality permits fo- :^~ich construction or reconstruction project before the effective date of §112(g)(2)(B) . Administratively complete applications submitted prior toJune 29, 1998, are not subject to the requirements of this subchapter. (c) Affected sources as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to the requirements ofthis subchapter are not eligible to use a standard permit under Subchapter F ofthis chapter (relating to Standard Permits) unless the terms and conditions of the specific standard permit meet the requirements ofthis subchapter .§116.181. Exclusions.

(a) The requirements of this subchapter do not apply to electric utility steamgenerating units unless and until such time as these units are added to the source category list under FCAA, §112(c)(5) . (b) The requirements ofthis subchapter do not apply to stationary sources that are within a source category that has been deleted fromthe source category list under FCAA, §112(c)(9) . (c) The requirements-of this subchapter do not apply to research and development activities, as defined in 40Code of Federal Regulations, §63.41 . (d) Nothing in this subchapter shall prevent a state or local agency fromimposing more stringent requirements than those contained in this subchapter. 

### §116.182. Application. Consistent with the requirements of 40Code of Federal Regulations, §63.43 (concerning maximumachievable control technology determinations for constructed and reconstructed major 

### sources), the owner or operator of a proposed affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall submit a permit application as described in §116.110 of this title (relating to Applicability) .



### 137§116.183. Public Notice Requirements. Proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with the public notice requirements contained in §116.130 of this title (relating to Applicability) .

### SUBCHAPTER D: PERMIT RENEWALS §§116 .310-116.314 STATUTORY AUTHORITY. The repeals are adopted under theTexas Health andSafety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy ofthe State ofTexas and of the TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality ofthe state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations ; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040and §382.041, which provide for publir .; ;;ords and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply.with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a~modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives ; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for 

### 139administration and enforcement of federal operating permits; issuance offederal operating permits and

appeal ofdelays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction ofcertain concrete plants; §382.0591, which provides for denial of applications for permits ifassistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director ; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice ofapplications ; and recess of hearings; §5 .121 and §5.122, which pro-J.e for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, § 167, General Appropriations Act, 75th Legislature, 1997.§116.310. Notification of Permit Holder.

§116.311. Permit Renewal Application. §116.312. Public Notification and Comment Procedures. §116.313. Renewal Application Fees. 

### §116 .314. ReviewSchedule.SUBCHAPTER D : PERMIT RENEWALS §§116.310-116.314

STATUTORY AUTHORITY. The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality ofthe state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal ofcommission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, whichprovide for 

### 142administration and enforcement of federal operating permits; issuance of federal operating permits and

appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for peimits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial ofapplications for permits ifassistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws ofthis state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of a~ ~ -ions; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal ofdistrict courtjudgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, § 167, General Appropriations Act, 75th Legislature, 1997.§116.310. Notification of Permit Holder. The executive director shall provide written notice to the permit holder that the permit is scheduled for review

. Such notice must be provided by certified or registered United States mail no less than 180 days prior to the expiration of the permit. The notice must specify the procedure for filing an application for reviewand the information to be included in the application. Under Texas Civil Statutes, Article 9027, the commission shall exempt a permit holder fromany increased fee or other penalty for failure to renew the permit if the individual establishes, to the satisfaction ofthe commission, that the failure to renewin a timely manner occurred because the individual was on active duty in the United States Armed Forces serving outside the State of Texas. §116.311 . Permit Renewal Application. (a) In order to be granted a permit renewal, the permit holder shall submit information in support of the application which demonstrates that :

(1) the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments, and any previously granted renewal, unless otherwise authorized for a qualified facility;(2) the facility meets the requirements of any applicable New Source Performance Standards as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA under the authority of the FCAA, §111, as amended;

(3) the facility meets the requirements of any applicable emission standard for hazardous air pollutants as listed under Title 40 CFRPart 61, promulgated by EPAunder the authority ofthe FCAA, §112, as amended; and

(4) the facility meets the requirements of any applicable maximum achievable control technology standard as listed under 40CFRPart 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40CFR 63)) .

(5) the facility meets the requirements of Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) . (b) In addition to the requirements in subsection (a) of this section, if the commission determines it necessary to avoid a condition of air pollution or to ensure compliance with otherwise applicable federal or state air quality control requirements, then:(1) the applicant may be required to submit additional information regarding the

emissions fromthe facility and their impacts on the surrounding area; and

(2) the commission shall impose as a condition for renewal only those requirements the executive director determines to be economically reasonable and technically practicable considering the age ofthe facility and the impact of its emissions on the surrounding area. (c) A compliance history reviewmust be conducted in accordance with §§116.121-116.126 of this title (relating to Compliance History) . The renewal application must demonstrate that the facility is or has been in substantial compliance with the provisions of the TCAA and the terms of the existing permit . Failure to demonstrate substantial compliance shall result in the renewal not being granted. If it is found that violations in the compliance history constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including failure to make a timely and substantial attempt to correct the violations, the renewal shall be denied. If a contested case hearing has not been called, the executive director must notify the applicant ofthe intent to recommend denial and state the basis of the findings. The applicant will be given an opportunity to respond to the notice. If the findings reflect a pattern of disregard for applicable regulations which do not warrant denial, additional conditions may be placed in the permit. (d) An application for renewal must be submitted within 90 days prior to expiration ofthe permit or the permit will expire. The executive director may extend the time period for submitting an application. 

### 146(e) Any permit issued: (1) before December 1, 1991, is subject for review15 years after the date of issuance; (2) on or after December l, 1991, is subject for review every ten years after the date f issuance. (3) at nonfederal sources on or after December l, 1991, may, for cause, contain a provision requiring renewal between five and ten years. §116.312. Public Notification and Comment Procedures. (a) The executive director shall mail a written ` ;ce to the permit holder within 30days after receipt of a complete application. The notice will confirmreceipt ofthe application and shall require the applicant to provide public notice of the application for permit renewal in accordance with Subchapter B of this chapter (relating to New Source Review

Permits) . (b) The sign heading required under §116.133(a)(2) of this title (relating to Sign Posting Requirements) shall read "PROPOSED RENEWAL OF AIRQUALITY PERMIT."§116.313. Renewal Application Fees. (a) The fee for renewal is based on the total annual allowable emissions fromthe permitted facility to be renewed, according to the following table. Figure: 30TAC §116.313(a)



### RENEWAL FEETABLE*

X = TOTALALLOWABLE INCREMENTAL (TONS/YEAR) - BASE FEE FEE X<_ 5 $300 -- 5 < X!~ 24 $300 $35/ton 24< X<_ 99 $965 $25/ton 99< X< 994 $2,840 $8/ton X > 994 $10,000 -- Minimumfee: $300 Maximum

fee: $10,000

* To calculate the fee, multiply the number of tons in excess of the lower limit of the appropriate category by the incremental fee, then add this amount to the base fee. For example, if total emissions ofall air contaminants are 50tons per year, the total fee would be $1,615 (base fee of $965, plus incremental fee of $25 x 26 tons or $650) .(b) Fees are due and payable at the time the renewal application is filed. No fee will be

accepted before the permit holder has been notified by the commission that the permit is scheduled for review . All permit reviewfees shall be remitted by check or money order payable to the Texas Natural Resource Conservation Commission (TNRCC) and mailed to the TNRCC, P.O . Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the agency will consider an application to be complete. 

### §116 .314. ReviewSchedule. (a) Renewal of permit. The executive director shall renewa permit and notify the permit holder in writing if it is determined that the facility meets the requirements ofthis subchapter. (b) Denial of renewal . Prior to denial, the executive dire- ;hall provide notice to the permit holder with a report which describes the basis for denial .

(1) If denial is based on failure to meet the requirements of § 116.311(a) or (b) of this title (relating to Permit Renewal Application), the report shall establish a schedule for compliance with the renewal requirements. (A) The report shall be forwarded to the permit holder no later than 180 days after the commission receives a completed application.



### 149(B) The permit shall be renewed ifthe requirements are met according to the

schedule specified in the report. The executive director shall notify the permit holder in writing of the permit renewal . (2) If denial is based on failure to maintain substantial compliance with the TCAA or the terms ofthe existing permit under §116.311(c) of this title, the renewal denial shall be final . The executive director shall notify the permit holder in writing of the denial . (c) Contested case hearing. After failure to satisfy the commission requirements for corrective action by the deadline specified in the executive director's report, the applicant shall showcause in a contested case proceeding why the permit should not expire. The proceeding will be conducted under the APAand Chapters 1, 55, and 80 of this title (relating to Purpose of Rules, General Provisions; ,Request for Contested Case Hearings; Public Comment; and Contested Case Hearings) .

(d) Effective date of existing permit . An existing permit shall remain effective: 

### (1) until it is renewed; (2) until the deadline specified in the executive director's report to the permit holder ;(3) during the course of a contested case hearing if the hearing extends beyond the

expiration date; or



### (4) until a date specified in anycommission order entered following acontested case hearing.SUBCHAPTER F : STANDARDPERMITS §§116.610, 116.611, 116.614, 116.615, 116.617, 116.620, 116.621

STATUTORY AUTHORITY. The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and ofthe TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public 7rds and submission ofconfidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

152administration and enforcement of federal operating permits; issuance of federal operating permits and

appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial ofapplications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAAand other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which ^~ ~~ide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial review of commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997.

### §116.610. Applicability. (a) Under the TCAA, §382.051, a project which meets the requirements for a standard permit listed in this subchapter is hereby entitled to the standard permit, provided the following conditions listed in this section are met. For the purposes ofthis subchapter, project means the construction or modification of a facility or a group offacilities submitted under the same registration claim . (1) - (2) (No change.) (3) the proposed project must comply with the applicable provisions of the FCAA, § 111 (concerning New Source Performance Standards) as listed under Title 40Code of Federal Regulations (CFR) Part 60, promulgated by the EPA;

(4) the proposed project must comply with the applicable provisions of FCAA, § 112 (concerning Hazardous Air Pollutants) as listed under 40CFR 61, promulgated by the EPA;

(5) the proposed project must comply with the applicable maximum achievable control technology standards as listed under 40 CFRPart 63, promulgated by the EPAunder FCAA, §112or as listed under Chapter 113, Subchapter C ofthis title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR63)) .(6) the owner or operator of the facility shall register the proposed project in

accordance with § 116.611 of this title (relating to Registration Requirements) . (b) - (c) (No change.) (d) Any project involving a proposed affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with all applicable requirements under Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40 CFRPart 63)) . Affected sources subject to Subchapter C of this chapter may use a standard permit under this subchapter only ifthe terms and conditions of the specific standard permit meet the requirements of Subchapter C of this chapter. §116 .611 . Registration Requirements. (a) Registration for a standard permit shall be sent by certified mail, return receipt requested, or hand delivered to the commission's Office ofAir Quality, the appropriate commission regional office, and any local air pollution programwithjurisdiction, before a standard permit can be claimed. The registration must be submitted on a Form PI-1S and must document compliance with the requirements ofthis section, including, but not limited to:

(1) - (6) (No change.)



### 155(b) - (c) (No change.)



### §116.614. Standard Permit Fees. Any person who claims a standard permit shall remit, at the time ofregistration, a flat fee of $450 for each standard permit claimed. All standard permit fees will be remitted in the formof a check or money order made payable to the Texas Natural Resource Conservation Commission (TNRCC) and delivered with the permit registration to the TNRCC, P.O. Box 13088, MC214, Austin, Texas 78711-3088. No fees will be refunded. §116 .615. General Conditions. The following general .c - litions are applicable to holders of standard permits, but will not necessarily be specifically stated within the standard permit document.

(1) Protection of public health and welfare. The emissions fromthe facility must comply with all . applicable rules and regulations of the commission adopted under the Texas Health and Safety Code, Chapter 382, and with intent ofthe TCAA, including protection of health and property of the public. (2) (No change.)



### 156(3) Standard permit in lieu of permit amendment. All changes authorized by standard

permit to a facility previously permitted under § 116.110ofthis title (relating to Applicability) shall be administratively incorporated into that facility's permit at such time as the permit is amended or renewed. (4) - (7) (No change.)

(8) Recordkeeping. A copy of the standard permit along with information and data sufficient to demonstrate applicability of and compliance with the standard permit shall be maintained in a file at the plant site and made available at the request of representatives of the executive director, the EPA, or any air pollution control programhavingjurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit registration. This information must include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in the conditions of the standard permit. Information and data sufficient to demonstrate applicability of and compliance with the standard permit must be retained for at least two years following the date that the information or data is obtained. The copy of the standard permit must be maintained as a permanent record.

(9) Maintenance of emission control . The facilities covered by the standard permit may 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 

### 157and maintenance shall be made in accordance with §101 .6 and § 101 .7 of this title (relating to Upset

Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements) .

(10) Compliance with rules. Registration of a standard permit by a standard permit applicant constitutes an acknowledgment and agreement that the holder will comply with all rules, regulations, and orders ofthe commission issued in conformity with the TCAA and the conditions precedent to the claiming of the standard permit . If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern. Acceptance includes consent to the entrance of commission employees and designated representatives of any air pollution control programhavingjurisdiction into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the standard permit. . 

### §116.617. Standard Permits for Pollution Control Projects. This standard permit applies to the installation of emissions control equipment or implementation ofcontrol techniques as required by any governmental standard, or undertaken voluntarily, or to replace existing emission control equipment or control techniques. This standard permit also authorizes the substitution ofcompounds used in manufacturing processes for the purpose ofcomplying with governmental standards or to reduce emission effects.

158(1) - (4) (No change.) (5) Installation of the control equipment or implementation of the control technique must not result in an increase in the facility's production capacity unless the capacity increase occurs solely as a result ofthe installation ofcontrol equipment or the implementation of control techniques on existing units. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate resulting fromthe installation of control equipment or the implementation of a control technique. (A) The owner or operator shall obtain or qualify for any necessary authorization under §116. 110 of this title (relating to Applicability) or §116.116 ofthis title (relating to Changes to Facilities) prior to utilizing any production capacity increase froma pollution control project required by any governmental standard that: 

### (i) - (ii) (No change.) (B) Any production capacity increase resulting fromthe voluntary installation ofcontrols or the implementation of control techniques may not be utilized until the owner or operator obtains or qualifies for any necessary authorization under §116 . 110 or §116.116of this title. (6) - (7) (No change.)



### 159(8) If the project, without consideration of any other increases or decreases not related

to the project, will result in a significant net increase in emissions of any criteria pollutant, a person claiming this standard permit shall submit, with the registration, information sufficient to demonstrate that the increase will meet the conditions of subparagraph (A) of this paragraph. (A) - (B) (No change.) (C) Netting is not required when determining whether this demonstration must be made for the proposed project. The increases and decreases in emissions resulting fromthe project must be included in any future netting calculation if they are determined to be otherwise creditable under PSD and nonattainment new source review

provisions ofthe FCAA, Parts C and Dand regulations promulgated thereunder.

(9) For purposes of compliance with the PSD and nonattainment new source review provisions of the FCAA, Parts Cand D and regulations promulgated thereunder, any increase that is less than significant, or satisfies the requirements of paragraph (8) ofthis section does not constitute a physical change or a change in the method of operation. For purposes of compliance with the Standards of PerformaiRce for New Stationary Sources regulations promulgated by the EPA at 46CFR §60.14 (effective December 16, 1975), an increase that satisfies the requirements of paragraph (8) of this section also satisfies the requirements of 40 CFR §60.14(e)(5) .§116.620. Installation and/or Modification of Oil and Gas Facilities.

(a) Emission specifications. (1) - (3) (No change.) (4) New

or modified internal combustion reciprocating engines or gas turbines permitted under this standard permit shall satisfy all ofthe requirements of §106.512ofthis title (relating to Stationary Engines and Turbines (Previously SE 6)), except that registration using the Form PI-7 or PI-8 shall not be required. Emissions fromengines or turbines shall be limited to the amounts found in §106.4(a)(1) ofthis title (relating to Requirements for Exemption fromPermitting) .



### (5) - (12) (No change.) (13) Appropriate documentation shall be submitted to demonstrate that compliance with the Prevention of Significant Deterioration (PSD) and nonattainment newsource reviewprovisions ofthe FCAA, Parts C and D, and regulations promulgated thereunder, and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40 CFRPart 63)) are being met. The oil and gas facility shall be required to meet the requirements of Subchapter B of this chapter (relating to New Source Review Permits) instead of this subchapter ifa PSD or nonattainment permit or a reviewunder Subchapter Cof this chapter is required. 

### 161(14) Documentation shall be submitted to demonstrate compliance with applicable New

Source Performance Standards (NSPS, 40 CFRPart 60) .

(15) Documentation shall be submitted to demonstrate compliance with applicable National Emission Standards for Hazardous Air Pollution (NESHAP, 40CFRPart 61) .

(16) Documentation shall be submitted to demonstrate compliance with applicable maximumachievable control technology standards as listed under 40 CFRPart 63, promulgated by the EPA under FCAA, §112 or as listed in Chapter 113, Subchapter Cof this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR Part 63)) . (17) New and increased emissions shall not cause or ~ f `-ibute to a violation of any National Ambient Air Quality Standard or regulation property line standards as specified in Chapters 111, 112, and 113 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter; Control of Air Pollution fromSulfur Compounds; and Control of Air Pollution from Toxic Materials) . Engineeringjudgment and/or computerized air dispersion modeling may be used in this demonstration. To showcompliance with §116.610(a)(1) of this title (relating to Applicability) for HZS emissions fromprocess vents, ten milligrams per cubic meter shall be used as the "L" value instead of the value represented by §116.610(a)(1) of this title.(18) Fuel for all combustion units and flare pilots shall be sweet natural gas or liquid

petroleumgas, fuel gas containing no more than ten grains of total sulfur per 100 dry standard cubic feet (dscf), or field gas. If field gas contains more than 1 .5 grains of HZS or 30grains total sulfur compounds per 100dscf, the operator shall maintain records, including at least quarterly measurements offuel H,S and total sulfur content, which demonstrate that the annual SOZ emissions fromthe facility do not exceed the limitations listed in the standard permit reg:stration. If a flare is the only combustion unit on a property, the operator shall not be required to maintain such records on flare pilot gas. 

### (b) Control requirements. (1) Floating roofs or equivalent controls shall be required on all new or modified storage tanks, other than pressurized tanks which meet §106.476 ofthis title (relating to Pressurized Tanks or Tanks Vented to Control (Previously SE 83)), unless the tank is less than 25,000 gallons in nominal size or the vapor pressure of the compound to be stored in the tank is less than 0.5 pounds per square inch absolute (psia) at maximum short-termstorage temperature. (A) - (E) (No change.) (2) (No change.) (c) Inspection requirements.



### 163(1) Owners or operators who are subject to subsection (a)(7) or (8) of this section shall

comply with the following requirements. (A) No component shall be allowed to have a VOC leak for more than 15 days after the leak is detected to exceed a VOC concentration greater than 10,000parts per million by volume (ppmv) above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound for all components. The VOCfugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0.5 psia.at 100degrees Fahrenheit are exempt fromthis requirement. If VOC fugitive emission components are in service where the operating pressure is at least 0.725 pounds per square inch (psi) (five kilopascals (Kpa)) belowambient pressure, then these components are also exempt fromthis requirement as long as the equipment is identified in a list that is made available upon request by the agency representatives, the EPA, or any other air pollution agency 'lavingjurisdiction. All piping and valves two inches nominal size and smaller, unless subject to federal NSPS requiring a fugitive VOCemissions leak detection and repair programor Chapter 115 of this title (relating to Control of Air Pollution fromVolatile Organic Compounds), are also exempt fromthis requirement. (B) - (I) (No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator ofthe oil and gas facility may request in writing to the Office of Air Quality, New

Source Review

Permits Division that the monitoring schedule be revised based on the



### 164percent of valves leaking. The percent of valves leaking shall be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number ofvalves subject to the requirements. This request shall include all data that has been developed tojustify the following modifications in the monitoring schedule. (i) - (ii) (No change.) (2) Owners or operators who are subject to subsection (a)(9) or (10) of this section shall comply with the following requirements. (A) - (1) (No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality, New

Source ReviewPermits Division that the monitoring schedule be revised based on the percent ofvalves leaking. The percent ofvalves leaking shall be determined by dividing the sumof valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that have been developed to justify the following modifications in the monitoring schedule. (i) - (ii) (No change.)



### 165(K) (No change.) (3) (No change.) 

### (d) Approved test methods. (1) - (2) (No change.) (3) Proper operation of any condenser used as a VOCemissions control device to comply with subsection (a)(5) ofthis section shall be tested to demonstrate compliance with the minimum

control efficiency. Sampling shall occur within 60 days after start-up of new or modified facilities. The permittee shall contact the Engineering Services Section, Office of Compliance and Enforcement 45 days prior to sampling for approval of sampling protocol . The appropriate regional office in the region where the source is located shall also be contacted 45 days prior to sampling to provide themthe opportunity to viewthe sampling. Neither the regional office nor the Engineering Services Section, Office of Compliance and Enforcement personnel are required to viewthe testing. Sampling reports which comply with the provisions ofthe "TNRCC Sampling Procedures Manual," Chapter 14 ("Contents of Sampling Reports," dated January 1983 and revised July 1985), shall tie distributed to the appropriate regional office, any local programs, and the Engineering Services Section, Office of Compliance and Enforcement .(e) Monitoring and recordkeeping requirements. (1) If the operator elects to install and maintain ambient HZS property line monitors to comply with subsection (a)(11) ofthis section, the monitors shall be approved by the Engineering Services Section, Office of Compliance and Enforcement office in Austin, and shall be capable of detecting and alarming at HZS concentrations of ten ppmv. Operations personnel shall performan initial on-site inspection of the facility within 24 hours of initial alarmand take corrective actions as listed in subsection (c)(3)(A)-(C) ofthis section within eight hours of detection of a leak.

(2) The results of the VOC leak detection and repair requirements shall be made available to the executive director or any air pollution control agency havingjurisdiction upon request. Records, for all components, shall include: (A) - (E) (No change.) (3) - (8) (No change.) §116 .621 . Municipal Solid Waste Landfills. Aperson may claima standard permit for the construction or modification to a municipal solid waste landfill (MSWLF) or municipal solid waste facility (MSW facility) as defined in § 101 .1 ofthis title (relating to Definitions), including, but not limited to, Type 1, Type 1-AE, Type II, Type III, Type 

### 167IV, Type IV-AE, Type VI, and Type IXsites as defined in §330.41 of this title (relating to Types of

Municipal Solid Waste Sites) .

(1) (No change.) (2) Separate permit authorization under Subchapter B of this chapter (relating to New Source ReviewPermits) must be obtained for the following: (A) - (E) (No change.) (F) any project which constitutes a newmajor source, or major modification under the new

source reviewrequirements ofthe FCAA, Part C (Prevention of Significant Deterioration review), Part D (nonattainment review) and regulations promulgated thereunder, or is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g) 40 CFRPart 63)) shall be subject to the requirements of §116.110of this title (relating to Applicability) rather than this subchapter .

(3) (No change.) (4) The permit holder shall comply with the air emissions standards as specified in 40 CFRPart 60, Subpart WWW, with the following additions and changes. 

### 168(A) (No change.) (B) The GCCS shall be designed to control nonmethane organic compounds (NMOC) gas emissions in one or more of the following ways by routing the total collected gas to: (i) an open flare with a minimum height of 30 feet and which satisfies all of the requirements of Chapter 106, Subchapter Aofthis title (relating to General Requirements) and §106.492 of this title (relating to Flares (Previously SE 80)), except that registration using Form PI-7 or PI-8 shall not be required; 

### (ii) - (iii) (No change.)

` gas or liquid fuel-fired stationary internal combustion reciprocating engines or gas turbines that satisfy all ofthe requirements ofChapter 106, Subchapter A ofthis title and §106.512of this title (relating to Stationary Engines and Turbines (Previously SE 6)), except that registration using FormPI-7 or PI-8 shall not be required; or

, (v) boilers, heaters, or other combustion units, but not including stationary internal combustion engines or turbines, that satisfy all ofthe requirements of Chapter 106, Subchapter Aof this title and §106.183 ofthis title (relating to Boilers, Heaters, or Other Combustion Devices (Previously SE 7)) .



### 169(C) The active GCCS may be capped or removed only if, in addition to the

requirements listed in 40 CFR, §60.752(b)(2)(v), the MSWLF is permanently closed under §§330.250-330.256 ofthis title (relating to Closure and Post-closure) .

(5) (No change.) (6) High volume air sampling for net ground level concentrations of total particulate matter shall be performed upon request ofthe executive director or a designated representative. Each test shall consist ofat least one upwind and one downwind sample taken simultaneously. The tests shall be performed during normal operations. Amonitoring plan for high volume sampling shall be developed in accordance with the Office of Air Quality Management Plan, Appendix I (EPA Requirements for Quality Assurance Project Plans, dated February 1995) and the "TNRCC Sampling Procedures Manual," Chapter 11 (dated January 1983 and revised July 1985), and shall require approval by the executive director or a designated representative prior to sampling. The executive director or a designated representative shall be afforded the opportunity to observe all such sampling equipment, operations, and records upon request.

(7) GCCS components (compressor seals, pipeline valves, pressure relief valves in gaseous service, flanges, and pump seals) at an MSWLF or MSW facility, where the total of all estimated uncontrolled fugitive emissions fromall components is greater than ten tons per year, shall be inspected and maintained under the requirements of §116.620(c)(1)(A)-(J) ofthis title (relating to Installation and/or Modification of Oil and Gas Facilities), with the following changes and additions. 170(A) - (E) (No change.) (8) The owner or operator of each MSWLF unit shall maintain complete and up-to-date records sufficient to readily determine continuous compliance with the requirements of this section for the previous five years of operation. All the records shall be maintained in an operating record in accordance with §330.113(b)(11) of this title (relating to Recordkeeping Requirements) . The records shall be available for reviewupon request by representatives of the commission or any local air pollution agency havingjurisdiction. The following recordkeeping requirements shall apply, in addition to those specified in 40 CFR60, Subpart WWW . (A) Permit holders who are subject to the exemptions ofChapter 106 ofthis title (relating to Exemptions fromPermitting), as specified in paragraph (4) of this section shall maintain any records specified in the exerr^` ;on.



### (B) (No change.)SUBCHAPTER G: FLEXIBLE PERMITS §§ 116.710, 116.711, 116.714, 116.715, 116.721, 116.730, 116.740, 116.750

STATUTORY AUTHORITY. The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy ofthe State ofTexas and ofthe TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA ; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030-382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate new

source reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness ofapplications; and to require persons to obtain permits for construction of new facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for

172administration and enforcement of federal operating permits; issuance offederal operating permits and

appeal ofdelays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance, has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAAand other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of bP~-ings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides forjudicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. '§116.710. Applicability. (a) Flexible permit. Aperson 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 § 116.110ofthis title (relating to Applicability), or in lieu of amending an existing permit under §116.116 of this title (relating to Amendments and Alterations) . A person may obtain a flexible permit under § 116.711 ofthis title (relating to Flexible Permit Application) for a facility, group of facilities, or account before any actual work is begun, provided however:

(1) - (4) (No change.) (b) 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 newowner and existing permit holder must obtain a permit alteration allocating the emission caps or individual emission limitation prior to the transfer ofthe permit by the commission. 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 commission. (c) Submittal under seal ofTexas licensed professional engineer. All applications for a flexible permit or flexible permit amendment shall comply with § 116.110 (e) ofthis title. 

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

or account or the operator of the facility, group offacilities, or account who is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b) of this section. 

### §116.711. Flexible Permit Application. Any application for a new flexible permit or flexible permit amendment must include a completed FormPI-1 General Application. The FormPI-1 must be signed by an authorized representative of the applicant. The FormPI-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 commission which demonstrates that all of the following are met.

(1) Protection of public health and welfare. The emissions fromthe proposed facility, group of facilities, or account as determined under §116.716 ofthis title (relating to Emission Caps and Individual Emission Limitations), will comply with all rules and regulations of the commission and with the intent ofthe TCAA, including protection ofthe 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 commission shall consider any possible adverse short-termor long-termside effects that an



### 175air contaminant or nuisance odor fromthe 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 measuring the emission ofair contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual ."



### (3) Best available control technology (BACT) . The proposed facility, groupof facilities, or account will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions fromthe facility on a proposed facility, group offacilities, 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 ofcontrol may not be lessened for any facility. For new facilities and proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §I12(g), 40CFR Part 63)), the use of BACT shall be demonstrated for the individual facility or affected source.

(4) New

Source Performance Standards (NSPS) . The emissions fromeach affected facility as defined in 40 Code of Federal Regulations (CFR), Part 60will meet at least the requirements

176of any applicable NSPS as listed under Title 40 CFRPart 60, promulgated by the EPA under authority

granted under the FCAA, §111, as amended.

(5) National Emission Standards for Hazardous Air Pollutants (NESHAPS) . The emissions fromeach facility as defined in 40 CFR Part 61 will meet at least the requirements of any applicable NESHAPS, as listed under 40CFR Part 61, promulgated by EPA under authority granted under the FCAA, § 112, as amended.

(6) NESHAPS for source categories. The emissions fromeach affected facility shall meet at least the requirements of any applicable MACT standard as listed under 40 CFR Part 63, promulgated by the EPAunder FCAA, § 112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA § 112, 40 CFR 63)) .

(7) Performance demonstration. The 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 offacilities, 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.



### 177(8) 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 reviewin Subchapter B of this chapter (relating to New Source ReviewPermits) .

(9) Prevention of Significant Deterioration (PSD) review . Ifthe 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 ofthis chapter .

(10) Air dispersion modeling or ambient monitoring. Computerized air dispersion modeling and/or ambient monitoring may be required by the commission's New Source Review Permits Division to determine the air quality impacts fromthe facility, group offacilities, or account.

(11) Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the proposed source is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)), it shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) . '

(12) Application content. In addition to any other requirements ofthis chapter, the applicant shall :

178(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; (D) for each emission cap, identify all associated EPNs and provide emission rate calculations based on the expected maximum capacity and the proposed control technology; (E) for each individual emission limitation, identify the EPN and provide emission rate calculations based on the expected maximum capacity and the proposed control technology. (13) 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 maximumproduction capacity. 

### §116.714. Application ReviewSchedule. The flexible permit application will be reviewed by the commission in accordance with §116.114 of this title (relating to Application Review Schedule) . 

### 179§116.715. 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 § 116.150 and § 116.151 and §§ 116.160-116.163 of this title (relating to Nonattainment Review or Prevention of Significant Deterioration Review) or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63)), the permit may include a special condition which requires the permittee to obtain written approval fromthe executive director before constructing a facility under a standard permit or an exemption under Chapter 106 of this title (relating to Exemptions from Permitting) . 

### (b) (Nochange.) (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 ifthe holder fails to complete construction as specified in the flexible permit. Upon request, the executive director may grant a one time 12-month extension ofthe date to

180complete construction. This section does not apply to physical or operational changes allowed without

an amendment under § 116.721 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 commission not later than 15 working days after occurrence of the event .

(3) Start-up notification. The appropriate regional office of the commission and any local programhavingjurisdiction shall be notified prior to the commencement ofoperations of the facilities authorized by the permit in such a manner that a representative of the commission 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 commission's Engineering Services Section, Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the executive director and coordinated with the appropriate regional office ofthe commission. The flexible permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.



### 181(5) Equivalency of methods. It shall be the responsibility of the flexible permit holder

to demonstrate or otherwisejustify 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 permit . (6) Recordkeeping. Acopy 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 a,,ailable at the request of personnel fromthe commission or any air pollution control programhaving 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) - (8) (No change.)(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 §101 .6and §101 .7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements) .

(10) Compliance with rules. Acceptance of a flexible permit by a permit applicant constitutes an acknowledgment and agreement that the holder will comply with all Rules, Regulations, and Orders of the commission issued in conformity with the TCAAand 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 . (d) (No change.)§116.721 . 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 fromsuch representation or flexible permit provision ifthe change will cause a change in the method of control ofemissions, the character ofthe 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 FormPI-1 and are subject to the requirements of §116.711 of this title (relating to Flexible Permit Application) . (b) Flexible permit alterations . (1) (No change.) (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 receivd prior approval by the executive director. The executive director shall be notified in writing of all other flexible permit alterations within ten 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

184previous demonstrations of compliance with the requirements of §116.711 ofthis title, including the

protection of public health and welfare. The appropriate commission regional office and any local air pollution programhavingjurisdiction shall be provided copies of all flexible permit alteration documents. (3) (No change.) (c) (No change.) (d) Exemption under Chapter 106 ofthis title (relating to Exemptions fromPermitting) 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 Chapter 106 of this title unless prohibited by permit provision as provided in § 116.715 ofthis 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 Chapter 106 ofthis title at an existing facility covered by a flexible permit shall not cause an exceedance of the emissions cap or individual emission limitation.



### 185§116.730. Compliance History. As part of a flexible permit review, or the reviewof an amendment of a flexible permit, or renewal of an existing flexible permit, the provisions found in §§116.120-116.126 of this title (relating to Compliance History) shall be applicable to the facility, group of facilities, or account being permitted, amended, or renewed. 

### §116.740. Public Notice and Comment. (a) Any person who applies for a flexible permit or an amendment to a flexible permit shall comply with the provisions in §§116.130-116.134, 116.136, 116.137 of this title (relating to Public Notification and Comment Procedures) . (b) Any person who applies for an amendment to a flexible permit regarding an affected source (as defined in §116.15(1) ofthis title (relating to Section 112(g) Definitions)) subject to Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40 CFRPart 63)) shall comply with the provisions in §§116.130-116.134, 116.136, and 116.137 ofthis title.§116.750. Flexible Permit Fee.

(a) (No change.) (b) Fee amounts. The fee to be remitted with a flexible permit application shall be based on the total annual allowable emissions fromthe 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 maximumfee $75,000. For flexible permit amendments, the fee shall be calculated based on $25 per ton for the incremental emission increase with the minimum fee being $450 and the maximumfee being $75,000. (c) Payment of fees. All permit fees for a flexible permit shall be remitted in the formof a check or money order made payable to the Texas Natural Resource Conservation Commission and delivered with the application for flexible permit or flexible permit amendment to the commission's New Source ReviewPermits Division. 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 oi flexible permit amendment is submitted. Ifthe 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 an exemption under Chapter 106 ofthis title (relating to Exemptions fromPermitting) is allowed. No fees will be refunded after a deficient 

### 187application has been voided, denied, or after a flexible permit or flexible permit amendment has been

issued by the agency.THE STATE OF TEXAS COUNTY OF TRAVIS I hereby ce~Ify that this is a true and correct TEXAS NATURAL RESOURCE CONSER~`Y(~ T~~~I~urce Conservation - otnmission document which Is filed in the

. permanent records of the Commisaftjn. Qivipunder my ha1~d and the seai of office oa E ugenIa`K. Hnimm, Chef C] erk Texas-Natural Resource Consc°,rvatiurn Commission 

# 1998

AN ORDER adopting a revision to the State Implementation Plan

concerning amendments~to 30TAC Chapter 116; Docket No. 98-0068-RUL. - WHEREAS, onJune 17, 1998, the Texas Natural Resource Conservation Commission (Commission) considered a revision to the State Implementation Plan (SIP) . The amendments to Subchapters A- D, F, and G, concerning Control of Air Pollution by Permits for New Constructio:~, or Modification, implement the requirements ofthe Federal Clean Air Act, § 112(g), 40 Code of Federal Regulations Part 63, concerning Hazardous Air Pollutants, and make general corrections and clarifications to Chapter 116; and WHEREAS, pursuant to the Texas Health and Safety Code Annotated, §382.017 (Vernon's 1992) ; Texas Government Code Annotated, Subchapter B, Chapter 2001 (Vernon's 1993) ; and 40 Code of Federal Regulations, §51 .102, the Commission staff, after proper notice, conducted a public hearing on April 16, 1998, to consider a proposed revision to the SIP; and WHEREAS, the Commission duly circulated to interested persons, the Regional Administrator of the U. S. Environmental Protection Agency (EPA), and all applicable localair pollution control agencies, hearing notices of its intended action; and WHEREAS, interested persons were invited to submit data, views, and recommendations on the proposed revisions, either orally or in writing, at the hearing; and WHEREAS, copies ofthe proposed amendments were available for public inspection at the Commission's central office and regional offices prior to the scheduled hearing; and WHEREAS, data, views, and recommendations of interested persons were submitted to the Commission staff at the hearing and were considered by the Commission staffas reflected in the attached analysis of testimony; and WHEREAS, the Commission finds that said analysis of testimony includes.the..names of all interested groups or associations offering comment on the amendments andtheir position concerning the proposed amendments; and WHEREAS, the Texas Health and Safety Code Annotated, §382.017, gives the Commission authority to make rules and regulations consistent with the policies and purposes ofthe Texas Clean Air Act; and 'WHEREAS, the Commission finds that the reasonedjustification and factual bases for the proposed amendments are fully set out in the analysis oftestimony; and

### Chapter 116 . Control of Air Pollution by Permits for New Construction or Modification The Texas Natural Resource Conservation Commission (commission) adopts the repeal of §§116 .10, 116.11, 116

.13, 116.14, 116.110-116.112, 116.114-116.118, 116.120-116.126, and 116

.310-116.314 and new §§116.10, 116.11, 116.13- 116.15, 116

.110-116.112, 116.114-116.118, 116.120-116.126, 116.180-116.183, and 116.310-116.314, concerning Control of Air Pollution by Permits for NewConstruction or Modification. The commission also adopts amendments to §§116 .130- 116.134, 116.136, 116.137, 116.140, 116.141, 116.143, 116.160, 116.161, 116.170, 116.174, 116.610, 116.611, 116 .614, 116.615, 116.617, 116.620, 116.621, 116.710, 116 .711, 116.714, 116.715, 116.721, 116.730, 116.740, and 116 .750, concerning Control of Air Pollution by Permits for New Construction or Modification. Sections 116.14, 116.15, 116.110, 116.111, 116.115-116.117, 116 .121, 116.122, 116.133, 116.137, 116.141, 116.180, 116.182, 116.183, 116.311, 116.312, 116.610, 116.620, 116 .621, 116.711, and 116.740 are adopted with changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2953) . Sections 116 .10, 116 .11, 116.13, 116.112, 116.114, 116.118, 116.120, 116 .123- 116 .126, 116.130-116.132, 116.134, 116.136, 116.140, 116 .143, 116.160, 116.161, 116.170, 116.174, 116.181, 116 .310, 116.313, 116.314, 116.611, 116.614, 116.615, 116 .617, 116.710, 116.714, 116.715, 116.721, 116.730, and 116 .750 and the repeals are adopted without changes and will not be republished. The commission adopts the reviewof the rules contained in 30 TACChapter 116, concerning Control ofAir Pollutionby Permits for New Construction or Modification. This reviewwas adopted inaccordance with Article IX, §167, General AppropriationsAct, 75th Legislature, 1997. EXPLANATION OF ADOPTEDRULES. The commission adopts a new §116.15 and a newSubchapter C, §§116.180-116.183, for the purpose of implementing a program to meet the requirements of Title III of the 1990 Federal Clean Air Act (FCAA) concerning Hazardous Air Pollutants, §112(g), Modifications, as set forth in 40 Code of Federal Regulations (CFR) Part 63, §§63.40- 63 .44, as amended December 27, 1996, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) . Section 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of a case-bycase maximumachievable control technology (MACT) if a major source of hazardous air pollutants (HAPs) is constructed or reconstructed before the United States Environmental Protection Agency (EPA) issues a MACT standard or air toxics regulation for that particular category of sources or facilities. Changes were made throughout the rules as the result of ongoing efforts by the commission for regulatory reform . These changes are for purposes of simplification and clarification only and do not involve substantive changes in the requirements of this chapter. In order to simplify the regulatory reform effort, the commission proposed the repeal of §§116.10, 116.11, 116.13, 116 .14, 116

.110-116.112, 116

.114-116.118, 116.120-116.126, and 116.310-116.314 (these sections are being adopted by the commission with the changes made under regulatory reform and in response to comments) . By repealing these sections, the commission was able to revise the language without having to make extensive use of the editing requirements of the TexasRegister . Changes proposed in the Texas Register must be shown by using underlining and bracketing. The commission was concernedthat significant revisions to the rules would be difficult for the regulated community and the public to read and comment on if the underlining and bracketing editing marks were used. In general, these changes involve using shorter sentences, limiting each citation to one main concept, reordering requirements into a more logical sequence, and using more commonplace terminology. Several suggestions of alternative language fromthat proposed by the commission were received. This preamble will discuss any changes to the rule language in the appropriate sections of the preamble. Although sections of Subchapter F, concerning Standard Permits, and Subchapter G, concerning Flexible Permits, were revised, these subchapters were not included in this extensive regulatory reformeffort. In addition, not all of Subchapter Bwas included. These subchapters and remaining sections will be reviewed at a later date for purposes of regulatory reform . The division related to nonattainment permitting and Subchapter E related to emergency orders have not been included in this rulemaking, since they are expected to be revised in subsequent rulemakings that are on a different schedule. Those sections will be reviewed for regulatory reformpurposes at that time. The following paragraphs describe the adopted amendments to Chapter 116by subchapter. SUBCHAPTERA

: DEFINITIONS

. Section 116.10, General Definitions, §116

.11, Compliance History Definitions, §116 .13, Flexible Permit Definitions, and §116.14, Standard Permit Definitions, were included in the regulatory reformreview . These sections contain definitions that are used throughout Chapter 116 and in specific subchapters of Chapter 116. The commission is readopting the definitions because they are necessary for the implementation of the requirements of Chapter 116. The definitions provide information that assists the regulated community and the public in fully understanding the requirements of the subchapters to which they are related. The commission amended Subchapter A by deleting those definitions that are identical or essentially the same as those in 30 TAC Chapter 101, concerning General Rules. As a result, in Chapter 116, the definitions of "de minimis impact" and "emissions unit" were deleted to eliminate redundancy. In addition, the commission adopted amendments to the definitions that reference exemptions frompermitting by referring to 30 TAC Chapter 106, concerning Exemptions fromPermitting. These references were proposed in response to the recent revision to Chapter 116 that moved exemptions to Chapter 106 . Correct references to the newexemption chapter, or specific sections within that chapter, have been made throughout the rules. The definition of "federally enforceable" is revised to include the requirements of 30TACChapter 113, Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR Part 63) . These standards (commonly referred to as MACTS) are incorporated by reference into Chapter 113, Subchapter C and this reference is being included simply to direct the reader to the correct chapter of the commission's rules. 

### ADOPTEDRULES July 3, 1998 23 TexReg 6973The definition of "lead smelting plant" is revised to correct an

internal conflict. The former definition stated that processing may include "oxidizing into lead oxide." This conflicts with the last sentence of the definition, which says that a facility that remelts lead bars or ingots is not a lead smelting plant. The conflict arises because lead oxide is only made by melting lead ingots. Finally, the commission adopted new§116 .15, concerning Section 112(g) Definitions. The definitionscontained in §116.15 will be used in conjunction with Subchapter C, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFRPart 63) . The definitions in §116.15 are essentially the same as those contained in 40 CFR 63, §63.41, concerning Definitions under Subpart B, Requirementsfor Control Technology (see 61 FR 68399) . SUBCHAPTER B: NEW SOURCE REVIEWPERMITS. The sections in Subchapter B, NewSource Review Permits, Division 1 : Permit Application (§116.110, Applicability, §116 .111, General Application, §116.112, Distance Limitations, §116 .114, Application ReviewSchedule, §116 .115, General and Special Conditions, §116.116, Changes to Facilities, §116.117, Documentation and Notification of Changes to Qualified Facilities, and §116.118, Pre-change Qualification), were included in the regulatory reform changes. The commission is readopting these sections because they are necessary in order to implement the newsource reviewpermitting requirements of the Texas Clean Air Act (TCAA) . In general, these rules describe what a person must do in order to construct a newfacility or modify an existing facility. The application and distance limitation sections contain the requirements that must be addressed in applications and provide guidance for howapplications will be reviewed by the executive director. The executive director is authorized to include general and special conditions in all permits and the rule contains general conditions that apply to all holders of permits, special permits, standard permits, and special exemptions. The sections in Subchapter B, NewSource ReviewPermits, Division 2: Compliance History, (§116.120, Applicability, §116.121, Exemptions, §116.122, Contents of Compliance History, §116.123, Effective Dates, §116.124, Public Notice of Compliance History, §116.125, Preservation of Existing Rights and Procedures, and §116.126, Voidance of Permit Applications), were included in the regulatory reformchanges. The commission is readopting these provisions since they are necessary to implement the TCAA requirements in §382.0518(c) when reviewing applications for initial permit issuance, amendment, or renewal . The sections describe when such a reviewwill be required as well as provide direction for how that reviewwill be conducted and what must be included in the review

. The commission adopted amendments to §116.110, concerning Applicability, to reference standard permits that currently exist in 30 TAC Chapter 321, Subchapter K, concerning Confined Animal Feeding Operations, 30 TAC Chapter 332, concerning Composting; and 30 TAC Chapter 330, Subchapter N, concerning Landfill Mining. This amendment provides clarification regarding all the standard permits (for air emissions) that are currently available. The operations certification requirements contained in the existing §116

.110(b) have been deleted as a result of recommendations made by the commission's regional offices and the Office of Compliance and Enforcement . The operations certification requirement created unnecessary reporting and paperwork and can be implemented more effectively through new source review (NSR) permits on a case-by-case basis. The operations certifications were created for the purpose of implementing Texas Health and Safety Code, §382.0518(f), which gives the commission the authority to require a demonstration fromowners and operators that a facility as constructed complies with the terms of the preconstruction permit and that the operation of the facility will not violate any rules or regulations of the commission. The statutory language allows the commission flexibility to determine the time and manner of such demonstration. The rule change does away with the requirement to submit the two forms to the agency which have been found to be unnecessary in practice. The permit holder would not be relieved from the underlying requirements that are the subject of the forms (to have constructed in compliance with their preconstruction permits and to operate in compliance with commission rules and regulations.) These requirements are established by rule in §1 16.115(b)(2)(1) . The new§116.110(c), concerning Exclusion, makes it clear that affected sources (as defined in §116.15(1), concerning Section 112(g) Definitions) that are subject to Subchapter C are not authorized to use an exemption under Chapter 106, or an authorization under §116.116(e), concerning changes to qualified facilities. Affected sources subject to Subchapter C can use standard permits under Subchapter F of this chapter if the terms and conditions of the standard permit meet the criteria of Subchapter C

. As currently written, none of the existing standard permits meet the criteria of Subchapter C (e.g., there is no requirement for public notice) . These changes were made to ensure that applicants obtain the appropriate authorization under Subchapter C and are described in more detail in the section of the preamble addressing Subchapter C . A new §116.110(d), concerning change in ownership (formerly §116.110(c)) is adopted. This subsection was revised to specify that new

owners must submit information regarding the date of the change in ownership, the name of the new owner, a contact person for the new

owner, and the address and phone number of the newowner. The commission adopts a new §116.110(e) to reflect the recent revisions to the Texas Engineering Practice Act (TEPA) which nowrefers to "licensed" engineers instead of "registered" engineers. Thecorrect nameof the Texas Board of Professional Engineers is included. The rule is revised to make clear that for projects with a capital cost above $2 million, the project must be submitted under the seal of a Texas licensed professional engineer. Section 116.111(2)(E), concerning national emissions standards for hazardous air pollutants for source categories (commonly referred to as MACTs), is revised to reference the requirements of Chapter 113, Subchapter C . The proposed language is modified by the commission to clarify that permit applications must demonstrate compliance with all applicable MACTs. The language, as proposed, may be interpreted as saying that applicants would not have to show compliance with all MACTs, regardless of whether or not the MACTs are listed in Chapter 113, Subchapter C . The proposed language was also in §116.311(a)(4), concerning Permit Renewal Application, §116.610(a)(5), concerning Applicability (for standard permits), §116.620(a)(16), concerning Installation and/or Modification of 

### 23TexReg 6974 July 3, 1998 Texas RegisterOil and Gas Facilities, and §116.711, concerning Flexible Permit Application. This correction has been made in all of these sections. Changes areadoptedto implement FCAA, §112(g) and40CFR Part 63, Subpart B, requirements in §116 .111(2)(K), concerning general application, to ensure that applicants submit information in permit applications that demonstrates that the requirements of Subchapter Care met. Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, §361 .102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply . The former §116

.112(b)(4) contained a typographical error that would have allowed the construction of any new commercial hazardous waste management facility or units of a facility to be located within 2,640feet of any specified off-site receptor. The statutory provision prohibits the construction of a newcommercial hazardous waste management facility that would be within 2,640 feet of any specified off-site receptor. Section 116

.115(c), concerning special conditions, is revised to include a reference to the newrequirements in Subchapter C . This change allows the executive director to include a special condition in permits requiring permit holders to obtain prior written approval before constructing a facility using a standard permit under Subchapter F or an exemption under Chapter 106, if the change would cause the facility to become subject toSubchapter C . During the administrative and technical review, the executive director may determine that the proposed change will trigger one or more of the prohibitions listed under §116.115(B)(i) and (ii) and the request for authorization under Subchapter F or Chapter 106 will be denied. Section 116

.116(b)(3) is added to require permit amendments that concern a change subject to Subchapter C to comply with the provisions for public notice and comment under Subchapter Bof this chapter. This change was made because 40CFR Part 63, §63.43(c)(2)(ii), requires case-by-case MACT determinations to be subjectto public notice. Subsection (f) was added to §116.116 to authorize the use of discrete emission reduction credits (DERCs) to exceed permit allowables under certain conditions. The commission recently adopted a revised emissions banking and trading rule (22 TexReg 12517) to allow a source to meet emission control requirements by purchasing and using credits generated by another source which has reduced its emissions below the level required by rule or permit . The revised banking rule allows for the use of DERCs to exceed permitted allowable emission levels by a certain amount once within any 24-month period. In ozone nonattainment areas, this exceedance must be 25 tons or less of nitrogen oxides or five tons or less of volatile organic compounds. In other areas, the amount may not exceed the prevention of significant deterioration significance levels as provided in 40 CFR §52.21(b)(23) . In addition to other requirements, these uses must be approved by the executive director and may not cause or contribute to a condition of air pollution. The adopted language of §116.116(f) allows the use of credits to authorize certain exceedances of permit allowables, and is consistent with existing authorization in Chapter 101 . Section 116.117(a)(4), concerning Documentation and Notification of Changes to Qualified Facilities, is revised to require persons making changes to qualified facilities under §116.116(e) to maintain documentation which demonstrates that the project will comply with Subchapter C . A minor amendment was made to §116.118that added theword "or" in §116.118(a)(1) . This was done to correct a previous typographical error. The commission amended §116.130(a), concerning applicability of public notification and comment procedures, by adding a reference to permit renewals. Applications for permit renewals are already required to go through public notice. This change merely includes a reference to renewals in this section. Subsection (a) was revised to more closely track TCAA, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review ; Hearing, by including the phrase "or to be located." This revision does not change the current requirement to publish notice in a newspaper of general circulation in the municipality where the facility is located, or to be located. Section 116 .130 was also revised by adding a newsubsection (c) that requires applications subject to reviewunder Subchapter Cto go through public notice. All applications subject to the requirements of FCAA, §112(g) and 40 CFR Part 63, Subpart B, whether initial applications or amendments toexisting case-by-case MACTdeterminations, must go through the public notice process. This is because 40 CFR Part 63, Subpart B, §63 .43(c)(2)(ii), requires that all such determinations be subject to public notice. To assist in the implementation of the commission's directive to facilitate and improve the public notice process, the phone number of the appropriate commission office to contact for further information will now be included as a part of the public notice required in §116 .132(a)(11) and §116.133(a)(6) rather than the phone number of the appropriate commission regional office. Section 116

.136(a) was revised tocorrectly refer tothe requirement that the executive director make a preliminary determination to issue or deny a permit subjectto the FCAA, Title I, Parts Cor Dor to 40CFR§51 .165(b) or the availability of the preliminary analysis that is required for other permitting actions. This change makes §116.136(a) consistent with the requirements of §116.132(a)(6) and (7), concerning public notice format. The commission amended§116.140, concerningApplicability of Permit Fees, by deleting the reference to operating permits and standard exemptions, because these typesof authorizations are no longer included in Chapter 116 . The reference to operating permits was deleted because the commission no longer issues state operating permits apart froma state construction permit. This should not be confused with federal operating permits issued under 30 TAC Chapter 122, concerning Federal Operating Permits. Exemptions frompermitting are now contained in Chapter 106

. Section 116.141(b)(1) was amended to specify that any application for new

or modified facilities controlled by the federal government will be charged a fee of $450 . The former provision qualified the fee requirement for federal government applications submitted after January 1987 . Since all of the pre-1987 applications fromthe federal government have been acted on by the commission, this provision is no longer necessary . Section 116.141(c)(1)(A) is revised to address an interpretation problem with the current rule. As it was written, the rule confused some applicants and staff concerning the computation of direct costs for facilities that are no longer permitted (e.g., 

### ADOPTEDRULES July 3, 1998 23TexReg 6975the permit expired and was not renewed) . Ahistorical review

of this section indicated that the original fee language was added priorto any requirements for renewal (and expiration) of permits. The confusion centered on whether "permitted" meant currently permitted or ever permitted regardless of current status. With two possible interpretations, neither has been consistently applied and the adopted language rectifies this situation. The commission does notbelievethat it is appropriate to allowthe direct costs of process and control equipment of a facility to be excluded if the facility once had a permit but no longer does. Allowing this exclusion would promote the argument that higher renewal fees could be avoided in favor of a minimumnew

permit fee. It is not expected that this change will result in significantly higher fees and it will ensure that all applications are reviewed consistently for fee determinations. The commission amended §116 .143 by correcting the commission mailing address where permit fees are submitted. The previous mailing address was a street address rather than a post office box. SUBCHAPTER C

: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, §112(g), 40 CFR Part 63) . The newSubchapter C is intended to meet the requirements of Title III of the 1990 FCAA concerning Hazardous Air Pollutants (HAPs), §112(g), Modifications, as set forth in 40 CFR 63, §§63 .40-63.44, as amended December 27, 1996 . Section 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of case-by-case MACT if a major source is constructed or reconstructed before EPA issues a MACT standard or air toxics regulation for that particular category of sources or facilities. 40 CFR Part 63, Subpart B, requires the commission to make case-by-case MACTdeterminations for affectedsources (as defined in §116.15(1), concerning Section 112(g) Definitions) that become subject to §112(g) prior to the EPA promulgating a MACT that would apply to the affected source. 40 CFR 63, §63.42, allows states to rely on existing NSR permitting programs to implement the requirements of §112(g) if the NSR programmeets the requirements of that subpart. The commission believes that the adopted revisions to Chapter 116 concerning §112(g) will successfully implement the requirements of §112(g) and 40 CFRPart 63, Subpart B . 40 CFR Part 63, §63.40(b), Overall Requirements, says in part that the "requirements of §§63 .40through 63.44 of this subpart apply to any owner or operator who constructs or reconstructs a major source of hazardous air pollutants after the effective date of the section 112(g)(2)(B) (as defined in §63.41) and the effective date of a title V permit programin the State. . .." The commission interpreted §63.40(b) as containing a two-part test regarding the effective date of 40 CFR Part 63, Subpart B: the §112(g) program would not be effective in a state until June 29, 1998, passed and a state had an approved federal operating permit program

. At the time the revisions to Chapter 116 were proposed, the commission understood that the interimapproval for the source category limited program was no longer considered to be effective by the EPA (that programwas approved on June 25, 1996 (61 FR 32693) . The EPA had informed the commission that due to the extensive revisions to Chapter 122 in November 1997, it no longer considered the operating permit programto be approved in Texas. Thus, since §63.40(b) has a two-part test, the commission believed that the §112(g) programwould not be effective in Texas until June 29, 1998, passed and the EPA approved the November 1997 revisions to Chapter 122 . Based on comments submitted by the EPA in response to the proposed rules, and in discussions with EPA Region VI staff, the commission nowunderstands that EPA has reconsidered itsposition concerning the source category limited programand nowconsiders it to be the approved federal operating permit program forthe state. The EPAbelieves that oncea state has an approved program(whether it isfull, interim, or sourcecategory limited), thenthat is the approval that triggers the effective date for §112(g) . Thus, regardless of whether a source is subject to either the full or interimprogram, once the interimprogram was approved in June 1996, that is the approval date that is used to trigger the effective date provisions of §63.40(b) . The commission has revised §116.180(b) and §116 .182 to make it clear that the §112(g) program will be effective for all affected sources in Texas on or after June 29, 1998. Thereafter, if a source makes a change subject to Subchapter C, it must apply to the commission for a case-by-case MACT determination under §116.182, concerning Application, regardless of whether the source is subject to the interim or full operating permit program . Administratively complete applications that are submitted prior to June 29, 1998, will not be subject to the requirements of Subchapter C

. Section 116.180(a)(1)(B)(vi) was revised to include a reference to "affected source" and to correct a typographical error that referred to the "executive director" twice in one sentence. All case-by-case MACT determinations aresubjectto the public notice requirements of Subchapter B . Thus, affected sources will not be able to use a Chapter 106 exemption or an existing Subchapter F standard permit. Currently, none of the existing standard permits meet the requirements of Subchapter C . Futurestandard permits may bedevelopedthat meet the criteria of Subchapter C

. Affected sources will not be able to use §116.116(e), concerning changes to qualified facilities, because §63.43(d)(1) provides that the MACT emission limitation "shall not be less stringent than the emission control which is achieved in practice by the best controlled similar source, as determined by the permitting authority

." The commission believes that the use of best available control technology (BACT) as required by Chapter 116 will, in most cases, meet the level of control contemplated by §63 .43(d)(1) . Section 116.116(e) allows for the use of ten-year old BACT for qualified facilities. In some cases, ten-year old BACT may not necessarily be equivalent to today's BACT If a case-by-case MACT determination is more restrictive than BACT, the affected source will be required to meet the MACT requirements. An additional prohibition on the use of §116.116(e) is the requirement for case-by-case MACT determinations to go through public notice. Affected sources will have limited use of flexible permits under Subchapter G

. Currently, flexible permits allowfor control that exceeds BACT on one facility in lieu of installing controls on other facilities. Section 112(g) and 40 CFR Part 63, Subpart B, require the case-by-case MACT determination to be applied to the specific affected facilities. Therefore, §116.711(3) was revised to indicate that BACT shall be applied to specific facilities that must comply with Subchapter C . As long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with 

### 23TexReg 6976 July 3, 1998 Texas Registerdeterminations made under Subchapter C . Again, if a case-bycase MACT determination is more restrictive than BACT, the source will be required to meet the MACT requirements. In §116.181, concerning Exclusions, the commission adopts the same set of exclusions that are provided in 40 CFR 63, §63 .40(c)-(f) . The commission has determined that in order to provide a programconsistent with the requirements of 40 CFR Part 63, §§63

.40-63.44, the same set of exclusions should be provided. In general, if the owner or operator wants to construct or reconstruct an affected source (as specified in §116.180(a)(1) and (2), concerning Applicability), then prior to that construction or reconstruction, the owner or operator must apply to the commission for a case-by-case MACT determination under §116 .182, concerningApplication . Theapplication must contain the information required by the commission as provided in §116 .111, concerning General Application. In addition, the application must specify the emission controls that will ensure that MACTwill be met . Finally, the application for the proposed constructed or reconstructed affected source must undergo the public notice requirements required by §116.130, which includes a 30-day public comment period and opportunity for a contested case hearing. After fully considering public comments and the results of any hearing, the commission would then issue (or deny) a permit, or approve a permit amendment, authorizing the construction or reconstruction of the affected source. The case-by-case MACT determination codified in a permit issued under Chapter 116 would become an applicable requirement of Chapter 122 after satisfying the appropriate operating permit revision process and would be included as a condition in an operating permit. The executive director of the commission certifies that the rule as adopted satisfies all applicable requirements established by 40 CFR §§63.40-63.44for a §112(g) program . As outlined in the EPApreamble to the final rules implementing §112(g) (see 61 FR 68390), the programproposed is not required to have EPA approval before taking effect. SUBCHAPTER D

: PERMIT RENEWALS. The sections in Subchapter D (§116

.310, Notification of Permit Holder, §116.311, Permit Renewal Application, §116.312, Public Notification and Comment Procedures, §116.313, Renewal Application Fees, §116.314, Review Schedule) were included in the regulatory reformchanges. The commission is readopting these sections because they implement the TCAA requirements in §382 .055, concerning renewals of NSR permits. The sections include the process for notifying permit holders that their permits are due for renewal and they contain the requirements for renewal fees and the reviewschedule for a renewal . The contents of a renewal application are described as well as the requirements for public notice of renewals. Section 116

.311(5) is added to include the requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of Subchapter Cof this chapter. Section 116.314, concerning ReviewSchedule, is amended to refer to the correct chapters of the commission's regulations concerning contested case hearings. SUBCHAPTER F: STANDARD PERMITS. The commission adopts the new §116 .610(d) to clarify that facilities subject to Subchapter C of this chapter are not eligible for a standard permit under Chapter 116, unless the particular standard permit's terms and conditions meet the requirements of Subchapter C . This is because 40 CFR Part 63, §63.43(c)(2)(ii), requires all case-by-case MACT determinations to be subject to public notice. Section 116.614, concerning Standard Permit Fees, was amended to correct the commission mailing address where permit fees are submitted. The previous mailing address did not have the correct mail code or zip code. Section 116.620, concerning Installation and/or Modification of Oil and Gas Facilities, was amended to reference the appropriate exemptions under Chapter 106 rather than the former standard exemption. In addition, §116.620(a)(13) nowincludes reference to case-by-case MACT reviewunder Subchapter C . The commission also amended §116.621(2)(F), concerning municipal solid waste landfills, to refer tothe correctexemptions under Chapter 106rather than the former standard exemption. In addition, §116.621(2)(F) includes reference to case-by-case MACT reviewunder Subchapter C . SUBCHAPTER G

: FLEXIBLE PERMITS . Consistent with the deletion of §116.110(b), the operations certification requirements contained in §116.710(b) have also been deleted. Section 116.710(c) is revised to be consistent with the changes proposed to §116.116(e), concerning seals of Texas licensed professional engineers. Section 116

.711(3) is revised to require applicants to demonstrate that the proposed control technology meets the current BACT requirements foranyconstructed or reconstructed facility that is required to meet Subchapter C . Section 116

.711(11), concerning flexible permit applications, was amended by adding a requirement that facilities subject to review for constructed or reconstructed major sources of hazardous airpollutants under FCAA, §112(g) and 40CFR Part 63 must comply with Subchapter C . Section 116.715(a), concerning general and special conditions, was amended to include the case-by-case MACT reviewunder Subchapter C when considering whether a facility is eligible for a flexible permit under §116.710. A reference to Subchapter C was added to ensure that a facility operating under the terms of a flexible permit is in compliance with the federal permitting requirements of Subchapter C . As noted in the preamble discussion concerning Subchapter C, as long as a facility applies BACT (or MACT if it is determined to be more restrictive that BACT) and conducts public notice, the facility would still be able to use flexible permits in conjunction with case-by-case MACT determinations. In addition, §116 .715 is amended to make the correct reference to Chapter 106. In order to properly refer to the Engineering Services Section, §116 .715(c)(4) was amended to delete a reference to the Source and Mobile Monitoring Section. Section 116

.740(b), concerning public notice and comment, is added to require public notice for flexible permit amendments that address a case-by-case MACT determination under Subchapter C

. Flexible permit amendments that do not concern case-by-case MACT determinations are not required to complete the public notice process. This change was made toallow sources to continue to fully utilize flexible permits while meeting the conditions of Subchapter C . 

### ADOPTEDRULES July 3, 1998 23 TexReg 6977Sections 116 .721 and 116.750, concerning Amendments and Alterations and Flexible Permit Fee, were amended to correctly reference Chapter 106 rather than the former Chapter 116for standard exemptions. Section 116.750(b) was amended to clarify that the minimum fee for a flexible permit amendment is $450

. This is not a change to the existing fee structure; rather, it is to correct an oversight to include the $450 minimumfee. The $450 minimum

fee has been applied, when applicable, to all applications for flexible permit amendments. This correction makes thissection consistent with Subchapter Bregarding fees for NSRpermit amendments. REVIEW

OF AGENCY RULES. The commission adopts the reviewof the rules contained in Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, as mandated by the General Appropriations Act, Article IX, §167. Section 167 requires state agencies to review and consider for readoption rules adopted under the Administrative Procedure Act (APA) . The review includes, at a minimum, an assessment that the reason for the rules continues toexist. The commission reviewed the rules in Chapter 116 and determined that the rules in Chapter 116 are still necessary since they implement critical provisions of the Texas Health and Safety Code, Texas Clean Air Act, Chapter 382, as well as 42 United States Code Annotated, §§7401 to 7671 q, of the Federal Clean Air Act. Chapter 116 provides the procedures for action on any application for a permit for construction or modification or renewal of a permit for a facility that will emit air contaminants into the air of the state. No comments were received regarding the readoption of the rules. FINAL REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code (the Code), §2001 .0225, and has determined that the rulemaking is not subject to §2001 .0225 because it does not meet the definition of a "major environmental rule" as defined in the Code. The portions of the rules implementing the FCAA, §112(g) do not meet the definition because the obligations have already been established by federal lawand thus are not new requirements. The other portions of the rules correcting typos, clarifying language, and instituting regulatory reformchanges are not of a magnitude to affect the economic factors in a material way . TAKINGS IMPACT ASSESSMENT . The commission has prepared a takings impact assessment for these rules under Texas Government Code, §2007.043. The following is a summary of that assessment . The specific purpose of the rule amendments and repeals is to implement the requirements of Title III of the FCAA, Hazardous Air Pollutants, §112(g), Modifications, and 40 CFR Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)) . The adopted amendments and repeals implement the commission's guidelines on regulatory reformas well as provide clarifications to existing rule language, streamline procedures, and make the rule consistent with other commission rules. Adoption and enforcement of the rule amendments and repeal will not create a burden on private real property. COASTAL MANAGEMENT PROGRAMCONSISTENCY REVIEW . The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordancewith the Coastal CoordinationAct of 1991, as amended (Texas Natural Resource Conservation Commission. Natural Resources Code, §§33 .201 et. seq.), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with theTexas Coastal Management Program

. As required by 31 TAC §505.11(b)(2) and §505.22(a), and 30 TAC §281 .45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with applicable CMP goals and policies. The commission reviewed this rulemaking action for consistency, and has determined that it is consistent with the applicable CMP goals and policies. The revisions to Chapter 116 implement the requirements of Title III of the FCAA, Hazardous Air Pollutants, §112(g), Modifications, and 40 CFR Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology. The revisions are consistent with the goals and policies of the CMP because they implement the new§112(g) program . The new§112(g) program requires preconstruction reviewof major sources of hazardous air pollutants. This newprogram will require a reviewof the controls proposed for these major sources and could result in a reduction in air emissions. The majority of the revisions will not impact air emissions since they are being done under the commission's guidelines on regulatory reform or for the purpose of clarification of existing procedures. The changes concerning fees should not impact the status quo of the NSR permitting program, since the changes concerning direct costs provide consistency when calculating fees for new construction permits. HEARINGAND COMMENTERS. A public hearing was held in Austin on April 16, 1998, and the public comment period closed on April 20, 1998

. Nooral testimonywas received at thehearing on the proposed rules or on the rules reviewof Chapter 116 . The EPA, the Texas Industry Project (TIP), and TU Services (TU) submitted written comments on the proposal . TU Services commented that in §116.15(7), for purposes of MACT, the definition of "newsource" should conformto the definition contained in the FCAA, §112(g) . The FCAA, §112(a)(4) defines "newsource" as "a stationary source the construction or reconstruction of which is commenced after the Administrator first proposes regulations under this section establishing an emission standard applicable to each source." Section 116.10(12) of the General Definitions does define "newsource" ; however, that definition is not intended to modify the §112(a)(4) definition of "newsource." The "MACT emission limitation for newsources" terminology and definition was taken directly fromPart 63 . It is not the commission's intent to revise the definition of "newsource" or toapplyit in any way that differsfromthe interpretation given by the EPA . The TIP commented that the last sentence of §116.15(8), the definition of "Process or production unit" is confusing and should be deleted. This is because the sentence contains the federal term"facility" which is different than the state definition. The commission agrees that inconsistencies exist between state and federal terminology; however, it does not believe that the proposed deletion is necessary. This definition was taken directly fromPart 63and the commission intends to interpret the term"facility" consistent with the apparent intent of Part 63. The commission believes that the EPA's use of the term"facility" is intended toclarify that a plant site may contain multiple process or production units. 

### 23 TexReg 6978 July 3, 1998 Texas RegisterThroughout the remainder of Chapter 116, the commission has

revised the rules to refer to "affected sources." The definition of "Affected source" is in §116.15(1), concerning Section 112(g) Definitions. That termis defined as "the stationary source or group of stationary sources which, when fabricated (on-site), erected, or installed meets the criteria in §116.180(a)(1) and (2) of this title (relating to Applicability) ." Sections 116.180(a)(1) and (2) incorporate from 40 CFR Part 63 the definitions of "construct a major source" and "reconstruct a major source." Since an "affected source" is actually a source that is either constructing or reconstructing, it is appropriate to use the term "affected source" to describe the applicability of Subchapter C . The TIP suggested moving the phrase "before any actual work is begun on the facility" fromthe end of §116 .110(a)(4) to the general language of subsection (a) in orderclarify whether this phrase modifies paragraph (4) or paragraphs (1)-(4). The commission agrees with this suggestion and has incorporated this change for adoption. The intent of this phrase is to modify paragraphs (1)-(4) . This change does not alter the current practice of the commission. The TIP commented that §116.110(c) should refer to constructed or reconstructed "sources" rather than "facilities" to be consistent with the definition of "affected source" in §116.15(1) . The commission agrees with the comments and has revised §116 .110(c) to refer to read as follows: "Exclusion. Owners or operators of affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) are not authorized to use:" TU Services commented that in §116.110(d)(1), thecommission should consider extending the time period for notification of ownership changes that involve multiple sites and permits . The commission declines to make the changesuggested byTU because the suggestion is beyond the scope of the rule proposal . The commission believes that it is important to maintain as current and accurate files as possible concerning ownership of permitted facilities. The commission is not aware of any situations where the 30-daytime period did not allowa sufficient amount of time to submit the required information. The TIPcommented that §116.111(2)(K) incorrectly uses word "facility" when describing who is subject to Subchapter Cand recommended alternative language. The commission agrees with the suggestion and has revised §116.111(2)(K) . However, to be consistent, the commission will use the term "affected source" rather than "proposed major source" as suggested by TIP The rulewill be revised to read as follows: "Hazardous Air Pollutants. Affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions) for hazardous air pollutants shall comply with all applicable requirements under Subchapter C of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) ." The TIP commented that the use of "records" and "paragraph" in §116.115(b)(2)(F) is confusing and supports the original language previously listed in §116.115(b)(6)

. The commission agrees that the proposed language could be simplified and has revised §116.115(b)(2)(F) to delete the phrase "by this paragraph." To be consistent, §116.115(b)(2)(F)(i) is revised to read "maintain a copy of the permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours;" . The TIP commented that the reference to "exemptions" should be deleted from §116.115(a) and §116 .115(c) . It also commented that Chapter 116 is not consistent when listing which types of permit authorizations are applicable. Some references generically list "permits" in some references assumed to mean all types of permit authorizations versus other references that specify "flexible permits" or "standard permits." The intent of the proposed change was not to suggest that exemptions nowcontained in Chapter 106 would have special conditions. Chapter 116 has authorized several types of exemptions in the past; for example, special exemptions and standard exemptions. Special exemptions, although no longer issued by the commission, may contain special conditions that remain enforceable. The language in §116.115(a) and (c) is revised to include a reference to "special exemptions." Generic references to "permits" exist in the current rule language and the suggestion for greater specificitywill be considered in future regulatory reformefforts. The TIP commented that deleting the words "govern and " from §116.115(b)(2)(I)(ii) is a substantive change and recommends adding those words back as originally listed in §116.115(b)(9) . While the commission does not believe that the deletion would change the intent of the rule, the rule has been revisedto retain the original language. TIP commented that §116 .115(c)(2)(B) appeared to require "increases in a particular pollutant" to be subject toSubchapter C . TIP noted that this would be more restrictive than 40 CFR Part 63, since the rule only implements the sections of §112(g) that require newsource MACTfor construction or reconstruction of major sources and not the section that requires existing source MACT for modifications of existing facilities. TIP recommended deleting the reference to Subchapter C to make the rule language clear. The commission agrees that "increases in a particulate pollutant" not associated with construction or reconstruction of a major source of HAPs should not cause a facility to be subject to Subchapter C

. 40 CFR Part 63, Subpart A, General Provisions, §63.4(b), Prohibited activities and circumvention, prohibits the building, erection, installation, or use of any article, machine, equipment, or process that conceals an emission that would otherwise constitute noncompliance with a relevant standard. The section describes such concealment, in part, as "the fragmentation of an operation such the operation avoids regulation by a relevant standard." The intent of this language is to allow the commission the opportunity to review future projects at facilities with permits that authorize emissions of HAPs near the major source threshold. This is consistent with the procedures used in the reviewof permits subject to either Prevention of Significant Deterioration under §§116.160-116.163 or Nonattainment Reviewunder §116.150 and §116.151 . Therefore, the commission has not made the requested change. TIP commented that adding the word "include" in §116.116(a) inappropriately broadened the types of representations that are in permit applications and that become conditions upon which a permit is issued. TIP recommended deleting theword "include." 

### ADOPTEDRULES July 3, 1998 23 TexReg 6979It was not the commission's intent to broaden the scope of

representations that become conditions upon which permits, special permits, orspecial exemptions are issued by use of the word "include." However, the commission recognizes that this language could result in some misinterpretation and agrees that the word "include" should be deleted fromthe final rule. TIP commented that the language in §116 .116(b)(3), "that concerns a determination for constructed or reconstructed sources under Subchapter C . .." is confusing. TIP suggested rewriting that section to say "Any person who applies for an amendment to a permit to construct or reconstruct a major source of HAPsubject to Subchapter C .. .." The commission agrees that the term"concerns" is unclear and has revised the rule language to read "Any person who applies for an amendment to construct or reconstruct an affected source (as defined in §116

.15(1) of this title (relating to Section 112(g) Definitions) under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) shall comply with the provisions in §§116.130-116-134, 116.136, and 116.137 of this title (relating to Public Notification and Comment Procedures) ." TU Services commented that the term"effects screening level" should be defined in §116.116(e)(3)(C) and (E) for clarity and consistency

. The commission does notthink it is necessaryto define "effects screening level" (ESL) . ESLs are used to evaluate the potential for effects as a result of exposure to a particular substance . They are based on data concerning health effects, odor, nuisance potential, vegetation effects, or corrosion effects. They are not ambient air standards. If predicted or measured airborne levels of a substance do not exceed the screening level, the commission would not expect any effects. If concentrations of a substanceexceed the ESL, it does not necessarily indicate a problem, but may be a triggerfor a more in-depth review . TIP commented that the proposed changes to §116.116(e)(6) may create confusion about the addition of control methods at qualified facilities. TIP believes that the changes appear to require that all additional control measures are subject to the requirements of Chapter 116, rather than only those additional control methodsthat are being implemented for the purpose of making a facility a qualified facility . Thecommission agreeswith the proposed changes and revised §116.116(e)(6) to read: "The implementation of any additional control methods to qualify a facility shall be subject to the requirements of this chapter." TU Services commented that §116.117(b)(5)(B) should identify physical location(s) at which an "effects screening level" is to be determined. The commission has added the following phrase "at any point off-property" to the end of §1 16.117(b)(5)(8) . Under the former rules, for the purpose of establishing reportable limits at qualified facilities, the impact of ESLs has always been considered at points beyond the property line. This change merely clarifies the long standing practice of the commission. TIP commented that §116.121 should refer to "air contaminant" rather than "substance" since "air contaminant" is a defined term in the TCAA and it is commonly used in the area of air pollution control . Since "substance" is not currently defined in the rules, the commission has added the following language to replace that term : "The compliance history is not required if the total increasedactual emissions of anyspecificaircontaminant (e.g., benzene, arsenic, etc.) at the site will be accompanied by greater than a 1 .1 to 1 reduction of the same specific air contaminant at the site." TIP requested that the commission not adopt the changes to §116.122(b) which would change the rule so that it would refer to a singular violation rather than plural violations. TIP requested that the rule be left in its plural form . It appears that TIPbelieves that changing "violations" fromplural to singular alters the intent of this subsection. The commission did not intend to change the commission's procedures for compiling compliance history and the rule has been revised to refer to "violations." TU Services commented that the public notice procedures in Subchapter B, Public Notification and Comment Procedures, should be modified to match the existing procedures in Chapter 122, concerning Federal Operating Permits . The current public notice procedures forChapter 116conform with the requirements of the TCAA and the APA . The procedures for Chapter 122 were developed in order to meet the requirements of 40 CFRPart 70, Federal Operating Permits . In the absence of regulatory and statutory changes, public notice procedures under Chapter 116cannot be revised to implement the procedures under Chapter 122 . The request ofTU Services is beyond the scope of the rulemaking proposal . TIP commented that although §116 .141(b) was not proposed for revision, it should be revised to say "shall" rather than "may" regarding the schedule to be used forfee payments. TIPnoted that the payment of fees is not discretionary . The commission agrees that the fee schedules contained in this subsection are not optional and that the word "shall" is more appropriate than "may." In addition, the commission has changed "schedule" to "schedules" to be consistent with the structure of this subsection. This change does not alter the current commission practice for establishing fees for permit applications. EPA commented on a section of the proposal preamble that the interpretation of §63 .43(d) to require case-by-case MACT determination to be equivalent to BACT determinations is incorrect. EPAnotedthat the FCAA contains specificdefinitions for MACT and BACT and EPA does not consider the terms to be equivalent. It further stated that the state's administrative procedures for preconstruction reviewmay be used as long as they meet §63.43(c)(2)(ii) . The commission believes in most cases that BACT determinations will exceed the requirements of case-by-case MACT determinations as required in 40 CFR Part 63 Subpart B, Requirements for Control Technology . In cases where the Part 63 MACTdetermination is more restrictive than BACT as required in Chapter 116, the commission intends to comply with 40CFR Part 63, Subpart B, Requirements for Control Technology . No changes to the rule language are necessary to make this clarification. If a case-by-case MACT determination is more restrictive than BACT, the affected source will be required to meet the MACT requirements.



### 23TexReg 6980 July 3, 1998 Texas RegisterTIP stated that the definitions of "Construct a major source"

and "Reconstruct a major source" in §116 .180(a)(1) and (2) will cause confusion since they are not included in §116.15, concerning §112(g) Definitions. Although these terms can be considered definitions, they also contain several procedural requirements. The commission believes that procedural requirements are not appropriate for definition sections. Therefore, the rule has not been revised in response to this comment. TU Services requested that the term "toxics-best available control technology" in §116 .180(a)(1)(B)(ii)(I) be defined. 40 CRF Part 63 does not contain a definition of "toxics-best available control technology," rather, it uses the term "toxics BACT" as an example of control technology that states may use to implement §112(g) . The preamble to 40 CFR Part 63, Subpart B (61 FR 68383, 68389) discusses the definition of "construct a majorsource." Specifically, the EPAacknowledges that states may use different levels of control in their air quality programs (e.g., BACT, lowest achievable emission rule, or a state toxics programthat requires toxic-BACT), for the purpose of the definition of "construct a major source." The commission intends to implement the requirements of §112(g) using the current NSR permitting process, which requires a BACT and impacts review

. Therefore, the commission will not make the requested change. Both the EPA and TIP commented on the effective date of the commission's §112(g) program . The EPAcommented that §116.182 limits the implementation of §112(g) to the sources in Texas covered by the Texas interimoperating permit program . EPA noted that sources not covered by the interimprogram will also be subject to §112(g) after June 29, 1998, and will be required toobtain a §112(g) determination from the EPApriorto the start of construction. TIP commented that in §116.180(b), the commission should conductthe§112(g) reviews forsources in Texas in order to avoid duplicative reviewby the commission and the EPAand recommended adopting whatever compliance date was necessary to avoid such duplication. Based on the comments received fromthe EPAand on discussions with the EPAstaff, the commission has revised the final rule to make clear that the effective date for the §112(g) programis June 29, 1998. The commission will conduct all of the §112(g) reviews that may be required by Subchapter C . This issue is discussed further in the "EXPLANATION OF ADOPTED RULES" section of this preamble. TIP commented that §116.181(d) (which implements 40 CFR §63 .40(d)) should be deleted, since it could result in local authorities making case-by-case MACT determinations under TCAA, §382.113 that are more restrictive than thosethat might be made by the commission. The TIP appears to believe that removing this rule language would prevent local authorities fromdeveloping a more stringent control requirement than a state or federal requirement . This language was taken from §63.40(d) and does not enhance local authority beyond that already authorized under TCAA, §382.113. Under §382.113, local programs are not prohibited fromhaving requirements more stringent than state or federal requirements. The language has not been revised in response to this comment . TIP commented that §116.182 is confusing and suggested that the language be rewritten to refer to "affected sources" rather than "new facility (major source) ." TIPalso noted that the reference to "approved operating permit program" could cause confusion about the effective date of the §112(g) programin Texas. The commission agrees with the comment regarding the use of the term "affected source" and has revised the final rule to reflect this change. The discussion regarding the effective date of the §112(g) programis in the section of the preamble entitled "EXPLANATION OF ADOPTED RULES." The final rule has been revised to clarify the effective date of the §112(g) program . TIP commented that §116.183 contains an incorrect reference to "facility" and suggested that the section be rewritten to refer to "affected source" as defined in §116 .15(1) . The commission agrees with this comment and has revised the final rule to say "Proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with the public notice requirements contained in §116.130 of this title (relating to Applicability) . TIP commented that the language of §116.312 currently requires the executive director to provide written notice to permit holders within 30 days of receipt of a complete application for permit renewal . TIP noted that the proposed revisions did not specifically provide for notice within 30days of receipt of a complete application. TIP further commented that neither the current nor proposed rule explains whether the commission is referring toadministratively or technicallycompleteapplications. TIP suggested that sincethe commission is making changes to Chapter 116 under regulatory reform, the commission should consider outlining a procedure for reviewing renewal applications and notifying applicants of errors and for providing notice of when an application is ready to undergo public notice. The commission has revised the first sentence in subsection (a) to read as follows: "The executive director shall mail a written notice to the permit holder within 30 days after receipt of a complete application." Current practice is to send a permit renewal application to public notice as soon as the application is deemed administratively complete. Currently, applicants are notified of errors and requests for additional information by letter throughout the reviewprocess. Although this section was revised under the regulatory reform process, the commission believes adopting a newprocess with additional timelines for reviewof renewal applications without additional opportunity for public comment would be inappropriate. The commission is not making the suggested changes beyond the one noted previously

. TIP commented that §116.610(d) contained an incorrect reference to "facility" and suggested that the section be rewritten to refer to "Affected source" as defined in §116.15(1) . The commission agrees with this comment and has replaced the proposed languagewith the following: "Any project involving a proposed affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) ." Affected sources subject to Subchapter Cof this chapter may use a standard permit under this subchapter only if the terms of the specific standard permit meet the requirements of Subchapter C of this chapter." 

### ADOPTEDRULES July 3, 1998 23 TexReg 6981TIP suggested that the phrase "is subject to" be added to

§116.621(2)(F) prior to the reference to Subchapter C . This is because the clause "any projectwhich constitutes a newmajor source, or majormodification" appliesto new source reviewand not to §112(g) sources. The commission agrees with the suggested comment and will revise §116.621(2)(F) to read: "any project which constitutes a new major source, or major modification under the new source reviewrequirements of the FCAA, Part C (Prevention of Significant Deterioration review), Part D (nonattainment review) and regulations promulgated thereunder, or is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)), subject to Subchapter Cof this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) shall be subject to the requirements of §116.110 of this title (relating toApplicability) rather than this subchapter." The commission agrees that the clause "any project which constitutes a new major source, or major modification" applies to new source reviewand not to §112(g) sources. TIP commented that the language in §116.711(3) is confusing since all changes to facilities with HAPs could "concern" a MACT determination. TIP requested that the language be revised to be clear that the section applies to major sources of HAPs that are subject to Subchapter Cand not all facilities. The commission agrees with the comment and will revise §116.711(3) to read: "For new facilities and proposed affected sources (asdefined in §116.15(1) of this title (relating to Section 112(g) Definitions)), subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) the use of BACT shall be demonstrated for the individual facility or affected source. TIPrequested that the language in §116.711(11) be revised to be clear that the section applies to majorsources of HAPs that are subject to Subchapter C and not all facilities. The commission agrees with the comment and has revised §116 .711(11) to read: "Federal standards of reviewfor constructed or reconstructed major sources of hazardous air pollutants. If the proposed source is an affected source (as defined in §116.15(1) of this title (relating toSection112(g) Definitions)), itshall complywill allapplicable requirements under Subchapter Cof this chapter (relating to HazardousAir Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) ." TIPcommented that the language "that concerns a maximum achievable control technology determination" in §116.740(b) is ambiguous and recommended that it be deleted. The commission agrees with the comment and has changed the final rule to say: "Any person who applies for an amendment to a flexible permit regarding an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) shall comply with the provisions in §§116.130-116-134, 116.136, and 116.137 of this title." Subchapter A

. Definitions 30TAC§§116

.110,116.11,116.13,116 .14 STATUTORY AUTHORITY . The repeals are adopted under the Texas Health and Safety Code, theTexas CleanAir Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382 .032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382 .040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new

facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382 .0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382 .0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission tocharge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5 .234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filedwith the Office of the Secretary of State on June 18, 1998. TRD-9809783 

### 23 TexReg 6982 July 3, 1998 Texas RegisterKevin McCalla

Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 30TAC§§116.10, 116.11, 116.13-116 .15 STATUTORY AUTHORITY The new sections are adopted under the Texas Health and Safety Code, theTexas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA tosafeguard the air of the state; §382 .003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382 .041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382 .0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382 .0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. §116 .14 . Standard Permit Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Off-plant receptor-For the purposes of Subchapter F of this chapter (relating to Standard Permits) only, shall be defined as any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or owner of the property upon which the facilities are located.

(2) Oil and gas facility-For the purposes of Subchapter F of this chapter only, shall be defined as facilities which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface. These oil and gas facilities include, but are not limited to

: oil or gas production facilities; water injection facilities; carbon dioxide separation facilities; or oil or gas pipeline facilities consisting of one or more tanks, separators, dehydration units, free water knock-outs, gunbarrels, heater treaters, vapor recovery units, flares, pumps, internal combustion engines, gas turbines, compressors, natural gas liquid recovery units, or gas sweetening and other gas conditioning facilities. This definition does not include sulfur recovery units.

(3) Sulfur recovery unit-For the purposes of Subchapter F of this chapter only, shall be defined as a process device whose primary purpose is to recover elemental sulfur fromacid gas. §116 .15. Section 112(g) Definitions. The following words and terms, when used in Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (FCAA, § 112(g), 40 Code of Federal Regulations (CFR) Part 63)), as amended December 27, 1996, shall have the following meanings, unless the context clearly indicates otherwise.(1) Affected source-The stationary source or group of stationary sources which, when fabricated (on-site), erected, or installed meets the criteria in §116 .180(a)(1) and (2) of this title (relating to Applicability) and for which no MACT standard has been promulgated under 40 CFR Part 63.

(2) Control technology-Measures, processes, methods, systems, or techniques to limit the emission of HAPs including, but not limited to, measures that:

(A) reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution of materials, or other modifications; sions ; (B) enclose systems or processes to eliminate emis-

(C) collect, capture, or treat such pollutants when released froma process, stack, storage, or fugitive emissions point;

(D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in 42 United States Code 7412(h) ; or

(E) are a combination of subparagraphs (A)-(D) of this paragraph. 

### ADOPTEDRULES July 3, 1998 23 TexReg 6983(3) Electric utility steamgenerating unit-Any fossil fuel

fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that co-generates steam and electricity and supplies more than one-third of its potential electric output capacity and more than 25 megawatts electric output to any utility power distribution systemfor sale shall be considered an electric utility steamgenerating unit.

(4) Greenfield site-A contiguous area under common control that is an undeveloped site.

(5) Hazardous air pollutant (HAP)-Any air pollutant listed under the FCAA, §112(b) .

(6) List of source categories-The Source Category List required by FCAA, §112(c)

.

(7) Maximum achievable control technology (MACT) emission limitation for newsources-The emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, andwhich reflects the maximum degree of reduction in emissions that the executive director, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable by the constructed or reconstructed major source.

(8) Process or production unit-Any collection of structures and/or equipment, that processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product . A single facility may contain more than one process or production unit.

(9) Research and development activities-Activities conducted at a research or laboratory facility whose primary purpose is to conduct research and development into newprocesses and products, where such source is operated under the close supervision of technically trained personnel and is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner.

(10) Similar source-A stationary source or process that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed major source such that the source could be controlled using the same control technology. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be avalid exercise of the agency's legal authority . Filed with the Office of the Secretary of State onJune 18, 1998. TRD-9809784 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Subchapter B

. NewSource ReviewPermits Permit Application 30 TAC§§116

.110-116 .112, 116

.114-116.118 STATUTORY AUTHORITY . The repeals are adopted under the Texas Health and Safety Code, the Texas CleanAir Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382 .015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA

; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new

facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382 .0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent toobtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides fordenial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission tocharge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5 .115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5 .122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filed with the Office of the Secretary of State onJune 18, 1998. TRD-9809785 Kevin McCalla 

### 23 TexReg 6984 July 3, 1998 Texas RegisterDirector, Legal Division

Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Division 1 . Permit Application 30 TAC §§116

.110-16.112,116.114-116.118 STATUTORY AUTHORITY The newsections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA

; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382 .030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382

.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission tocharge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5 .122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997 . §116.110

. Applicability. (a) Permit to construct. Before any actual work is begun on the facility, 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 either:

(1) obtain a permit under §116.111 of this title (relating to General Application) ;

(2) satisfy the conditions for a standard permit under the requirements in: Permits) ; (A) Subchapter F of this chapter (relating to Standard

(B) Chapter 321, Subchapter K of this title (relating to Concentrated Animal Feeding Operations) ; or (C) Chapter 332 of this title (relating to Composting) ;

(D) Chapter 330, Subchapter Nof this title (relating to Landfill Mining) ;

(3) satisfy the conditions for a flexible permit under the requirements in Subchapter G of this chapter (relating to Flexible Permits) ; or

(4) satisfy the conditions for exempt facilities under Chapter 106 of this title (relating to Exemptions fromPermitting) . (b) Modifications to existing permitted facilities. Modifications to existing permitted facilities may be handled through the amendment of an existing permit or an existing flexible permit . (c) Exclusion. Owners or operators of affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) are not authorized to use:

(1) an exemption under Chapter 106 of this title; (2) standard permits under Subchapter F of this chapter that do not meet the requirements of Subchapter Cof this chapter; or (3) §116.116(e) of this title (relating to Changes to Facilities). (d) Change in ownership. (1) Within 30 days after the change of ownership of a facility permitted under this chapter, the newowner shall notify the commission and certify the following:

(A) the date of the ownership change; (B) the name, address, phone number, and contact person for the newowner;

(C) an agreement by the newowner to be bound by all permit conditions and all representations made in the permit application and any amendments and alterations; emitted; and (D) there will be no change in the type of pollutants

(E) there will be no increase in the quantity of pollutants emitted. 

### ADOPTEDRULES July 3, 1998 23 TexReg 6985(2) The newowner shall comply with all permit conditions and all representations made in the permit application and any amendments and alterations. (e) Submittal under seal of Texas licensed professional engineer. Applications for permit or permit amendment with an estimated capital cost of the project above $2 million, and not subject to any exemption contained in the Texas Engineering Practice Act (TEPA), shall besubmitted under seal of a Texas licensed professional engineer. However, nothing in this subsection shall limit or affect any requirement which may apply tothe practice of engineering under the TEPA or the actions of the Texas Board of Professional Engineers. The estimated capital cost is defined in §116.141 of this title (relating to Determination of Fees) . (f) Responsibility for permit application. The owner of the facility or the operator of the facility authorized to act for the owner is responsible for complying with this section. §116.111 . General Application. In order to be granted a permit, amendment, or special permit amendment, the application must include: ,

(1) a completed FormPI-1 General Application signed by an authorized representative of the applicant. All additional support information specified on the formmust be provided before the application is complete;

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

(A) Protection of public health and welfare. (i) The emissions fromthe proposed facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people.

(ii) For issuance of a permit for construction or modification of any facility within 3,000 feet of an elementary,junior high/middle, or senior high school, the commission shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor fromthe facility may have on the individuals attending the school(s) .

(B) Measurement of emissions. The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission (TNRCC) Sampling Procedures Manual ."

(C) Best available control technology (BACT) . The proposed facility will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions fromthe facility.

(D) New

Source Performance Standards (NSPS) . The emissions from the proposed facility will meet the requirements of any applicable NSPS as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA under FCAA, §111, as amended.

(E) National Emission Standards for Hazardous Air Pollutants (NESHAP) . The emissions fromthe proposed facility will meet the requirements of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA under FCAA, §112, as amended. (F) NESHAP for source categories. The emissions from the proposed facility will meet the requirements of any applicable maximumachievable control technology standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, § 112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §J12, 40 CFR 63)) .

(G) Performance demonstration. The proposed facility will achieve the performance specified in the permit application. The applicant may be required to submit additional engineering data after a permit has been issued in order to derimonstrate further that the proposed facility will achieve the performance specified in the permit application. In addition, dispersion modeling, monitoring, or stack testing may be required.

(H) Nonattainment review . If the proposed facility is located in a nonattainment area, it shall comply with all applicable requirements in this chapter concerning nonattainment review . (I) Prevention of Significant Deterioration (PSD) review . If the proposed facility is located in an attainment area, it shall comply with all applicable requirements in this chapter concerning PSD review

. (J) Air dispersion modeling. Computerized air dispersion modeling may be required by the executive director to determine air quality impacts froma proposed new facility or source modification. (K) Hazardous air pollutants. Affected sources (as defined in §116.15(l) of this title (relating to Section 112(g) Definitions)) for hazardous air pollutants shall comply with all applicable requirements under Subchapter Cof this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) . §116 .115. General and Special Conditions. (a) General and special conditions . Permits, special permits, standard permits, and special exemptions may contain general and special conditions. (b) General conditions. Holders of permits, special permits, standard permits, and special exemptions shall comply with the following:(1) the general conditions contained in the permit document if issued or amended prior to August 16, 1994; or

(2) the following general conditions if the permit or amendment is issued or amended on or after August 16, 1994, regardless of whether they are specifically stated within the permit document. (A) Voiding of permit . Apermit or permit amendment under this chapter is automatically void if the permit holder does one of the following:(i) fails to begin construction within 18 months of date of issuance. The executive director may grant a one-time 18- month extension to the date to begin construction;

(ii) discontinues construction for more than 18 consecutive months prior to completion; or able time. (iii) fails to complete construction within a reason-

(B) Report of construction progress. The permit holder shall report start of construction, construction interruptions exceeding 45 days, and completion of construction. The report shall 

### 23 TexReg 6986 July 3, 1998 Texas Registerbe given tothe appropriate regional office of the commission not later

than 15 working days after occurrence of the event.

(C) Start-up notification. (i) The permit holder shall notify the appropriate air programregional office of the commission prior tothe commencement of operations of the facilities authorized by the permit. The notification must be made in such a manner as to allowrepresentative of the commission to be present at the commencement of operations.

(ii) The permit holder shall provide a separate notification for the commencement of operations for each unit of phased construction, which may involve a series of units commencing operations at different times.

(D) Sampling requirements. (i) If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures.

(ii) All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission.

(iii) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.

(E) Equivalency of methods. The permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit . Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior totheir use in fulfilling any requirements of the permit .

(F) Recordkeeping. The permit holder shall : (i) maintain a copy of the permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours; (ii) keep all required records in a file at the plant site. If, however, the facility normally operates unattended, records shall be maintained at the nearest staffed location within Texas specified in the application;

(iii) make the records available at the request of personnel fromthe commission or any air pollution control program having jurisdiction;

(iv) comply with any additional recordkeeping requirements specified in special conditions attached to the permit ; and (v) retain information in the file for at least two years following the date that the information or data is obtained.

(G) Maximum allowable emission rates. The total emissions of air contaminants fromany of the sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources-MaximumAllowable Emission Rates."

(H) Maintenance of emission control . The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide notification for upsets and maintenance in accordance with §101 .6 and §101 .7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements) .

(1) Compliance with rules. (i) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the granting of the permit .

(ii) If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated.

(iii) Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit . (c) Special conditions. The holders of permits, special permits, standard permits, and special exemptions shall comply with all special conditions contained in the permit document.

(1) Special conditions may be attached to a permit that are more restrictive than the requirements of Title 30 of the Texas Administrative Code.

(2) Special condition for written approval . (A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:

(i) a standard permit under Subchapter F of this chapter (relating to Standard Permits) ; or

(ii) an exemption under Chapter 106 of this title (relating to Exemptions fromPermitting).

(B) Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either: ment ; or under (i) result in a significant impact on the air environ-

(ii) cause the facility to become subject to review (I) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) ; or (II) the provisions in §116.150 and §116.151 of this title (relating to Nonattainment Review) and §§116.160-116 .163 of this title (relating to Prevention of Significant Deterioration Review) . §116 .116 . Changes to Facilities. (a) Representations and conditions. The following are the conditions upon which a permit, special permit, or special exemption are issued:

(1) representations with regard to construction plans and operation procedures in an application for a permit, special permit, or special exemption; and 

### ADOPTEDRULES July 3, 1998 23 TexReg 6987(2) any general and special conditions attached to the

permit, special permit, or special exemption itself. (b) Permit amendments. (1) Except as provided in subsection (e) of this section, the permit holder shall not vary fromany representation or permit condition without obtaining a permit amendment if the change will cause: (A) a change in the method of control of emissions;

(B) a change in the character of the emissions; or contaminant . (C) an increase in the emission rate of any air

(2) Any person who requests permit amendments must receive prior approval by the executive director or the commission. Applications must be submitted with a completed FormPI-1 and are subject to the requirements of §116.111 of this title (relating to General Application) .

(3) Any person who applies for an amendment to a permit to construct or reconstruct an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40 CFR Part 63)) shall comply with the provisions in §§116 .130-116 .134, 116.136, and 116.137 of this title (relating to Public Notification and Comment Procedures) . (c) Permit alteration. (1) A permit alteration is: (A) a decrease in allowable emissions; or (B) any change froma representation in an application, general condition, or special condition in a permit that does not cause:

contaminant. (i) a change in the method of control of emissions;

(ii) a change in the character of emissions; or (iii) an increase in the emission rate of any air (2) Requests for permit alterations that must receive prior approval by the executive director are those that:

(A) result in an increase in off-property concentrations of air contaminants;

(B) involve a change in permit conditions; or (C) affect facility or control equipment performance. (3) The executive director shall be notified in writing of all other permit alterations not specified in paragraph (2) of this subsection.

(4) A request for permit alteration 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 §116.111(3) of this title.

(5) Permit alterations are not subject to the requirements §116 .111(3) of this title. (d) Exemption under Chapter 106 of this title (relating to Exemptions fromPermitting) in lieu of permit amendment or alteration. (1) A permit amendment or alteration is not required if the changes to the permitted facility qualify for an exemption under Chapter 106 of this title unless prohibited by permit condition as provided in §116.115 of this title (relating to General and Special Conditions) .

(2) All exempted changes to a permitted facility shall be incorporated into that facility's permit when the permit is amended or renewed. (e) Changes to qualified facilities. (1) Notwithstanding any other subsection of this section, a physical or operational change may be made to a qualified facility if it can be determined that the change does not result in:

(A) a net increase in allowable emissions of any air contaminant ; and emitted. (B) the emission of any air contaminant not previously

(2) In making the determination in paragraph (1) of this subsection, the effect on emissions of the following shall be considered: (A) any air pollution control method applied to the qualified facility;

(B) any decreases in allowable emissions fromother qualified facilities at the same commissionair quality account number that have received a preconstruction permit or permit amendment no earlier than 120 months before the change will occur; and

(C) any decrease in actual emissions from other qualified facilities at the same commissionair quality account number that are not included in subparagraph (B) of this paragraph.

(3) The determination in paragraph (1) of this subsection shall be based on the allowable emissions for air contaminant categories and any allowable emissions for individual compounds. If a physical or operational change would result in emissions of a air contaminant category or compound above the allowable emissions for that air contaminant category or compound, the amount above the allowable emissions must be offset by an equivalent decrease in emissions at the same facility or a different facility. In making this offset, the following applies.

(A) The offset shall be based on the same time periods (e .g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur.

(B) Emissions of different compounds within the same air contaminant category may be interchanged.

(C) For allowable emissions for individual compounds, any interchange shall adjust the emission rates for the different compounds in accordance with the ratio of the effects screening levels of the compounds.

(D) For allowable emissions for air contaminant categories, interchanges shall use the unadjusted emission rates for the different compounds.

(E) The effects screening level shall be determined by the executive director.

(F) An air contaminant category is a group of related compounds, such as volatile organic compounds, particulate matter, nitrogen oxides, and sulfur compounds.



### 23TexReg 6988 July 3, 1998 Texas Register(4) Persons making changes to qualified facilities under

this subsection shall comply with the applicable requirements of §116.117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities) and §116.118 of this title (relating to Pre-change Qualification) .

(5) As used in this subsection, the term"physical and operational change" does not include:

(A) construction of a new facility; or (B) changes to procedures regarding monitoring, determination of emissions and recordkeeping that are required by a permit . (6) Additional air pollution control methods may be implemented for the purpose of making a facility a qualified facility. The implementation of any additional control methods to qualify a facility shall be subject tothe requirements of this chapter. The owner or operator shall :

(A) utilize additional control methods that are as effective as best available control technology (BACT) required at the time the additional control methods are implemented; or

(B) demonstrate that the additional control methods, although not as effective as BACT, were implemented to comply with a law, rule, order, permit, or implemented to resolve a documented citizen complaint .

(7) For purposes of this subsection and § 116.117 of this title, the following subparagraphs apply.

(A) Intraplant trading means the consideration of decreases in allowable and actual emissions fromother qualified facilities in accordance with paragraph (2) of this subsection.

(B) The allowable emissions fromfacilities that were never constructed shall not be used in intraplant trading.

(C) The decreases in allowable and actual emissions shall be based on emission rates for the same time periods (e.g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur and for which an intraplant trade is desired. (D) Actual emissions shall be based on data that is representative of the emissions actually achieved from a facility during the relevant time period (e .g., hourly or annual rate) .

(8) The existing level of control may not be lessened for a qualified facility. (f) Use of credits. Notwithstanding any other subsection of this section, discrete emission reduction credits may be used to exceed permit allowables as described in § 101 .29(d)(4)(v) of this title (relating to Emission Credit Banking and Trading) if all applicable conditions of §101 .29 of this title are met. This subsection does not authorize any physical changes to a facility. §116 .117. Documentation and Notification of Changes to Qualified Facilities. (a) Persons making changes under §116.116(e) of this title (relating to Changes to Facilities) shall maintain documentation at the plant site demonstrating that the changes satisfy §116.116(e) of this title. If the plant site is unmanned, the regional manager may authorize an alternative site to maintain the documentation. The documentation shall be made available to representatives of the commission upon request. The documentation shall include: (1) quantification of all emission increases and decreases associated with the physical or operational change;

(2) a description of the physical or operational change; (3) a description of any equipment being installed; and (4) sufficient information as necessary to show that the project will comply with §116 .150 and §116.151 of this title (relating to Nonattainment Review) and §§116.160-116.163 of this title (relating to Prevention of Significant Deterioration Review) and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)). (b) Persons making such changes to qualified facilities shall comply with the following notification requirements.

(1) Annual report. For changes to qualified facilities when there is no intraplant trading under §116.116(e)(2) of this title, an annual report shall be submitted to the appropriate regional office of the commission by August 1 of each year. The report shall include all changes made under § 116.116(e) during the immediately preceding annual period July 1- June 30. This reporting period and the due date may be changed with the agreement of the commission's regional office. The annual report shall contain a PI-E formfor each change. The report need not include changes previously submitted by PI-E formto the commission under paragraphs (2) or (3) of this subsection or which have been incorporated into the permit for the facility. (2) Post-change notification. Post-change notification shall be required for changes to qualified facilities for which there is intraplant trading below the reportable limit. The notification shall be submitted on a PI-E formto the commission's NewSource Review Permits Division within 30 days after the change occurs.

(3) Pre-change notification only. Pre-change notification shall be required if a physical or operational change at a qualified facility will affect compliance with a permit special condition. The notice shall be made to the commission prior to the change. It shall identify the affected special condition and indicate the change needed or the desire to remove the special condition fromthe permit. The permit holder is relieved fromcomplying with the permit special condition upon the filing of the notice, provided the change complies with §116

.116(e) of this title. (4) Pre-change notification and approval . Pre-change notification shall be required for changes to qualified facilities for which there is intraplant trading above the reportable limit. The notification of the change shall be submitted on a PI-E formto the commission's NewSource ReviewPermits Division before the change may occur. The change may occur after the receipt of written notification fromthe commission that there are no objections, or 45 days after the PI-E is received by the commission, whichever occurs first. (5) Reportable limit. The executive director shall establish reportable limits. A reportable limit is either:

(A) an emission rate that is adjusted based on a factor that accounts for a ratioof the effects screening levels of the different compounds and the difference in location of emissions involved in an intraplant trade; or

(B) an emission rate that results in a sumtotal of modeled ground level concentration for the account that shall not exceed two times the effects screening level at any point off property. 

### ADOPTEDRULES July 3, 1998 23 TexReg 6989(c) For facilities that have received a preconstruction permit,

all changes for which the notification procedure of subsection (b) of this section has been used shall be incorporated into the permit when the permit is amended or renewed. (d) Nothing in this section shall limit the applicability of any federal requirement. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filed with the Office of the Secretary of State on June 18, 1998. TRD-9809786 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 Forfurther information, please call : (512) 239-1966 Compliance History 30TAC§§116

.120-116 .126 STATUTORY AUTHORITY . The repeals are adopted under the Texas Health and Safety Code, the Texas CleanAir Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382 .011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382 .041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary tocomply with changes in federal law or regulations applicable to permits; §§382

.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382

.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382

.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382 .0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director ; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5 .122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5 .355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement . The rules are readopted underArticle IX, §167, General Appropriations Act, 75th Legislature, 1997. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filedwith the Office of the Secretary of Stateon June 18, 1998. TRD-9809787 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 Forfurther information, please call : (512) 239-1966 Division 2. Compliance History 30TAC§§116

.120-116 .126 STATUTORY AUTHORITY The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAtosafeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382 .011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382

.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary tocomply with changes in federal lawor regulations applicable to permits; §§382

.0511-382

.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facili

### 23 TexReg 6990 July 3, 1998 Texas Registerties; §382 .052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent toobtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission tocharge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. §116 .121 . Exemptions. The compliance history is not required if the total increased actual emissions of any specific air contaminant (e .g., benzene, arsenic, etc.) at the site will be accompanied by greater than a 1 .1 to 1 reduction of the same specific air contaminant at the site. §116 .122. Contents of Compliance History. (a) The compliance history shall include all of the following compliance events and associated information involving the facility that is the subject of the permit application:

(1) for Texas facilities: (A) criminal convictions known to the commission and civil orders,judgments, and decrees identified by stating:

(i) the style of the case; (ii) the tribunal issuing the conviction orjudgment ; (iii) the docket number and the date of action; and (iv) the general nature of the alleged violation; (B) administrative enforcement orders identified by stating:

and (i) the name or style of action;

(ii) the agency issuing the order; (iii) the docket number and the date of the order; (iv) the general nature of the alleged violation; (C) compliance proceedings identified by stating: (i) the name or style of action; (ii) the general nature of the alleged violation; (2) for United States facilities outside Texas: (A) criminal convictions and civil judgments identified by stating: (i) the style of the case;

(ii) the tribunal issuing the conviction orjudgment; (iii) the docket number and date of action; and (iv) the general nature of the alleged violation; (B) administrative enforcement orders identified by stating: (i) the name or style of action;

(ii) the agency issuing the order; (iii) the docket number and the date of the order; and (iv) the general nature of the alleged violation;

(C) for notices of violation issued by the EPA: (i) the name of the action; (ii) the EPA identification number and date of notice; and (iii) the general nature of the alleged violation. (b) Violations of fugitive emission monitoring and recordkeeping requirements imposed either by §101 .20(1) and (2) of this title (relating to Compliance with Environmental Protection Agency Standards), or state implementation plan requirements applicable to major sources in nonattainment areas shall not be included in the compliance history where:

(1) the violations occurred after the effective date of this rule, and have been the subject of a commission administrative enforcement action, and the commission classified the violations as not being subject to compliance history review ; or (2) theviolations occurred during the fiveyears preceding the effective date of this rule and have been the subject of a commission administrative enforcement action in which:

(A) the commission did not classify the violations as either major seriousness or major impact for the purpose of administrative review

; and (B) the commission assessed a total administrative penalty of less than $20,000for the violations. (c) The commission may request an analysis of the significance of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application. The commission request shall list specific compliance events requiring such an analysis. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filed withthe Office of the Secretary of State on June 18, 1998. TRD-9809788 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 

### ADOPTEDRULES July 3, 1998 23 TexReg 6991Proposal publication date: March 20, 1998

Forfurther information, please call : (512) 239-1966 Division 3. Public Notification and Comment Procedures 30TAC§§116.130-116 .134, 116

.136, 116.137 STATUTORY AUTHORITY . The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAto safeguard theair of the state; §382.003, which provides definitions of terms used throughout the TCAA

; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA

; §382.021 and §382 .022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification ; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382

.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission tocharge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal ofdistrict courtjudgment; and §§7.001-7.358, whichprovide for enforcement. The rulesare readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. §116 .133. Sign Posting Requirements. (a) At the applicant's expense, a sign or signs shall be placed at the site of the proposed facility declaring the filing of an application for a permit and stating the manner in which the commission may be contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements:

(1) -(4) (No change.) (5) signs shall include thewords "Texas Natural Resource Conservation Commission," and the address of the appropriate commission regional office in no less than one-inch boldface capital lettering and 3/4-inch boldface lower case lettering; and

(6) signs shall include the phone number of the appropriate commission office in no less than two-inch boldface numbers. (b) (No change.) (c) Each sign placed at the site must be located within ten feet of each (every) property line paralleling a street or other public thoroughfare. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare. The commission may approve variations from these requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public. (d) The commission may approve variations from the requirements of subsection (c) of this section if the applicant has demonstrated that it is not practical to comply with the specific requirements of subsection (c) of this section and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval fromthe commission under this subsection must be received before posting signs for purposes of satisfying the requirements of this section. (e) (No change.) (f) Alternate language sign posting. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education programas required by the Education Code, Chapter 29, Subchapter B, and 19 TAC §89.1205(a) or if either school has waived out of such a required bilingual education program under the provisions of 19 TAC §89 .1205(g). Schools not governed by the provisions of 19 TAC §89.1205(a) shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements.

(1) The applicant shall post an additional sign in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC §89.1205(a) under 19 TAC §89 .1205(g), the alternate language signs shall be published in the alternate languages inwhich the bilingual education program would have been taught had the school not waived out of the bilingual education program . (2) -(4) (No change.) (g) Exemption fromalternate language sign posting. Elementary or middle schools that offer English as a second language under 19TAC§89.1205(e), and are not otherwise affected by 19TAC §89.1205(a), will not trigger the requirements of subsection (f) of this section. 

### 23 TexReg 6992 July 3, 1998 Texas Register§116 .137. Notification ofFinal Action by the Commission. (a)-(b) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority

. Filed withthe Officeof the Secretary of StateonJune 18, 1998. TRD-9809789 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Division 4. Permit Fees 30TAC§§116.140, 116.141, 116 .143 STATUTORY AUTHORITY . The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAtosafeguard the air of thestate; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382 .0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382 .057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382 .061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5 .116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted underArticle IX, §167, General Appropriations Act, 75th Legislature, 1997 . §116 .141. Determination of Fees. (a) (No change.) (b) The following fee schedule shall be used by a permit applicant to determine the fee to be remitted with a permit application.

(1) If the estimated capital cost of the project is less than $300,000 or if the project consists of newfacilities controlled and operated directly by the federal government and the federal regulations for Prevention of Significant Deterioration (PSD) Review do not apply, the fee is $450 . The provisions of subsections (c) and (d) of this section donot apply to a project consisting of new facilities controlled and operated directly by the federal government.

(2) (No change.) (c) If the estimated capital cost of the project is less than $50 million, the permit applicant shall include a certification that the estimated capital cost of the project is correct. Certification of the estimated capital cost of the project may be spot-checked and evaluated for reasonableness during permit processing. The reasonableness of project capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed as follows.

(1) Direct costs are as follows: (A) process and control equipment not previously owned by the applicant and not currently authorized under this chapter; (B)-(G) (No change.)

(2) (No change.) (d)-(e) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filedwith the Office of the Secretaryof State on June 18, 1998. TRD-9809790 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Division 6. Prevention of Significant Deterioration Review 

### ADOPTEDRULES July 3, 1998 23 TexReg 699330 TAC §116.160, §116 .161 STATUTORY AUTHORITY . The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAtosafeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382 .040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary tocomply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382

.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent toobtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382 .058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission tocharge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director ; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filed with the Office of the Secretary of StateonJune 18, 1998. TRD-9809791 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Division 7. Emission Reductions: Offsets 30TAC§116.170, §116.174 STATUTORY AUTHORITY . The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA tosafeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382 .053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent toobtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382 .058, which provides limitations on exemptions for construction of certain concrete plants; §382 .0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of ap

### 23 TexReg 6994 July 3, 1998 Texas Registerplications; and recess of hearings; §5.121 and §5.122, which

provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district court judgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filedwith the Office of the Secretary of State onJune 18, 1998. TRD-9809792 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Subchapter C

. Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources 30TAC§§116.180-116 .183 STATUTORY AUTHORITY The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA tosafeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA

; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382 .051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382 .053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382 .0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382 .0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382 .062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state ; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement. The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. §116.180 . Applicability. (a) The provisions of this subchapter implement FCAA, §112(g), Modifications, and 40 Code of Federal Regulations Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology, as amended December 27, 1996. Affected sources (as defined in §116

.15(1) of this title (relating to Section 112(g) Definitions)) subject to this subchapter are those sources for which EPA has not promulgated a MACT standard under 40 CFR Part 63. For purposes of this subchapter:

(1) "Construct a major source" means the following: (A) to fabricate, erect, or install at any greenfield site a stationary source or group of stationary sources which is located within a contiguous area and under common control and which emits or has the potential to emit ten tons per year of any hazardous air pollutant (HAP) or 25 tons per year of any combination of HAPs;

(B) to fabricate, erect, or install at any developed site a newprocess or production unit which in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAPs, unless the process or production unit satisfies clauses (i)-(vi) of this subparagraph:

(i) all HAPs emitted by the process or production unit that would otherwise be controlled under the requirements ofthis subchapter will be controlled by emission control equipment which was previously installed at the same site as the process or production unit; HAP emissions:(ii) either of the following regarding control of

(1) the executive director has determined within a period of five years prior to the fabrication, erection, or installation of the process or production unit that the existing emission control equipment represented best available control technology (BACT), lowest achievable emission rate (LAER) under Title 40 Code of Federal Regulations (CFR) Part 51 or 52, toxics-best available control technology (T-BACT), or maximumachievable control technology (MACT) based on state air toxic rules for the category of pollutants 

### ADOPTEDRULES July 3, 1998 23 TexReg 6995which includes those HAPs to be emitted by the process or production

unit; or (11) the executive director determines that the control of HAP emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other wellcontrolled similar sources (i .e., equivalent to the level of control that would be provided by a current BACT, LAER, T-BACT, or state air toxic rule MACT determination) ;

(iii) the executive director determines that the percent control efficiency for emissions of HAP fromall sources to be controlled by the existing control equipment will be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion of the newprocess or production unit;

(iv) the executive director has provided notice and an opportunity for public comment concerning its determination that criteria in clauses (i)-(iii) of this subparagraph apply and concerning the continued adequacy of any prior LAER, BACT, T-BACT, or state air toxic rule MACT determination;

(v) if any commenter has asserted that a prior LAER, BACT T-BACT, or state air toxic rule MACTdetermination is no longer adequate, the executive director has determined that the level of control required by that prior determination remains adequate ; and (vi) any emission limitations, work practice requirements, or other terms and conditions upon which the determinations in clauses (i)-(v) of this subparagraph are predicated will be construed by the executive director as applicable requirements under FCAA, §504(a), and either have been incorporated into any existing permit issued under Chapter 122 of this title (relating to Federal Operating Permits) for the affected source (as defined in §116.15(l) of this title (relating to Section 112(g) Definitions)) or will be incorporated into such permit upon issuance.

(2) "Reconstruct a major source" means the replacement of components at an existing process or production unit that in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAP, whenever:

(A) the fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable process or production unit; and

(B) it is technically and economically feasible for the reconstructed major source to meet the applicable MACT emission limitation for newsources established under this subchapter. (b) The requirements of this subchapter apply to an owner or operator of an affected source (as defined in §116.15(l) of this title (relating to Section 112(g) Definitions)) who constructs or reconstructs on or after June 29, 1998, the effective date of §112(g)(2)(B), unless the affected source in question has been specifically regulated or exempted fromregulation under a standard issued under the FCAA, §112(d), (h), or (j) and incorporated in another subpart of Part 63, or the owner or operator of such affected source has received all necessary air quality permits for such construction or reconstruction project before the effective date of §112(g)(2)(B) . Administratively complete applications submitted prior to June 29, 1998, are not subject to the requirements of this subchapter. (c) Affected sources as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to the requirements of this subchapter are not eligible to use a standard permit under Subchapter F of this chapter (relating to Standard Permits) unless the terms and conditions of the specific standard permit meet the requirements of this subchapter. §116 .182 . Application. Consistent with the requirements of 40 Code of Federal Regulations, §63.43 (concerning maximum achievable control technology determinations for constructed and reconstructed major sources), the owner or operator of a proposed affected source (as defined in §116 .15(l) of this title (relating to Section 112(g) Definitions)) shall submit a permit application as described in §116.110 of this title (relating to Applicability) . §116 .183. Public Notice Requirements. Proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with the public notice requirements contained in §116.130 of this title (relating to Applicability) . This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filedwith the Office of the Secretary of State on June 18, 1998. TRD-9809793 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 Forfurther information, please call : (512) 239-1966 Subchapter D

. Permit Renewals 30 TAC §§116

.310-116 .314 STATUTORY AUTHORITY . The repeals are adopted under the Texas Health and Safety Code, theTexas CleanAir Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAA to safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382 .041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new

facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance 

### 23 TexReg 6996 July 3, 1998 Texas Registerlimitations for lead smelting plants; §382.0541 and §382.0542,

which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5 .351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filed with the Office of theSecretary of StateonJune 18, 1998. TRD-9809794 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 STATUTORY AUTHORITY The newsections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAtosafeguard the air of the state; §382 .003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5 .121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director ; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5 .355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. §116 .311 . Permit Renewal Application. (a) In order to be granted a permit renewal, the permit holder shall submit information in support of the application which demonstrates that:

(1) the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments, and any previously granted renewal, unless otherwise authorized for a qualified facility;

(2) the facility meets the requirements of any applicable New Source Performance Standards as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA under the authority of the FCAA, §111, as amended;

(3) the facility meets the requirements of any applicable emission standard for hazardous air pollutants as listed under Title 40 CFR Part 61, promulgated by EPA under the authority of the FCAA, §112, as amended; and

(4) the facility meets the requirements of any applicable maximumachievable control technology standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, § 112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR 63)) . 

### ADOPTEDRULES July 3, 1998 23 TexReg 6997(5) the facility meets the requirements of Subchapter C

of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40 CFR Part 63)) . (b) In addition to the requirements in subsection (a) of this section, if the commission determines it necessary to avoid a condition of air pollution or to ensure compliance with otherwise applicable federal or state air quality control requirements, then:

(1) the applicant may be required to submit additional information regarding the emissions from the facility and their impacts on the surrounding area; and

(2) the commission shall impose as a condition for renewal only those requirements the executive director determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. (c) A compliance history reviewmust be conducted in accordance with §§116.121-116.126of this title (relating toCompliance History). The renewal application must demonstrate that the facility is or has been in substantial compliance with the provisions of the TCAA and the terms of the existing permit . Failure to demonstrate substantial compliance shall result in the renewal not being granted. If it is found that violations in the compliance history constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including failure to make a timely and substantial attempt to correct the violations, the renewal shall be denied. If a contested case hearing has not been called, the executive director must notify the applicant of the intent to recommend denial and state the basis of the findings. The applicant will be given an opportunity to respond to the notice. If the findings reflect a pattern of disregard for applicable regulations which do not warrant denial, additional conditions may be placed in the permit . (d) An application for renewal must be submitted within 90 days prior to expiration of the permit or the permit will expire. The executive director may extend the time period for submitting an application. (e) Any permit issued: (1) before December 1, 1991, is subject for review 15 years after the date of issuance;

(2) on or after December 1, 1991, is subject for review every ten years after the date of issuance.

(3) at nonfederal sources on or after December 1, 1991, may, for cause, contain a provision requiring renewal between five and ten years. §116.312. Public Notification and Comment Procedures. (a) The executive director shall mail a written notice to the permit holder within 30 days after receipt of a complete application. The notice will confirmreceipt of the application and shall require the applicant to provide public notice of the application for permit renewal in accordance with Subchapter B of this chapter (relating to NewSource ReviewPermits). (b) The sign heading required under §116 .133(a)(2) of this title (relating to Sign Posting Requirements) shall read "PROPOSED RENEWAL OF AIR QUALITY PERMIT." This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filed with the Office of the Secretary of State onJune 18, 1998. TRD-9809795 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Subchapter F Standard Permits 30TAC§§116

.610, 116.611, 116

.614, 116

.615, 116

.617, 116.620, 116.621 STATUTORY AUTHORITY . The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of the TCAAto safeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382

.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382 .032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource reviewauthorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of newfacilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382 .0542, which provide for administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent toobtain a permit or permit review and provides for permit hearings for permits; §382.057, which provides authority for exemptions from permitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382 .0591, which provides for denial of applications for permits if assistance has been provided by former or current employees; §382.061, which allows the commission to delegate certain powers to the executive director; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which provides the commission with the authority to 

### 23TexReg 6998 July 3, 1998 Texas Registerestablish and approve commission policy; §5.115 and §5.116,

which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5.122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted underArticle IX, §167, General Appropriations Act, 75th Legislature, 1997. §116 .610 . Applicability. (a) Under the TCAA, §382.051, a project which meets the requirements for a standard permit listed in this subchapter is hereby entitled to the standard permit, provided the following conditions listed in this section are met. For the purposes of this subchapter, project means the construction or modification of a facility or a group of facilities submitted under the same registration claim . (1)-(2) (No change.) (3) the proposed project must complywith the applicable provisions of the FCAA, §111 (concerning New Source Performance Standards) as listed under Title 40Code of Federal Regulations (CFR) Part 60, promulgated by the EPA;

(4) the proposed project must comply with the applicable provisions of FCAA, § 112 (concerning Hazardous Air Pollutants) as listed under 40 CFR 61, promulgated by the EPA;

(5) the proposed project must comply with the applicable maximum achievable control technology standards as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, § 112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR 63)).

(6) the owner or operator of the facility shall register the proposed project in accordance with § 116.611 of this title (relating to Registration Requirements). (b)-(c) (No change.) (d) Any project involving a proposed affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) . Affected sources subject to Subchapter C of this chapter may use a standard permit under this subchapter only if the terms and conditions of the specific standard permit meet the requirements of Subchapter Cof this chapter. §116 .620 . Installation and/or Modification ofOil and Gas Facilities. (a) Emission specifications. (1)-(3) (No change.) (4) Newor modified internal combustion reciprocating engines or gas turbines permitted under this standard permit shall satisfy all of the requirements of §106.512 of this title (relating to Stationary Engines and Turbines (Previously SE 6)), except that registration using the Form PI-7 or PI-8 shall not be required. Emissions fromengines or turbines shall be limited to the amounts found in §106.4(a)(1) of this title (relating to Requirements for Exemption fromPermitting) .

(5)-(12) (No change.) (13) Appropriate documentation shall be submitted to demonstrate that compliance with the Prevention of Significant Deterioration (PSD) and nonattainment new source reviewprovisions of the FCAA, Parts C and D, and regulations promulgated thereunder, and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) are being met. The oil and gas facility shall be required to meet the requirements of Subchapter B of this chapter (relating to NewSource Review Permits) instead of this subchapter if a PSDor nonattainment permit or a reviewunder Subchapter C of this chapter is required.

(14) Documentation shall be submitted to demonstrate compliance with applicable New Source Performance Standards (NSPS, 40 CFR Part 60) .

(15) Documentation shall be submitted to demonstrate compliance with applicable National Emission Standards for Hazardous Air Pollution (NESHAP, 40 CFR Part 61) .

(16) Documentation shall be submitted to demonstrate compliance with applicable maximumachievable control technology standards as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed in Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR Part 63)) .

(17) Newand increased emissions shall not cause or contribute to a violation of any National Ambient Air Quality Standard or regulation property line standards as specified in Chapters 111, 112, and 113 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter; Control of Air Pollution from Sulfur Compounds; and Control of Air Pollution fromToxic Materials). Engineering judgment and/or computerized air dispersion modeling may be used in this demonstration. To show compliance with §116.610(a)(1) of this title (relating to Applicability) for H'S emissions fromprocess vents, ten milligrams per cubic meter shall be used as the "L" value instead of the value represented by §116.610(a)(1) of this title.

(18) Fuel for all combustion units and flare pilots shall be sweet natural gas or liquid petroleumgas, fuel gas containing no more than ten grains of total sulfur per 100 dry standard cubic feet (dscf), or field gas. If field gas contains more than 1 .5 grains of H,S or 30 grains total sulfur compounds per 100 dscf, the operator shall maintain records, including at least quarterly measurements of fuel H=S and total sulfur content, which demonstrate that the annual SO, emissions fromthe facility do not exceed the limitations listed in the standard permit registration. If a flare is the only combustion unit on a property, the operator shall not be required to maintain such records on flare pilot gas. (b) Control requirements. (1) Floating roofs or equivalent controls shall be required on all newor modified storage tanks, other than pressurized tanks which meet §106.476 of this title (relating to Pressurized Tanks or Tanks Vented to Control (Previously SE 83)), unless the tank is less than 25,000 gallons in nominal size or the vapor pressure of the compound to be stored in the tank is less than 0 .5 pounds per square inch absolute (psia) at maximumshort-termstorage temperature.

(A)-(E) (No change.) (2) (No change.) (c) Inspection requirements. 

### ADOPTEDRULES July 3, 1998 23 TexReg 6999(1) Owners or operators who are subject to subsection

(a)(7) or (8) of this section shall comply with the following requirements.(A) No component shall be allowed to have a VOC leak for more than 15 days after the leak is detected to exceed a VOC concentration greater than 10,000parts per million by volume (ppmv) above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound for all components. The VOCfugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0 .5 psia at 100 degrees Fahrenheit are exempt from

this requirement . If VOCfugitive emission components are in service where the operating pressure is at least 0.725 pounds per square inch (psi) (five kilopascals (Kpa)) belowambient pressure, then these components are also exempt from this requirement as long as the equipment is identified in a list that is made available upon request by the agency representatives, the EPA, or any other air pollution agency havingjurisdiction. All piping and valves two inches nominal size and smaller, unless subject to federal NSPS requiring a fugitive VOCemissions leak detection and repair programor Chapter 115 of this title (relating to Control of Air Pollution fromVolatile Organic Compounds), are also exempt fromthis requirement.

(B)-(I) (No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality, New Source ReviewPermits Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sumof valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that has been developed to justify the following modifications in the monitoring schedule.

(i)-(ii) (No change.) (2) Owners or operators who are subject to subsection (a)(9) or (10) of this section shall comply with the following requirements.

(A)-(I) ( No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality, New Source ReviewPermits Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sumof valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that have been developed to justify the following modifications in the monitoring schedule.

(i)-(ii) (No change.) (K) (No change.) (3) (No change.) (d) Approved test methods. (1)-(2) (No change.) (3) Proper operation of any condenser used as a VOC emissions control device to comply with subsection (a)(5) of this section shall be tested to demonstrate compliance with the minimum control efficiency. Sampling shall occur within 60 days after startup of new or modified facilities. The permittee shall contact the Engineering Services Section, Office of Compliance and Enforcement 45 days prior to sampling for approval of sampling protocol . The appropriate regional office in the region where the source is located shall also be contacted 45 days prior to sampling to provide them the opportunity to viewthe sampling. Neither the regional office nor the Engineering Services Section, Office of Compliance and Enforcement personnel are required to viewthe testing. Sampling reports which comply with the provisions of the "TNRCC Sampling Procedures Manual," Chapter 14 ("Contents of Sampling Reports," dated January 1983 and revised July 1985), shall be distributed to the appropriate regional office, any local programs, and the Engineering Services Section, Office of Compliance and Enforcement . (e) Monitoring and recordkeeping requirements. (1) If the operator elects to install and maintain ambient H=S property line monitors to comply with subsection (a)(11) of this section, the monitors shall be approved by the Engineering Services Section, Office of Compliance and Enforcement office in Austin, and shall be capable of detecting and alarming at HzS concentrations of ten ppmv. Operations personnel shall perform an initial on-site inspection of the facility within 24 hours of initial alarm and take corrective actions as listed in subsection (c)(3)(A)-(C) of this section within eight hours of detection of a leak.

(2) The results of the VOC leak detection and repair requirements shall be made available to the executive director or any air pollution control agency having jurisdiction upon request . Records, for all components, shall include:

(A)-(E) (No change.) (3)-(8) (No change.) §116 .621 . Municipal Solid Waste Landfills. A person may claima standard permit for the construction or modification to a municipal solid waste landfill (MSWLF) or municipal solid waste facility (MSW facility) as defined in §101 .1 of this title (relating to Definitions), including, but not limited to, Type I, Type 1-AE, Type II, Type III, Type IV, Type IV-AE, Type VI, and Type IX sites as defined in §330 .41 of this title (relating to Types of Municipal Solid Waste Sites) .

(1) (No change.) (2) Separate permit authorization under Subchapter B of this chapter (relating to NewSource ReviewPermits) must be obtained for the following:

(A)-(E) (No change.) (F) any project which constitutes a new major source, or major modification under the newsource reviewrequirements of the FCAA, Part C (Prevention of Significant Deterioration review), Part D (nonattainment review) and regulations promulgated thereunder, or is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g) 40CFR Part 63)) shall be subject tothe requirements of §116.110 of this title (relating to Applicability) rather than this subchapter.

(3) (No change.) (4) The permit holder shall complywith the air emissions standards as specified in 40 CFR Part 60, Subpart WWW, with the following additions and changes.

(A) (No change.) 

### 23 TexReg 7000 July 3, 1998 Texas Register(B) The GCCS shall be designed to control nonmethane organic compounds (NMOC) gas emissions in one or more of the following ways by routing the total collected gas to:

(i) an open flare with a minimum height of 30 feet and which satisfies all of the requirements of Chapter 106, Subchapter Aof this title (relating to General Requirements) and §106.492 of this title (relating to Flares (Previously SE 80)), except that registration using FormPI-7 or PI-8 shall not be required;

(ii)-(iii) (Nochange.) (iv) gas or liquid fuel-fired stationary internal combustion reciprocating engines or gas turbines that satisfy all of the requirements of Chapter 106, Subchapter A of this title and §106.512 of this title (relating to Stationary Engines and Turbines (Previously SE 6)), except that registration using FormPI-7 or PI-8 shall not be required; or (v) boilers, heaters, or other combustion units, but not including stationary internal combustion engines or turbines, that satisfy all of the requirements of Chapter 106, Subchapter A of this title and §106.183 of this title (relating to Boilers, Heaters, or Other Combustion Devices (Previously SE 7)) .

(C) The active GCCS may be capped or removed only if, in addition to the requirements listed in 40 CFR, §60.752(b)(2)(v), the MSWLF is permanently closed under §§330 .250-330.256 of this title (relating to Closure and Post-closure) .

(5) (No change.) (6) High volume air sampling for net ground level concentrations of total particulate matter shall be performed upon request of the executive director or a designated representative. Each test shall consist of at least one upwind and one downwind sample taken simultaneously. The tests shall be performed during normal operations. A monitoring plan for high volume sampling shall be developed in accordance with the Office of Air Quality Management Plan, Appendix I (EPA Requirements for Quality Assurance Project Plans, dated February 1995) and the "TNRCC Sampling Procedures Manual," Chapter 11 (dated January 1983 and revised July 1985), and shall require approval by the executive director or a designated representative prior to sampling. The executive director or a designated representative shall be afforded the opportunity to observe all such sampling equipment, operations, and records upon request.

(7) GCCS components (compressor seals, pipeline valves, pressure relief valves in gaseous service, flanges, and pump seals) at an MSWLF or MSW facility, where the total of all estimated uncontrolled fugitive emissions from all components is greater than ten tons per year, shall be inspected and maintained under the requirements of § 116.620(c)(1)(A)-(J) of this title (relating to Installation and/or Modification of Oil and Gas Facilities), with the following changes and additions.

(A)-(E) (No change.) (8) The owner or operator of each MSWLF unit shall maintain complete and up-to-date records sufficient to readily determine continuous compliance with the requirements of this section for the previous five years of operation. All the records shall be maintained in an operating record in accordance with §330 .113(b)(11) of this title (relating to Recordkeeping Requirements). The records shall be available for reviewupon request by representatives of the commission or any local air pollution agency havingjurisdiction. The following recordkeeping requirements shall apply, in addition to those specified in 40 CFR 60, Subpart WWW . (A) Permit holders who are subject to the exemptions of Chapter 106 of this title (relating to Exemptions fromPermitting), as specified in paragraph (4) of this section shall maintain any records specified in the exemption.

(B) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority . Filedwith the Office of the Secretary of State on June 18, 1998. TRD-9809796 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 Forfurther information, please call : (512) 239-1966 

### Subchapter G

. Flexible Permits 30 TAC§§116.710, 116 .711, 116.714, 116.715, 116 .721, 116.730, 116

.740, 116

.750 STATUTORY AUTHORITY . The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, §382.002, which provides the policy of the State of Texas and of theTCAA tosafeguard the air of the state; §382.003, which provides definitions of terms used throughout the TCAA; §382.011, which provides the commission with the powers necessary to control the quality of the state's air; §§382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures; and investigations; §§382.030- 382.032, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue permits and adopt rules as necessary to comply with changes in federal lawor regulations applicable to permits; §§382.0511-382.0518, which provide authority for the commission to consolidate newsource review authorizations and make changes to permits; determine whether a proposed change is a modification; establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; to determine administrative completeness of applications; and to require persons to obtain permits for construction of new

facilities or modifications to existing facilities; §382.052 and §382.053, which provide for consideration of impacts and nuisance conditions near schools; and distance limitations for lead smelting plants; §382.0541 and §382.0542, which providefor administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; §382.055, which provides for renewals of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit reviewand provides for permit hearings for permits; §382.057, which provides authority for exemptions frompermitting as well as standard permits; §382.058, which provides limitations on exemptions for construction of certain concrete plants; §382.0591, which provides for denial of ap

### ADOPTEDRULES July 3, 1998 23 TexReg 7001plications for permits if assistance has been provided by former

or current employees; §382.061, which allows the commission to delegate certain powers to the executive director ; §382.062, which allows the commission to charge fees for certain actions; §382.085, which prohibits unauthorized emissions; and under Texas Water Code, including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; §5.105, which Provides the commission with the authority to establish and approve commission policy; §5.115 and §5.116, which provide for who may be an affected person; notice of applications; and recess of hearings; §5.121 and §5 .122, which provide for public information; and delegation of uncontested matters to the executive director; §5.234, which provides for applications and other documents; §5.351, which provides for judicial reviewof commission acts; §5.355, which provides for appeal of district courtjudgment ; and §§7.001-7.358, which provide for enforcement . The rules are readopted under Article IX, §167, General Appropriations Act, 75th Legislature, 1997. §116 .711 . Flexible Permit Application. Any application for a newflexible permit or flexible permit amendment must include a completed FormPI-1 General Application. The Form PI-1 must be signed by an authorized representative of the applicant. The FormPI-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 commission which demonstrates that all of the following are met . (1) Protection of public health and welfare. The emissions fromthe proposed facility, group of facilities, or account as determined under §116.716 of this title (relating to Emission Caps and Individual Emission Limitations), will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people. 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 commission shall consider any possible adverse shorttermor long-termside effects that an air contaminant or nuisance odor fromthe 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 measuring the emission of air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual ."

(3) 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 ofreducing 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 and proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter Cof this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), the use of BACT shall be demonstrated for the individual facility or affected source.

(4) NewSource Performance Standards (NSPS) . The emissions fromeach affected facility as defined in 40 Code of Federal Regulations (CFR), Part 60will meet at least the requirements of any applicable NSPS as listed under Title 40 CF'RPart 60, promulgated by the EPA under authority granted under the FCAA, §111, as amended.

(5) National Emission Standards for Hazardous Air Pollutants (NESHAPS) . The emissions from each facility as defined in 40 CFR Part 61 will meet at least the requirements of any applicable NESHAPS, as listed under 40 CFR Part 61, promulgated by EPA under authority granted under the FCAA, § 112, as amended.

(6) NESHAPS for source categories. The emissions fromeach affected facility shall meet at least the requirements of any applicable MACT standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C ofthis title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40CFR 63)) .

(7) 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 proposedfacility, 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.

(8) Nonattainment review . If the proposedfacility, group offacilities, or account is located in a nonattainment area, each facility shall complywith all applicable requirements under the undesignated head concerning nonattainment reviewin Subchapter B of this chapter (relating to NewSource ReviewPermits).

(9) Prevention of Significant Deterioration (PSD) review . If the proposed facility, group of facilities, or account is located in an attainment area, eachfacility shall comply with all applicable requirements under the undesignated head concerning PSD in Subchapter B of this chapter.

(10) Air dispersion modeling or ambient monitoring. Computerized air dispersion modeling and/or ambient monitoring may be required by the commission's New Source ReviewPermits Division to determine the air quality impacts from the facility, group of facilities, or account .

(11) Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the proposed source is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)), it shall comply with all applicable requirements under Subchapter Cof this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) .

(12) Application content. In addition to any other requirements of this chapter, the applicant shall :

(A) identify each air contaminant for which an emission cap is desired; permit ; (B) identify eachfacility to be included in the flexible



### 23 TexReg 7002 July 3, 1998 Texas Register(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;

(D) for each emission cap, identify all associated EPNs and provide emission rate calculations based on the expected maximumcapacity and the proposed control technology;

(E) for each individual emission limitation, identify the EPNandprovideemissionrate calculations based on theexpected maximum

capacity and the proposed control technology. (13) 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 maximumproduction capacity. §116 .740 . Public Notice and Comment. (a) Any person who applies for a flexible permit or an amendment to a flexible permit shall comply with the provisions in §§116 .130-116.134, 116.136, 116.137 of this title (relating to Public Notification and Comment Procedures) . (b) Any person who applies for an amendment to a flexible permit regarding an affected source (as defined in § 116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) shall comply with the provisions in §§116.130-116

.134, 116.136, and 116 .137 of this title. This agency hereby certifies that the adoption has been reviewed by legal counsel andfound to be a valid exercise of the agency's legal authority . Filed with theOffice of the Secretary of State onJune 18, 1998 . TRD-9809797 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 8, 1998 Proposal publication date: March 20, 1998 For further information, please call : (512) 239-1966 Chapter 330

. Municipal Solid Waste The Texas Natural Resource Conservation Commission (commission) adopts amendments to §330.601, relating to Purpose and Applicability

; the repeal of §§330

.801-330.818, 330

.820- 330 .836, 330

.838, and 330

.840-330.889

; and new

§§330 .801- 330 .821 in Subchapter R, concerning Management of Used or ScrapTires

. The amendmenjto §330.601 and new §§330 .802- 330 .820 are adopted with changes to the proposed text published in theJanuary 2, 1998, issue of the Texas Register (23 TexReg 64) . New§330 .801 and §330.821 and the repealed sections are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES The purposes of the adopted amendments, repeals and new sections are to address the sunset provisions of Texas Health and Safety Code Chapter 361, Subchapter P, address the requirements of existing statutory language which does not contain a sunset provision, and streamline certain requirements of the previous rules. In most areas of the adopted new sections, rule language fromthe previously existing sections has been streamlined, clarified, and/or reformatted. In other areas, newrequirements are adopted. Chapter 361, Subchapter P of the Texas Health and Safety Code contained a provision for the Waste Tire Recycling Fund (WTRF) reimbursement program to sunset December 31, 1997. Subchapter P established the WTRF and the reimbursement program for processors to collect, shred, and recycle used or scrap tires. Under the sunset provisions, all references to the reimbursement program, including end-use requirements, and the WTRF have been deleted. The adopted rules no longer contain the 90-day limit for generators to remove whole tires from storage. Generators who store more than 500 used or scrap tires are still required to register with the commission. Other adopted changes concerning generator requirements include removal of the requirement to accept used tires, removal of the restriction fromaccepting money for tires, removal of the requirement to remove tires from rims, removal of the differentiation between large and regular volume generators, and removal of the restriction that generators can only store their own tires. Fortransporters, the registration fee is removed, the exemption fromregistration is expanded to include generators hauling their own tires and to include governmental transport vehicles, and the prohibition from charging a fee to haul tires is deleted. For storage facilities, an exemption fromregistration as a storage site is adopted for generators who process and/or store 500 or fewer used or scrap tires on the ground or 2,000 or fewer in enclosed containers; the registration and design requirements for a scrap tire storage site have been reorganized but are essentially unchanged from the current rules; requirements are added for land reclamation projects using tires (LRPUT) ; the training requirements for employees transporting or handling tires and for transporters who deliver tires to the storage facility have been removed; and notice to local governments is required. Concerning scrap tire facilities, the adoption includes processing, recycling, and energy recovery facilities under this designation; requires a scrap tire storage site registration for certain processors and for facilities storing more than a 30-day supply of tires; reduces the frequency of reporting to an annual report; and removes the $500 registration fee. Concerning the Special Authorization Priority Enforcement List (SAPEL) and the Priority Enforcement List (PEL) program, the adoption has removed the 2,500,000 tire "trigger" for issuing contracts to procure cleanups for the removal of tires from PEL sites, and has removed the previous rule language concerning assignment of PEL sites on an individual basis to waste tire facilities, in favor of a competitively-bid contract process. Concerning closure costs estimates and financial assurance, the per-tire formula is deleted, the written estimate of closure costs is to be calculated based on actual estimates for third-party closure, and financial assurance sections are being adopted under Chapter 37 of this title (relating to Financial Assurance) . Also due to the sunset provisions of Texas Health and Safety Code Chapter 361, Subchapter P, the following previously existing sections are repealed: §330 .804, concerning the use of tire shreds in landfills; §§330 .820-330.829, concerning WTRF allocation method, model, notification, fiscal audits, overpayment fromthe WTRF, and WTRF programreviews; §330.838, concerning requirements for a Type Vill-W.T waste tire storage facility; §330.842, concerning waste tire facility classification and operational requirements such as shredding; §330 .848, concerning eligibility for the WTRF program ; §330.850, concerning requirements for waste tire recycling facilities; §330.853 

### ADOPTEDRULES July 3, 1998 23 TexReg 7003