STATE OF TEXAS 

OFFICE OF THE GOVERNOR 

GEORGE W. BUSH 

GOVERNOR 

July 22, 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 to Texas' State Implementation Plan (SIP) consisting of amendments 

that the Texas Natural Resource Conservation Commission adopted on June 17, 1998 . 

The amendments to Subchapters A through D, F, and G of 30 Texas Administrative Code 

Chapter 116, concern Control of Air Pollution by Permits for New Construction or 

Modification. They implement the requirements of the Federal Clean Air Act and 40 Code of 

Federal Regulations Part 63 concerning Hazardous Air Pollutants, and they make general 

corrections and clarifications to Chapter 116. 

These amendments are being submitted to you as a proposed revision to the SIP. Also 

enclosed is a public hearing certification, a complete record of the public hearing, and the 

accompanying order. I look forward to your expeditious approval of this 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, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing 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 on June 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 which conformed to the requirements of 

40 CFR, §51 .102(d) . I am the 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 of June, 1998 . 

E ug-e nia * 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 paper using soy-based ink 
Texas Natural Resource 

Conservation Commission 

Public Hearing 

April 16, 1998 

30 TAC Chapter 11~, 

NSR Rule Revisions; § 112(g) 

Rule Log Number 98001-116-AI 
INTRODUCTION 

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 New Construction 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-

0576 or Jim Dodds, Air Policy and Regulations Division, (512) 239-0970. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was conducted by the following procedures: 

1 . Publication of the notice of public hearing in the following newspapers on the dates listed : 

Austin American-Statesman ; 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 of the 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 Administration 
Fort 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 

NEWSPAPER CLASSIFIED AD 

Austin American-Statesman 

March 10, 1998 

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20. 1999 py~S90P~A1xA . For Aa!tfei lnta- rne'4n a questtons ooneecryr~ fhy Qroposal Please ecntoct 1Gtcrk ~ of the New Sowce Review , Pemtitf4~ Division. 0"h_e of Air I ~dify. (512) 239~1297 . Peaorn wlttt dsob~3"es who Aave run4ea:bn or 'Other ~ -

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Filed : 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 Program is changing from 100 tons/year to 50 tons/year. The 

nitrogen oxides exemption from control 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 (TNRCC or commission) will conduct a public hearing to receive 

testimony concerning revisions to 30 TAC Chapter 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 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 . 

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, New Source 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 TAC Chapter 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/M 240 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, Room 2210, 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) 

IN ADDITION Mareh 20, 1998 23 TexReg 3109 
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, 

concemin ; Control of Air Pollution by Permits for New Construction 

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 Review 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 should 

contact the agency at (512) 239-4900 . Requests should be made as 

far in advance as possible . 

T RD-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 ; SOAH Docket 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 from date 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 TNRCC has 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 to Water 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 CY98 Title 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 below actual enrollment grade level . 

Participants to be served reside in 11 counties of North Texas: 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- 
2210 of 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, MC 205, 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 the agency 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 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 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. 

EXPLANATION OF PROPOSED RULES. The commission proposes a new §116.15 and a new Subchapter C, §§116.180-

116.183, for the purpose of implementing a program to 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)). 

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 V permit 

program in 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 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 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 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 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 reform purposes 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, 

PROPOSED RULES March 20, 1998 23 TexReg 2953 
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 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 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 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 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. 

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 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 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. 

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 new owner, 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 now refers 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 

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 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 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 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, Pa- ~,- Public Drinking Water Supply. The current 

§116.112(b,i,) 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 2,640 feet of any off-site receptor . The statutory provision 

prohibits the construction of a new commercial hazardous waste 

management facility that would be within 2,640 feet 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 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 

23 TexReg 2954 March 20, 1998 Texas Register 
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 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 40 CFR 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 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 1, 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 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 from permitting are now contained in Chapter 106. 

The commission proposes to amend §116.141(b)(1) to specify 

that any application for new or 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 

problem with 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 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 that it is appropriate 

to allow the 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 minimum new 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 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 EPA promulgating 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 program meets the requirements of that subpart. The commission believes that, with some 

modifications, the existing NSR program can implement the requirements of §112(g) and 40 CFR Part 63, Subpart B. AcPROPOSED RULES March 20, 1998 23 TexReg 2955 
cordingly, the commission believes that the Best Available Control Technology (BACT) determinations made in the NSR program will 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 V permit program in 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 interim program. The remaining sources were 

to apply upon the approval of the full program by the EPA. 

Chapter 122 was recently revised (November 1997) to require 

all sources subject to that program to 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 program well before the expected date required for full 

program approval . Therefore, after June 29, 1998, and after 

the EPA approves the recent revisions to Chapter 122, sources 

that trigger §112(g) review must 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 C will not be able to use a 

Chapter 106 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 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 

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-by-case 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 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 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 CFR 63, §63 .40(c)-(f) . The commission has determined that 

in order to provide a program consistent 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 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 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 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 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 . 

In proposing Chapter 116, Subchapter C, the executive director 

is certifying that the proposed §112(g) program satisfies all 

applicable requirements established by 40 CFR §§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 program pr::-; :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 include the 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 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 . 

SUBCHAPTER F: STANDARD PERMITS. The commission 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 Register 
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 . 

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 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 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 

review under 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 

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. 

The commission also proposes amendments to §116.711(11), 

concerning flexible permit applications, by adding a requirement 

that facilities subject to review for constructed or reconstructed 

major sources of hazardous air pollutants under FCAA, §112(g) 

and 40 CFR 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 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 

allow sources 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 116 for standard exemptions. Section 

116.750(b) is 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 minimum fee. The $450 minimum 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 NSR permit 

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 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 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 of the 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. 

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 conform to 

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 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), and the approval date of a Title V permit program 

in the state, all owners and operators of major sources subject to 

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

be required to install MACT unless specifically exempted . The 

public benefit from the implementation of this program is that the 

commission, and not the EPA, will be the agency responsible 

for the oversight of the new program. 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 new requirements 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 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 law and thus are not new requirements. 

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 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 reform as 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 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 TAG Chapters 501-506), and the commission's rules in 30 TAG 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 116 proposes a new program that implements 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 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 §112(g) program 

requires preconstruction review of major sources of hazardous 

air pollutants . This new program will 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 or 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 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. A public hearing on the proposal. 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 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, TNRCC Office 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 5:00 p.m., April 20, 1998. The commission 

requests that comments on the results of the review of its rules 

be clearly identified separately from comments 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 should contact the 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, Room 245, James Earl Rudder Building, 1019 Brazos 

Street, Austin.) 

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 of the commission . The review of the commission's rules is proposed under 

Article IX, §167, General Appropriations Act, 75th Legislature, 

1997. 

23 TexReg 2958 March 20, 1998 Texas Register 
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 . 

§ 116.10. 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 

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 review of 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 them in 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 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 from a qualified facility within 

the 120-month period prior to the change. This rate cannot exceed 

any applicable federal or state emissions limitation. This definition 

applies only when determining whether there has been a net increase 

in allowable emissions under §116.116(e) of this title (relating to 

Changes to Facilities) . 

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 from Permittingl 

(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 maximum annual emissions rate is the emissions rate at the maximum annual capacity according to the physical 

or operational design of the facility, data from actual operations over 

a period of no more than 12 months that demonstrates the maximum 

annual capacity, or other information that demonstrates the maximum 

annual capacity. Except where a 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 

emissio ns 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 2 959 
issued under the EPA-approved program that is incorporated into the 

SIP and that expressly requires adherence to any permit issued under 

such pro gram. 

(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 from metal and nonmetallic 

contaminants and/or by reducing oxides into elemental lead . Raw materials consist of lead concentrates , lead-bearing ores or lead s crap, 

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) Maximum allowable emissions rate table (MAERT)-

A table included with a preconstruction permit issued under this 

chapter that contains the allowable emission rates established by the 

permit for a facility. 

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 ; _ 

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, from preconstructton 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, pro v id ed 

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 will 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 maximum designed 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 with 

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 New source-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 ambient 

-- 

air quality standard for a pollutant for which a standard exists . The 

EPA will designate the area as nonattainment under the provisions 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 them in 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 law of 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 settleme nt of any 

legal or administrative action brought in a court or administrative 

a gency, addressing : 

u 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 

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 new site . 

New site-A plant property having an operating history 

less than five yea rs 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 meanings, 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 from all sources that are included in a 

flexible_ permit . 

_(2) Expected maximum capacity-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 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 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 . 

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 from acid 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 from a process, stack, storage, or fugitive emissions point: 

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

(E) are a combination of subparagraphs (A)-(D) of 

this paragraph . 

_(3) Electric utility steam generating 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 system for sale shall be considered 

an electric utility s team generating 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 new processes 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 2961 
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-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 Review Permits 

Permit Application 

30 TAC §§116.110-116.112,116 .114-116.118 

(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, Room 245, James Earl Rudder Building, 1019 Brazos 

Street, Austin .) 

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 of the commission . The review of 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 Review Schedule. 

§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 

30 TAC §§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 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 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 . 

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 existin g pe rmit 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 cer tify 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 new owner; 

(_C) an agreement by the new owner 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 new owner 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 Form PI-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 from the 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 from the 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 th e emissions from the 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 from the 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 from the 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 from a proposed new facility 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 . New lead smelting plants shall be 

located at least 3,000 feet from any 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 

3,000 feet 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 2963 
be located in the vicinity of specified public access areas under the 

followin g circumstances . 

No permit shall be issued for a new hazardous 

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 new commercial 

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 wate r 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 m place 

at the time the distance was certified for the original permit . 

No permit shall be issued for a new commercial 

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 ca re 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 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 property 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 from the edge of the 

proposed hazardous waste management unit. 

11¢ 6.114 . Applicafion Review Schedule. 

_(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 respo nse to the 

defic iency 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 

writin g 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 to any deficiency notification issued by the executiv e 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 A permit or permit amendment 

under this chapter is automatically void if the permit hold er 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 Register 
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 program regional 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 allow representative 

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 re quirements of the permit . 

(F) Recordkeeping. The permit holder shall : 

(i) maintain a copy of the permit along with 

information and data su fficiAn t 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 from the commission or any air pollution control program 

having ju risdiction ; 

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 . 

Maximum allowable emission rates . The total 

emissions of air contaminants from any of the sources of emissions 

must not exceed the values stated on the table attached to the permit 

entitled_ "Emission Sources-Maximum Allowable Emission Rates ." 

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 rule s . 

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 

c hapter (relatin g to Standard Permits) ; or 

(H) an exemption under Chapter 106 of this title 

(relating to Exemptions from Permitting). 

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 significan t 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 from any 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 Application . 

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 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 . 

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 in terfere 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) of 

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 from other 

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 s ubparagraph (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 compounds. 

If a physical or operational change would result m 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 . 

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 effec ts screening 

levels of the compounds . 

For allowable emissions for air contaminant 

categories interchanges shall use the unadjusted emission rates for 

the different compounds. 

The effects screening level shall be determined by 

the executive director. 

Q An air contaminant cateOory is a group of 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 Notification 
of 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 new facility ; 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 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,_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 with paragraph (2) of this subsection . 

_(B) The allowable emissions from facilities 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 emissio ns 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 cred it s 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 . 

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 equipmen t 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 form for each 

change. The report need not include changes previously submitted 

by PI-E form to 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 Emit. The notification shall be 

submitted on a PI-E form to the commission's New Source 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 from the 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 New Source Review Permits Division before the 

change may occur. The change may occur after the receipt of written 

notification from the 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 sum total 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 previo usly 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 from the commission that there are no obiectio ns, or 45 

days after the PI-E form is 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 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, Room 245, James Earl Rudder Building, 1019 Brazos 

Street, Austin.) 

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 of the commission . The review of 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 . 

§116.120. Applicability. 

§116.121 . Exemptions . 

§116.122. Contents of Compliance History. 

§116.123. Effective Dates. 

§116.124 . Public Notice of Compliance 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 

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 review of 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 new site 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 any, owned or 

operated by the applicant in other states when: 

and 

(A) the application is for a new facility at a new site ; 

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 commission with a 

compliance 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 TexReg 2968 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 spec ific 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) for 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 id er'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 histo ry 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 review in the regional office of the 

Texas Natural Resource Conservation Commission ." 

§116._125.-_ Preservation off-xisting_Rights and Procedures . 

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 from the 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 applicatio n. 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. 

Filed with the Office of the Secretary of 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 

30 TAC §§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 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 . 

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 new facility or modify an existing facility or renew a 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 [Texas A-iF Control Board], the executive director, or 

designated representative may exempt the relocation of such facility 

from the requirements of this section if there is no indication that 

operation of the facility at the proposed new location will significantly 

affect ambient air quality and no indication that operation of the 

facility at the proposed new location 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) 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. 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 from the 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 TexReg 2970 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 program as 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 program under 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 of the 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 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 [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 from the 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 program under 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 from alternate 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 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 Eentrel Beard (T~kCn)] in Austin ; 

the EPA (United States Ffwifenfn eetal 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 

new or 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 TexReg 2971 
TRD-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 

30 TAC § § 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 new facility 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 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 new facilities 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) 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 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 form of 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 Secretary of 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 

30 TAC §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 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 . 

§116.160 . Prevention of Significant Deterioration Requirements. 

(a) Each proposed new major source or major modification 

in an attainment or unclassifiable area shall comply with the Pre23 TexReg 2972 March 20, 1998 Texas Register 
vention 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 new major 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 

from such 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 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 . 

§116.170. 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 from the 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 New Source Performance Standards . Minimum 

offset ratios as specified in Table 1 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 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 

New Major Source or Major Modification in Ozone Nonattainment 

Areas [Requ-ired]), §116.151 of this title (relating to New Major 

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 . 

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-9803295 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

PROPOSED RULES March 20, 1998 23 TexReg 2973 
Proposed 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) 

30 TAC §§116.180-116.183 

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 review of 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 . 

§116.180. 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 new process 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 reguire ments 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 e mission control 

equipment represented best available control technology (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 contro l 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 

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 from all 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 new process 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 m 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 : 

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 

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. 

(~ 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 would be located, 

unless the maior source in question has been specifically regulated or

exempted from regulation 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) . Administra tively complet e 

applications submitted prior to June 29 1998 and prio r to approval 

of a federal operating permit program in Texas are not subject to the 

require ments 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 not apply to 

electric utility stea m generating units unless and until such time 

23 TexReg 2974 March 20, 1998 Texas Register 
as 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 

s tationary sources that are within a source category that has been 

deleted from the source c ategory 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 program under Chapter 122 of this title (relatinpto Fe deral 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.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 Secretary of State on 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 

30 TAC §§116.310-116.314 

(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, Room 245, James Earl Rudder Building, 1019 Brazos 

Street, Austin .) 

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 of the commission . The review of 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. Review Schedule . 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-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 review of 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 . 

§116.310. 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 

from any 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 renew in 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 

New Source Performance Standards as listed under Title 40 Code of 

PROPOSED RULES March 20, 1998 23 TexReg 2975 
Federal 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 to avoi d a condition 

of air pollution or to ensure compltance with otherwis e applicable 

federal or state air quality control requirements, then : 

the applicant may be required to submit additional 

information regarding the emissions from the facility 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 practicab le considering 

the age of the facility and the impact of its emissions on the 

surrounding area. 

(c2 A compliance history review must 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 egre aiou-, 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 be en 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 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 . 

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 confirm receipt 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 

New Source Review Permits . 

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 from the 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 . Review Schedule. 

Renewal of permit The executive director shall renew a 

permit and notify the permit holder in writing if it is dete rmined 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 which 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 be forwarded 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 m writing 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 

e xecutive director shall notify the permit holder in writing of the 

denial . 

Contested case hearing After failure to satisfy the 

commission requirements for corrective action by the deadline 

specified in the executive director's report, the appl icant shall show 

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 Purpose of Rules, 

General Provisions-, Request for Contested Case Hearings ; Public 

Comment-, and Contested Case Hearings) . 

U Effective date of existing permit. An exis ting 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 be yond the expiration date ; or 

(4) until a date specified in any commission order entered 

fo llowing 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 

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 . 

§116.610. 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) New Source 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 C of 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 new or 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 th is 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 Form PI-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 form of 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 from the 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, and with 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 2977 
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 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 Maintenance, 

Startup and Shutdown Reporting Recordkeepmg, and Operational 

a ;4 Requirements [Neti¬tF-atierr RequifeffierAs ¬eF Mafef Upset 

Neti¬fsat+en Requifernents fer Maintenance ]) . 

(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 program having 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 Permits for 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 from the 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 from a 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 from the 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 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 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 a 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 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) 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 (relating 

to Stationary Engines and Turbines (Previously SE 6)) [Standafd 

E*effipt-ien NufnbeF g], except that registration using the Form PI-7 or 

PI-8 shall not be required . Emissions from engines or turbines shall 

be limited to the amounts found in §106.4(a)(1) of this title (relating 

to Requirements for Exemption from Permitting) [~s="T`~-='==+ni'c`J e4 

t13+& tide `'° to St;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 new source review provisions 

of the FCAA (Federal Clean A-if AeE], 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 

New Source Review Permits) instead of this subchapter if a PSD or 

nonattainment permit or a review under Subchapter C of this chapter 

is required . 

(14) Documentation shall be submitted to demonstrate 

compliance with applicable New Source 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 maximum achievable 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) [{-~] 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 

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 

from Toxic 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 from process 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 petroleum gas, 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 from the 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 new or 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 maximum short-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 from this 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)) below ambient 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 having jurisdiction . All piping and valves two inches nominal 

size and smaller, unless subject to federal NSPS requiring a fugitive 

VOC emissions leak detection and repair program or Chapter 115 of 

this title (relating to Control of Air Pollution from Volatile Organic 

Compounds), are also exempt from this 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 sum of 

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 sum of 

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 new or 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 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, 

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

Enforcement [Ai-r Qual'tty F^~aree*^nen t 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 fercemen t B'ruisiea] office in Austin, and shall be capable of 

detecting and alarming at H , S 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 [, 136i 

of her designated representa4v_-] 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 claim a 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 New Source Review Permits) must be 

obtained for the following : 

(A)-(E) (No change.) 

(F) any project which constitutes a new major 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 minimum height of 30 feet 

and which satisfies all of the requirements of Chapter 106, Subchapter 

A of this title (relating to General Requirements) [§1 1 6.2 1 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 Form PI-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 from all 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 review upon request by representatives of the 

commission or any local air pollution agency having jurisdiction . 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 from Permitting), 

_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 

30 TAC §§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 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 . 

§116.710. 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 §116.116 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 new owner of a facility, 

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

title, provided however, that all facilities covered by a flexible permit 

must change ownership at the same time and to the same person, 

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

permit alteration allocating the emission caps or individual emission 

limitation prior to the transfer of the 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 new flexible permit or flexible permit amendment must include a completed Form PI-1 General Application . The 

Form PI-1 must be signed by an authorized representative of the applicant. The Form PI-1 specifies additional support information which 

must be 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 ~iett 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 shortterm or long-term side effects that an air contaminant or nuisance 

odor from the facility, group of facilities, or account may have on the 

individuals attending these school facilities . 

(2) Measurement of emissions . The proposed facility, 

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 Samplin g- 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 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 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 require ments of any 

applicable MACT standard as listed under Chapter 113, Subchapter C 

of this title (relating to National Emissions Standard s 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 r8view in Subchapter B 

of this chapter (relating to New Source Review Permits) . 

[($)] 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 New Source---

Permitting Division [TNRCE Penn'rts D'"~r-am] to determine tr~7, air 

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

11) Federal standards of review for constructed or 

reconstructed maior sources of hazardous air pollutan ts . 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 Major 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 each facility 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 

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. 

( 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 maximum production 

capacity. 

§ 116. 714. Application Review Schedule . 

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 Review Schedule) . 

§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 review under §1L6.150 and §116.151 and §§116.160-116 .163 of 

^° ef ac ''^~l' apte=r H of tl}is ehap- this title [ the a«

e .. : s. .,... ~,~Q ., .oa headings r~ 

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 

from Permitting) [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 program having jurisdiction shall be notified prior to 

the commencement of operations of the facilities authorized by the 

permit in such a manner that a representative of the 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 Register 
and 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 from the 

commission [TAIRCE] or any air pollution control program having 

jurisdiction . For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within 

Texas specified by the permit holder in the permit application . This 

information may include, but is not limited to, emission cap and individual emission limitation calculations based on a 12-month rolling 

basis and production records and operating hours . Additional recordkeeping requirements may be specified in special conditions attached 

to the flexible permit . Information in the file shall be retained for 

at least two years following the date that the information or data is 

obtained . 

(7)-(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 w ith 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 Form PI- I 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 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 (relatinz " 

Exemptions from Permitting) [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 into that 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 review of 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`T Aifiaati& 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 Maj or Sources 

(FCAA § 112(g) 40 CFR Part 63)) shall comply wi 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 from the permitted facility, group of facilities, or account 

for which the flexible permit is being sought. The fee shall be $25 per 

ton with the minimum fee being $450 and the maximum fee $75,000. 

For flexible permit amendments, the fee shall be calculated based on 

$25 per ton for the incremental emission increase with the minimum 

fee being $450 and the maximum fee being $75,000 . 

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

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

payable to the Texas Natural Resource Conservation Commission 

[ 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 Review gregfarrr] . 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 from Permitt [a stat3dar d 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, 

Room 245, 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 

Program expires 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 from the 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 or functions 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 Secretary of 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, 

Room 245, 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 because the Tax Code, §5.07(a) does not require that 

the comptroller adopt this form by 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 TexReg 2984 March 20, 1998 Texas Register 
Barry R McBee, Chairman 

R B. "Ralph" Marquez, Commissioner 

John M. Baker, Commissioner 

Dan Pearson, Frecutive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

ON PROPOSED REVISIONS TO CHAPTER 116 

AND THE STATE IMPLEMENTATION PLAN 

Notice is hereby given that 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 New Construction 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 . 

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 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 regarding this proposal may be mailed 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 Review 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 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 ink 
Texas 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 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, Section 167, General Appropriations Act, 75th Legislature, 1997 . 

EXPLANATION OF PROPOSED RULES . The commission proposes a new §116 .15 and a new 

Subchapter C, §§116 .180-116.183, for the purpose of implementing a program to 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 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 V permit program in 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 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 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 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 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. 
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 reform purposes 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 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 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 CFR Part 63). These standards (commonly referred to as MACTS) are 
Texas 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 

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 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 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 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. 

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 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 now refers 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 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 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 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 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 new commercial hazardous waste 
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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 new commercial 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 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 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 (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 
Texas 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 

review under Subchapter C to 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 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 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 commission 
Texas Natural Resource Conservation Commission Page 10 

Chapter 116 - Control of Air Pollution by Permits 

For New Construction 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 new or 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 problem with 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 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 that it is appropriate to allow the 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 
Texas 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 new 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 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 EPA promulgating 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 program meets the requirements of that subpart . The 

commission believes that, with some modifications, the existing NSR program can implement the 

requirements of § 112(g) and 40 CFR Part 63, Subpart B. Accordingly, the commission believes that 
Texas 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 NSR program will 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 V permit ~ 

program- in 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 interim program. The remaining sources were to apply upon the approval of the full 

program by the EPA. Chapter 122 was recently revised (November 1997) to require all sources 

. subject to that program to 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 program well before 

the expected date required for full program approval. Therefore, after June 29, 1998, and after the 

EPA approves the recent revisions to Chapter 122, sources that trigger §112(g) review must 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 C will not be able to use a Chapter 106 
Texas 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 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 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 40 CFR 63, §63 .40(c)-(f). The commission has determined that in order to 

provide a program consistent 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 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 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 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) 

program satisfies all applicable requirements established by 40 CFR §§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 program proposed 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 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 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 . 

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 of Oil 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 

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 . 
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 review under 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 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 

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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 review for constructed or reconstructed major sources 

of hazardous air pollutants under FCAA, §112(g) and 40 CFR 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 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 allow sources 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 

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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 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 minimum fee . The $450 minimum 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 NSR permit 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 review and 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 of the 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 . 
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 conform to 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 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), 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) program that are 

constructed or reconstructed will be required to install MACT unless specifically exempted. The public 

benefit from the implementation of this program is that the commission, and not the EPA, will be the 

agency responsible for the oversight of the new program. 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 . 
Texas Natural Resource Conservation Commission Page 21 

Chapter 116 - Control of Air Pollution by Permits 

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Rule Log No . 98001-116-Al 

Revised 2/24/98 

The proposed revisions do not impose significant new requirements 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 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 law and thus are not new requirements . 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 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 

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 reform as well as provide clarifications to 

existing rule language, streamline procedures, and make the rule consistent with other commission 
Texas Natural Resource Conservation Commission Page 22 

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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 116 proposes a new program that implements 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 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) 

program requires preconstruction review of major sources of hazardous air pollutants . This new 
Texas Natural Resource Conservation Commission Page 23 

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program will 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 or 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 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. 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, 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 . The commission 
Texas Natural Resource Conservation Commission Page 24 

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Revised 2/24/98 

requests that comments on the results of the review of 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 Review 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 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 review of the 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 of Commission; Rules, §382 .0518, concerning 

Preconstruction Permit, and §382.0541, concerning Administration and Enforcement of Federal 

Operating Permit. 
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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 . 
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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 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 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 . 
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§116.114. Application Review Schedule. 

§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 . 
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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 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 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. 

§116.120. Applicability. 

§116.121 . Exemptions 

§116.122. Contents of Compliance History. 
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§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. 
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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 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 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. 
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§116.314. Review Schedule. 
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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 review of 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 . 

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 them in 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 . 
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(1) Actual emissions - The highest rate of emissions of an air contaminant actually 

achieved from a 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) of this title 

(_relating to Changes to Facilities) . 

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

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

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

net increase in allowable emissions under ~116 .116(e) of this title . 

(A) 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 of this 

title relating to Exemptions from Permitting) . 

jB 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 
Texas Natural Resource Conservation Commission Page 34 

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(C) Grandfathered facility - For a qualified grandfathered facility, the 

allowable emissions shall be the maximum annual 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 maximum annual emissions rate prior to the implementation of such control 

methods The maximum annual emissions rate is the emissions rate at the maximum annual capacity 

a ccording to the physical or operational design of the facility, data from actual operations over a period 

of no more than 12 months that demonstrates the maximum annual capacity, or other information that 

- demonstrates the maximum annual capacity. Except where a grandfather facility has been-modifiedthe allo wable 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 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 . 
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_(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 - 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 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 (40 CFR 60 and 61~.; 

(B_) Chapter 113. Subchapter C of this title (relating to National Emission 

Standards for Hazardous Air Pollutants for Source Categories (FCAA §112. 40 CFR 63)): 

(C) requirements within any applicable state implementation plan (SIP) ; 
Texas Natural Resource Conservation Commission Page 36 

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

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

CFR Part 51 Subpart 1 including permits issued under the EPA-ap r~ ved program that 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 of this chapter . 

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

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

lead Raw materials consist of lead concentrates lead-bearing ores or lead scran .'drosses . or other 

lead bearin2 residues Additional ~rocessin~ may include refining and alloying. A facility which only 

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

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

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

by the permit for a fag lit" 
Texas Natural Resource Conservation Commission Page 37 

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(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 faciliW 
Texas Natural Resource Conservation Commission Page 38 

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

been exempted under the TCAA &382 . 057 . . from preconstruction permit requirements no earlier than 

1 20 months before the change will occur: or 

(ii) uses re, .gardless of whether the facility has received a 

preconstruc tion 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 of the same class or type as a condition of issuing a 12ermit 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 of operation of a natural gas processing. treatin~ . 

or comp ression facilily connected to or nnrt of a natural gas gat -1- 

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

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

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

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

have occurred only under Chapter 106 of this title : or 
Texas Natural Resource Conservation Commission 

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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 EPA will 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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Page 40 

(15) 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 them in 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 

Definitions), the following words 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) _Adiudicated 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 of the 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 : 
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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 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 . 
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(5) Existing site - A121ant property that is not a new site . 

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 

emissions of that pollutant adjusted by an insignificant emissions factor from all sources that are 

included in a flexible permit. 

(2) Expected maximum capacit,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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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 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 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 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, in 

liquid recoverv units or gas sweetening and other gas conditioning facilities This definition does not 

include sulfur recove_rv units . 
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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 from acid 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 CFR Part 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 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 

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 : 
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(C) collect capture or treat such pollutants when released from a 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 steam generating 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 system for sale 

shall be considered an electric utility steam generating 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 of source categories - The Source Category List required by FCAA § 1 12(c) . 
Texas Natural Resource Conservation Commission Page 46 

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(7) Maximum achievable 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 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 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 new processes 

and products where such source is operated under the close supervision of technically 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 

tha t the source could be controlled using the same control technology . 
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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 of the 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 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 of this state shall 

either : 

(l) obtain a permit under §116 111 of this title (relating to General Application) : 
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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 from Permitting,) before any actual work is begun on the facility . 

(b) Modifications to existing permitted facilities Modifications to existing permitted--fad-fiti-e--~ 

may be handled through the amendment of an existing permit or an existing flexible permit . 
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(c) Exclusion. Owners or operators of constructed or reconstructed facilities subiect to 

Page 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 of this 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 30 days after the change of ownership of a facility 12ermitted under this 

chapter, the new owner 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 new owner : 
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(C) an agreement by the new owner 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 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 not 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 of engineering 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 

(relatinQ to Determination of Fees) 

(f) Resl2onsibility for permit application, The owner of the faciltv or the operator of the 

facilitv authorized to act for the owner is responsible for complyin_g~with this section . 
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§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 Form PI-1 General Application signed by an authorized representative 

of the applicant . All additional support information specified on the form must 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 from the 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-term or long-term side effects that an air contaminant or 

nuisance odor from the facility may have on the individuals attending the school(,s) 
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(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 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 from the facility . 

(D) New Source Perf-~--i ance 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 (NESHAPI -The 

emissions from the .proposed facility will meet the rec~uiremeIts of any applicable NESHAP as listed 

under 40 CFR Part 61 promulgated 12y EPA under FCAA U 12 as amended. 

(F) National Emission Standards for Hazardous Air Pollutants for Source 

Categories The emissions from the proposed facility will meet the requirements of any applicable 

maximum achievable control technology standard as listed under Chapter 113 Subchapter C of this 
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title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories 

(FCAA 4112, 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 

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 . If the 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 from a proposed new facility or 

source modification . 
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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 smelting plants shall be located at least 3 , 000 feet from 

any individual's residence where lead smelting-o-peratio n_E h~.ve not been conducted before Au usg t 31 . 

1987 This subsection does not applv-to: 

(A) a modification of a lead smelting plant in operation on or before Aumust 

31 . 1987; 

(B) a new lead 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 . 000 feet from the 

nearest residence when the ,..plant began operations. 
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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 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 suJ2p1v or park was in 

place at the time the distance was certified for the original permit 
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(D) No permit shall be issued for a new commercial 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 of distances 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 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 manageme nt facility, or 

property 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 from the edge 

of the proposed hazardous waste management unit. 

§116. 114. Application Review Schedule. 

(a) Review s chedule The executive director shall review permit applications in accordance 

with the following . 
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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 90 days 

of receipt of the application for a new permit, 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 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 
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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 . 13 1 of this title (relating to Public Notification Requirements)- 

(2) If an applicant fails to make sucll,.good faith effort the executive director shall void 

the application and notify the applicant . If the a nlication is resubmitted within_six months of the 

from the reauirements of ~116 140 of this title (relating to A~plica 
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&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: 
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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 ,T s 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 working days after 

occurrence of the event. 

(C) Start-up notification . 

(i) The permit holder shall notify the appropriate air nrosram reeional 

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 allow renresentative 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 
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(_D) Sampling requirements. 

Page 61 

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 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 to their use in fulfilling any requirements of the permit. 

(F) Recordkee~in.g . The permit holder shall: 
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(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 facilit y 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 from the 

commission or any air pollution control program having 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) Maximum allowable emission rates The total emissions of air 

contaminants from any of the sources of emissions must not exceed the values stated on the table 

attached to the permit entitled "Emission Sources Maximum Allowable Emission Rates ." 
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(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 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 . 
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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 of the 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 from Permitting) . 

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

finds that an increase of a ,particular pollutant could either 
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(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 

CFR Part 63))-, or 

(II) the provisions in §116.150 and U 16 .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: and 
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(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 (g) of this section the permit holder shall not 

vary from any representation or permit condition without obtaining a permit amendment if the chan e 

will cause: 

(_A) a change in the method of control of emissions : 

(B a change in the character of the 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 Form PI-1 and 

are subject to the requirements of 4116.111 of this title (relating to General Annlic ation) . 

(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" 
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Hazardous Air Pollutants: Reg,ulations Governing Constructed or Reconstructed Major Sources 

(FCAA §112(e) 40 CFR Part 63)) shall comply with the provisions in H 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 thange from a 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 the emission rate of any air contaminant. 
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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) 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 comDliance 

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 from Permitting) in lieu 

of permit amendment or alteration. 
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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) Notwithstanding any 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. ; 
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(_B) any decreases in allowable emissions from other 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 from other 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 individual 

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 amount 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 . 
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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 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 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 fac ilitv~-or 
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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 of this subsection and 4116.117 of this title . the followine 

subparagraphs al2g!y-. 

(A Intra_plant trading means the consideration of decreases in allowable and 

actual emissions from other qualified facilities in accordance with 12aragral2h (2) of this s ubsection. 
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(B) The allowable emissions from facilities 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 from a 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 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 4116 .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 
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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 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. a 

(4) sufficient information as necessary to show that the project will comply with_ 

§ 116 . 150 and 4116 .151 of this title (relating to Nonattainment Review) and 4§116.1 60-116 163 of this 

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 CFR Part 63)) . 

(b) Persons making such changes to,!Qualified facilities shall comnlv with the following 

notification requirements . 
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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 form for each change. The report need not include changes 

previously submitted by PI-E form to the commission under paragraphs (2 or 3) of this subsection or 

which have been_.inco roorated 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 form to 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 from the permit . 

The permit holder is relieved from complying with the permit special condition upon the filing of the 

notice, provided the change complies with 4116.116(e) of this title . 
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(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 form to the commission's New Source Review 

Permits Division before the change may occur The change may occur after the receipt of written 

notification from the 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 

of 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 sum total 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 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. 
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(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 maximum allowable emissions rate table . PI-8 form . or PI-E form. 

(b) The ore-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 from the commission that 

there are no objections. or 45 days after the PI-E form is received by the commission. whichever 

occurs first The pre-change qualification may be submitted at the same time as a pre-change 
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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. 
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SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

COMPLIANCE HISTORY 

§§116.120-116.126 

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 review of 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 : 
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(A) the existing site when the application is for a new permit 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 the a12nlicant 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 of the apnlicant : 

(,B) a parent corporation subsidiary, or predecessor in interest of the 

applicant : 
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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 accom ann 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 statingj 
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(i) the style of the case: 

(ii) the tribunal issuing the conviction or judgment, 

(iii) the docket number and the date of action: and 

(iv) the general nature of the alleged violation : 

(B) administrative enforcement orders identified by statin~ : 

i th name nr 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 identified bv stating : 

Page 82 

(,i) the name or style of action : 
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(ii) the general nature of the alleeed 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 or judgment: 

(iii) the docket numb,-Y.a nd 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 : 

Page 83 

(iii) the docket number and the date of the order : and 
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(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) A violation 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 of this 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: 
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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 : 
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(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 . 13 1 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 review in 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 

information from the commission: 
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(3) limit the authority of the 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 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 p err- application shall be 

required for further consideration by the commission. ' 
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SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

PUBLIC NOTIFICATION AND COMMENT 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 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, §382.0.'_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 renew a permit. The 

notice shall be published in a newspaper in general circulation in the municipality where the facility is 
Texas Natural Resource Conservation Commission Page 89 

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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 [Texas Air Control Board], the executive director, or 

designated representative may exempt the relocation of such facility from the requirements of this 

section if there is no indication that operation of the facility at the proposed new location will 

significantly affect ambient air quality and no indication that operation of the facility at the proposed 

new location will cause a condition of air pollution . 

(c) Applications subject to the requirements of Subchapter C of this chapter (r elating to 

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 . If the 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 proposed 
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construction . If an application is received for a permit not subject to the FCAA, Part C or D, or to 40 

CFR 51 .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 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 [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^"m during 

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 

review shall be published in the public notice section of two successive issues of a newspaper of 
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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)) ; 

(7) location and availability of copies of the completed permit application ar" °'~n 

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 

from the facility is entitled to request a hearing in accordance with commission [TACB] rules; and 

(11) name, address, and phone number of the appropriate commission [regional 

TACB] office to be contacted for further information. 
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(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 program as 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 program under the provisions of 19 TAC &89'.1205(~l [§89 .2(g)] . 

Schools not governed by the provisions of 19 TAC M.12 05 [§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(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 

program would have been taught had the school not waived out of the bilingual education program. 
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(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) [§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 ; and 
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(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 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 [TACB] 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 [TACB] 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 from the commission 

[TACB] under this subsection must be received before posting signs for purposes of satisfying the 

requirements of this section . 

(e) (No change.) 
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(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 program as 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 program under 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 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(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 

19 TAC §89 .1205(_a) [§89 .2(a)], will not trigger the requirements of subsection (f) of this section . 
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§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 from the new or 

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 of that 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 B of this title (relating to Hearing Requests, Public Comment) . 

(b) (No change .) 
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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 .) 
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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 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. 

§116.140. 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 of the project . The fee will be determined as set forth in §116 .141 of this title (relating to 
Texas Natural Resource Conservation Commission Page 99 

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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 $300,000 or 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 new facilities controlled and operated directly by the 

federal government . 

(2) (No change .) 
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(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 [permitted in Texas] ; 

(B) - (G) (No change .) 

(2) (No change.) 

(d) - (e) (No change.) 
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§116 .143 . Payment of Fees. 

All permit fees will be remitted in the form of 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 from Permitting) [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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SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

PREVENTION OF 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 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 . 

§116.160. Prevention of Significant Deterioration Requirements. 

(a) Each proposed new major source or major modification in an attainment or unclassifiable 

area shall comply with the 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 the 
Texas Natural Resource Conservation Commission Page 103 

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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 Minimis Impact. 

The commission [Texas Air Control Board] may not issue a permit to any new major 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 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 from such 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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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 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. 

§116.170. 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 from the 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 

40 Code 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 from rocket 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 of the 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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(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 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 .170 of this 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 New Major 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 of this title (relating to Prevention 

of Significant Deterioration Requirements), and 116 .1 62 [§116 .152] 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. 
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SUBCHAPTER C : HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING 

CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES 

(FCAA §112(G)) 40 CFR PART 63) 

§§116.180-116.183 

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 review of 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: Regulations 
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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 anx developed site a new Drocess or 

production unit which in and of itself emits 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 

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(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 

existinQ 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 maximum achievable 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 from all 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 new process 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- 
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Page 110 

and concernin2 the continued adequacy of anX.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~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 

HAP or 25 tons per year of aU 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 com~arable 12rocess or production unit: and 
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Page 111 

(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 program in Texas or local jurisdiction in which the major 

source is or would be located unless the major source in question has been specifically regulated or 

exempted from regulation 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 per m=" - for such construction or reconstruction project before the effective date 

of § 1 12(,g,)(2)(B) Administratively complete applications submitted prior to June 29 . 1998 . and prior 

to ap.proval of a federal operating permit program in Texas are not subject to the requirements of this 

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 

of the specific standard permit meet the requirements of this subchapter. 
Texas Natural Resource Conservation Commission 

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Rule Log No . 98001-116-AI 

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§116.181 . Exclusions . 

Page 112 

The requirements of this subchapter do not apply to electric utility steam generating 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 from the 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 40 Code of Federal Regulations . 03 .41 . 

(d) Nothing in this subchapter shall prevent a state or local agency from imposine more 

stringent requirements than those contained in this subchapter. 

&116182 Application . 

Consistent with the requirements of 40 Code of Federal Regulations 03 .43 (concernine 

maximum achievable 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 of this title (relating to Applicability) for those sources subiect to 
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an approved federal operating permit program under 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 .130 of this title 

(relating to Applicability) . 
Texas Natural Resource Conservation Commission Page 114 

Chapter 116 - Control of Air Pollution by Permits 

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SUBCHAPTER D : PERMIT RENEWALS 

§§116.310-116 .314 

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 review of 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 1 80 days 12rior 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 from any increased fee or other 
Texas Natural Resource Conservation Commission 

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penalty for failure to renew the .permit if the individual establishes, to the satisfaction of the 

Page 115 

commission that the failure to renew in 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 40 CFR Part 61 promulgated by EPA under the authority 

of the FCAA. & 112. as amended : and 
Texas Natural Resource Conservation Commission 

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(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 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,:1 ents, then: 

(1) the applicant may be required to submit additional information regarding the 

emissio ns from the 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 are a. 

(c) A compliance history review must be conducted in accordance with &4116. 120-116 .126 of 

this title (relating to Compliance History) . The renewal application must demonstrate that the facility. is 
Texas 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 submitting an 

application . 

(e) Any permit issued: 

(1) _before December 1 1991 is subiect 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 . 
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(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 davs after 

an application is complete The notice will confirm receipt 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 from the permitted 

facility to be renewed according to the following table . 
Texas Natural Resource Conservation Commission 

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RENEWAL FEE TABLE* 

X = TOTAL ALLOWABLE 

(TONS/YEAR) 

X_<5 

5 < X<24 

24 < X s 99 

99 < X < 994 

X > 994_ 

Minimum fee : $300 

Maximum fee : $10.000 

Page 119 

INCREMENTAL 

BASE FEE FEE 

300 - 

$300 $35/t o n 

965 25/ton 

$2 , 840 8/ton 

$ 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 c ,;~ 3mple, if total 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 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 review fees 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 

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Austin Texas 78711 -3088. Reauired fees must be received before the agency will consider an 

application to be complete . 

§116.314. Review Schedule. 

Page 120 

,(a) Renewal of permit The executive director shall renew a 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) If denial 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 if the requirements are met according to the 

schedule specified in the report. The executive director shall notify the nermit holder in writine of the 

permit renewal . 
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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 show cause 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 Pffective : 

(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 , if the hearing extends beyond the 

expiration date: or 

(4) until a date specified in any commission order entered following a contested case 

hearing. 
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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 of the 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 maximum a_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 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 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 this 
Texas Natural Resource Conservation Commission Page 124 

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chapter (relating to Hazardous Air Pollutants : Regulations Governin2 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 Natural Resource Conservation Commission 

(commission)] Office of Air Quality, the appropriate commission regional office [Regional Office], and 

any local air pollution program with jurisdiction, before a standard permit can be claimed. The 

registration must be submitted on a Form PI-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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§ 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 form of '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 from the 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 of the TCAA [Texas Clean Air Act (TCAA)], including protection of health and 

property of the public . 

(2) (No change .) 
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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 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 Protection Agency], or any air pollution control program having 

jurisdiction . For facilities that normally operate unattended, this information shall be maintained at the 

nearest staffed location within Texas specified by the 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 
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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 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 [governs] . 

Acceptance includes consent to the entrance of commission employees and designated representatives 

of any air pollution control program having 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 Permits for Pollution Control Projects . 

This standard permit applies to the installation of emissions 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 standard 
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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 from the 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 from a 

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 
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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 from the 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 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 a 
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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 Form PI-7 or PI-8 shall not be required . Emissions from engines or 

turbines shall be limited to the amounts found in §106 .4&1) of this title (relating t!2 Requirements for 

Exemption from Permitting) [§116.211(a)(1) of this title (relating to Standard Exemption List)] . 

(5) - (12) (No change.) 
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(13) Appropriate documentation shall be submitted to demonstrate that compliance 

with the Prevention of Significant Deterioration (PSD) and nonattainment new source review provisions 

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 Review Permits) instead of this subchapter if a PSD or nonattainment permit or a 

r eview under 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) [and National Emission Standards for 

Hazardous Air Pollution (NESHAP, 40 CFR 61)] . ' 

(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 

maximum achievable 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)). 
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(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 from Visible Emissions 

and Particulate Matter; Control of Air Pollution from Sulfur Compounds; and Control of Air Pollution 

from Toxic 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 HZS emissions from process 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) [(16)] Fuel for all combustion units and flare pilots shall be sweet natural gas or 

liquid petroleum gas, 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 from the 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 . 
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(1) Floating roofs or equivalent controls shall be required on all new or 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)) [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 maximum short-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 from this requirement. If VOC 
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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 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 [United States Environmental Protection Agency 

(EPA)] ; or any other air pollution agency having jurisdiction . All piping and valves two inches nominal 

size and smaller, unless subject to federal NSPS requiring a fugitive VOC emissions leak detection and 

repair program or Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic 

Compounds), are also exempt from this requirement . 

(B) - (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 Review Permitting [Permits] 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 sum of 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.) 
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(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 Review Permitting [Permits] 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 sum of 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. 
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(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 start-up of new or modified 

facilities . The permittee shall contact the Engineering Services Section, Office of Compliance 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 them the opportunity to view the 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) of this section, the monitors shall be approved by the Engineering 

Services Section, Office of Comnliance and Enforcement [Air Quality Enforcement Division] office in 
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Austin, and shall be capable of detecting and alarming at 1-12S 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 [, his or her designated representative,j 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 claim a 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). 
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(1) (No change .) 

(2) Separate permit authorization under Subchapter B of this chapter (relating to New 

Source Review Permits) must be obtained for the following: 

(A) - (E) (No change.) 

(F) any project which constitutes a new major source, or major modification 

under the new source review requirements 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) 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.) 
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(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 

ali of the 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 

of this 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 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 U06 . 183 of this title (relating to Boilers Heaters, or Other Combustion 

Devices (Previously SE 7)Z [§116.211 of this title, Standard Exemption Number 7] . 
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(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 . A monitoring 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 of all 

estimated uncontrolled fugitive emissions from all components is greater than ten tons per year, shall be 
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inspected and maintained under [pursuant 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 shaa' ~ : available for review upon request by representatives of the commission or any local air 

pollution agency having jurisdiction. 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 from Permitting) . as [a standard exemption] specified in paragraph (4) of 

this section shall maintain any records specified in the exemption. 

(B) (No change.) 
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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 of the 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. 

§116.710. 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 .116 of this title (relating to Amendments and Alterations) . A person may obtain a flexible 
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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 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 : ~, :°,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 . 
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~M [(e)] Responsibility for flexible permit application . The owner of the facility, group of 

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

act for the owner is responsible for complying with this section, except as provided by subsection (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 Form PI-1 General Application . The Form PI-1 must be signed by an authorized 

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

provided before the applicat=o~~ :s 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 Natural Resource Conservation Commission (TNRCC)] which demonstrates that all 

of the following are met . 

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

group of facilities, or account as determined under [pursuant to] § 116 .716 of this title (relating to 

Emission Caps and Individual Emission Limitations), will comply with all rules and regulations of the 

commission [TNRCC] and with the intent of the TCAA [Texas Clean Air Act (TCAA)], including 

protection of the health and physical property of the people . In considering the issuance of a flexible 

permit for construction or modification of any facility, group of facilities, or account within 3,000 feet 
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or less of an elementary, junior high/middle, or senior high school, the commission [TNRCC] shall 

consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance 

odor from the facility, group of facilities, or account may have on the individuals attending these school 

facilities . 

(2) Measurement of emissions . The proposed facility, group of facilities, or account 

will have provisions for 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 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 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 
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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 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 

Maximum Achievable Control Technologt% (MACT)] . The emissions from each facility as defined in 40 

CFR Part 61 will meet at least the requirements of any applicable NESHAPS, as listed under 40 CFR 

Part 61 [, or any MACT standard], promulgated by EPA under [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 CFR 63)) . 
Texas Natural Resource Conservation Commission Page 147 

Chapter 116 - Control of Air Pollution by Permits 

For New Construction or Modification 

Rule Log No. 98001-116-AI 

Revised 2/24/98 

(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 . 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 nonattainr.~, ; t review in Subchapter B of this chapter (relating to New 

Source Review Permits) . 

M [(8)] Prevention of Significant Deterioration (PSD) review . If the proposed facility, 

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

applicable requirements under the undesignated head concerning PSD in Subchapter B of this chapter . 

,( .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 from the facility, 

group of facilities, or account. 
Texas Natural Resource Conservation Commission Page 148 

Chapter 116 - Control of Air Pollution by Permits 

For New Construction or Modification 

Rule Log No . 98001-116-AI 

Revised 2/24/98 

(11) Federal standards of review for 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 of this chapter, 

the applicant shall: 

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

(B) identify each facility to be included in the flexible 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 ; 
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 maximum production capacity . 

§116.714. Application Review Schedule. 

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 

review under ,$,116 150 and 4116.151 and &&116.160-116 .163 of this title [the undesignated headings of 
Texas Natural Resource Conservation Commission Page 150 

Chapter 116 - Control of Air Pollution by Permits 

For New Construction or Modification 

Rule Log No . 98001-116-Al 

Revised 2124198 

Subchapter B of this chapter] (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 CFR Part 

63)), the permit may include a special condition which requires the permittee to obtain written approval 

from the 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 from Permitting) [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 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 
Texas 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 of the commission [Air 

Program Regional Office of the TNRCC] and any local program having jurisdiction shall be notified 

prior to the commencement of operations of the facilities authorized by the permit in such a manner 

that a representative of the 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. 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 [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 Program Regional Office of the TNRCC] . The 

flexible permit holder is also responsible for providing sampling facilities and conducting the sampling 

operations or contracting with an independent sampling consultant. 

(5) Equivalency of methods . It shall be the responsibility of the flexible permit holder 

to demonstrate or otherwise justify the equivalency of emission control methods, sampling or other 
Texas 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 from the commission [TNRCC] or any air pollution control 

program having jurisdiction . For facilities that normally operate unattended, this information shall be 

maintained at the nearest staffed location within Texas specified by the permit holder in the permit 

application . This information may include, but is not limited to, emission cap and individual emission 

limitation calculations based on a 12-month rolling basis and production records and operating hours . 

Additional recordkeeping requirements may be specified in special conditions attached to the flexible 

permit . Information in the file shall be retained for at least two years following the date that the 

information or data is obtained. 

(7) - (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 
Texas 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 of the 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 of air 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 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 

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 Form Pl-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 of all other flexible permit alterations within ten [10] days of implementing 
Texas 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 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 (relating to Exemptions from Permitting) 

[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 (relating to Exemptions from Permitting) [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 .126 of 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 Subchanter 
Texas Natural Resource Conservation Commission Page 157 

Chapter 116 - Control of Air Pollution by Permits 

For New 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 .130-116. 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 from the permitted facility, group of facilities, or account for 

which the flexible permit is being sought. The fee shall be $25 per ton with the minim_uu, :~°e being 

$450 and the maximum fee $75,000 . For flexible permit amendments, the fee shall be calculated based 

on $25 per ton for the incremental emission increase with the minimum fee being $450 and the 

maximum fee being $75,000 . 

(c) Payment of fees. All permit fees for a flexible permit shall be remitted in the form of a 

check or money order made payable to the Texas Natural Resource Conservation Commission 

[(TNRCC)] and delivered with the application for flexible permit or flexible permit amendment to the 

commission's New Source Review Permitting Division [TNRCC Office of Air Quality New Source 

Review Program] . 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 from Permitting [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 TESTIMONY 
INDEX 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 PROTECT10N AGENCY 

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 WO Vegetable 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 of Policy & 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 taken from the federal definition of "process and production 

unit" and contains the federal 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 the clause "before any actual work is begun on the facility" from the 

end of subsection (a) (4) to the general language of (a) as follows: "Permit to construct. 

Before any actual work is begun on the facility, fa]nv person who plans 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 of 43 companies in the chemical, refining, 

oil and gas, electronic, forest products, terminal, electric utility and transportation industries with 

operations in Texas. 

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3 . § 116 .110(b) : Add reference to the use of exemptions from permitting 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 from permitting under Chapter 106 of this 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 of affected sources (as defined in & 116.15 of this title) 

su ' ect t . . ." 

5 . § 116 .111(2)(K) : The term "facility" is incorrect when used in this subsection . Subsection 

(K) would be clearer if the 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 of the 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 and TIP suggests using that language in lieu of this proposal . 

7. § 116 .115(b)(2)(I)(ii) : By deleting the words "shall govern," TNRCC is proposing a 

substantive change to the existing language of § 116.115(b)(9) . Because the preamble states 

that the changes do not involve substantive requirements, TIP believes 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 and exemptions" (with "special" referencing both "special permits" 

and "special exemptions"--a type of exemption no longer available today.) A reference to 

standard permits was added when those types of permits became available. Placement of that 

reference has changed the meaning of the clause, such that it can be read to authorize general 

and special conditions for exemptions from permitting under Chapter 106. Since a facility 

"claims" such exemptions rather than applies for them, there is no opportunity--nor is it 

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appropriate--for the TNRCC to 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 TNRCC staff determine whether it is using the 

term "permits" correctly throughout these Regulation VI revisions. In some situations, 

TNRCC distinguishes between types of permits, 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 why this 

provision affects standard permits . 

9. § 116 .115(c)(2)(B): The § 112(g) requirements proposed in Subchapter C will apply to 

"affected sources," as defined in § 116.15. "Increases in a particular pollutant" cannot cause 

a "facility" to become subject to review under Subchapter C. TIP is 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 of existing facilities . Thus, 

Subchapter C will apply only in very limited circumstances. Simply increasing a particular 

pollutant will never be enough to subject a source 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 new or reconstructed "process or 

production unit" at an existing plant site, provided that the "process 

or production unit" emits hazardous air pollutants in amounts that 

exceed the major source threshold. A new process or production unit 

at an existing major source must itself be inherently major-emitting; 

the EPA does not intend that a new process or production unit 

causing increased emissions at another unit downstream be covered 

by this rule ." 61 Fed. Reg. 68385 . 

TNRCC needs 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 . 

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10 . § 116 .116(a): The existing language of § 116 .116(a) provides "All representations with 

regard to construction plans and operation procedures in an application for 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 broaden this language by adding the word "include" 

before listing the types of representations found in existing § 116.116(a). This could allow 

TNRCC enforcement staff to argue that other types of representations in permit applications 

are also conditions upon which a permit was issued by interpreting "include" as mere 

examples, rather than an exclusive list . TIP believes the existing language is much clearer 

and easier to understand, and recommends that TNRCC simply separate that language into 

subsections to follow its new format . 

11 . § 116.116(b)(3) : The phrase "that concerns a determination for constructed or reconstructed 

sources under Subchapter C . . ." is confusing. TIP suggests rewriting § 116.116(b)(3) as 

follows: "Anv person who applies for an amendment to a permit to construct or reconstruct 

a major source of HAP subject 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 the addition of control methods at qualified facilities . As 

currently drafted, the sentence "The implementation of any additional control methods shall 

be subject to the requirements of this chapter" is found at the end of the paragraph addressing 

the addition of such methods for the purpose of making 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 if ALL additional control measures" are subject to the requirements of this 

chapter" (whatever that means) rather than ONLY those additional control methods that are 

being implemented for the purpose of making a facility a qualified facility. TIP recommends 

either deleting the sentence in its entirety (because its meaning is unclear as drafted even in 

the existing language of § 116.116(e)(5)) or redrafting it to state "The implementation of any 

additional control methods to qualify a facility shall be subject to the requirements of this 

chapter . . ." 

13. § 116.121 : TNRCC is proposing to replace "contaminant" with "substance ." "Substance" 

does not appear to be a defined term. In contrast, "air contaminant" is defined in the Texas 

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Ms. Lisa Martin - 5 - April 20, 1998 

Clean Air Act and is commonly used in the area of air pollution control. TIP recommends 

leaving the existing wording in place. 

14 . § 116.122(b): TNRCC is proposing to change this subsection from plural (violations) to 

singular (violation). TIP requests that the provision be left in its plural form. 

15 . § 116.141(b) : Though not proposed for revision, TIP notes that the existing language of this 

section provides that the applicant "may" use the fee schedule to determine its fee. A better 

word would be "shall" since there is no discretion in fee payment. 

16 . § 116.180(a): TIP is concerned that TNRCC will confuse the regulated community by 

placing some definitions in § 116.15 and some in § 116.180(a) with no cross-reference. TIP 

believes it would be more useful to keep all of the § 112(g) definitions in the same section, 

perhaps with separate paragraphs, if needed. 

17. § 116.180(b): TIP strongly believes that TNRCC should conduct its own § 112(g) program 

and avoid duplicative agency review by 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) program provides that nothing in Part 63 Subpart B, Requirements for Control 

Technology, shall prevent a state or local agency from imposing 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 

stringent than this rule . If TNRCC has existing state HAPs rules that are more stringent than 

the federal rules, then it should identify those rules with specificity and explain the need for 

such rules. Otherwise, TIP fears 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 Clean Air Act. 

19. § 116.182: This provision contains incorrect terms and cites. TIP suggests that the section 

be rewritten as follows: "Consistent. . . . the owner or operator of a proposed affected source 

(as defined in § 116.15 of this title) shall submit a permit application . . ." The term "affected 

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source" encompasses both the construction and reconstruction of major sources of HAPs, as 

those sources are defined under § 112(g) . Also, "an approved federal operating permit 

program" can be interpreted to mean the interim Title V program. If this 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 TNRCC clarify the Title V program to 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 of this 

~ public notice requirements contained in & 116.130 of this title ti tle) shall comply with he 

(relating to ApplicabilitYL 

21 . § 116 .312(a): The current language of this section requires the executive director to provide 

written notice to the permit holder within 30 days of receipt of a completed application for 

permit review and renewal. The proposed revision does not specifically provide for this . 

Moreover, neither the current nor the proposed language explains whether the TNRCC is 

referring to administratively complete or technically complete applications . Since this 

proposal is intended to simplify and clarify existing rules, it would be useful if there were 

an outlined procedure whereby TNRCC reviewed the renewal application and notified the 

applicant of obvious, simple errors (e .g . failure to sign the application) so that such errors 

could be remedied in a timely fashion. The applicant could later be notified when the 

applicant can provide public notice . TIP suggests revising § 116.312(a) as follows : "The 

executive director shall mail a written 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 if any The annlicant shall have 30 days to resnond to a notice 

of administrative deficiencv The executive director shall notify the applicant within 30 days 

after the a_pnlication is deemed administratively complete Within 30 davs after an 

application is deemed technically complete. the executive director shall provid e written 

notice of technical completeness to the applicant and shall require the annlicant to provide 

public notice of the application for _permit renewal in accordance with Subchapter B of this 

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: "Any nroject involving a proposed affected source (as 

AUS01 :133369.1 

111111 .1111 
BAKER & 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 C of this chapter . . . " 

23 . § 116.621(2)(F): For clarity, the phrase "is subject to" should be added as follows: "is 

subject to Subchapter C of this chapter . . ." This language is needed because the prefatory 

clause "any project which constitutes a new major source 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 that this language applies to major sources of HAPs subject to Subchapter 

C. TIP suggests the following language: " For new facilities and proposed affected sources 

(as defined in § 116.15 of this title) subject to Subchaoter C of this chapter (relating to 

Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major 

Sources (FCAA § 112(,g) 40 CFR Part 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 to facilities rather than major sources. TIP suggests revising § 116.711 (11) as 

follows: "Federal standards of review for constructed or reconstructed ma 

' 

jor sources of 

hazardous air pollutants . If a Proposed source is an affected source (as defined in § 116.15 

of this title.), 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)1. " 

26. § 116.740(b) :, TIP requests that TNRCC not use the ambiguous phrasing "that concerns" a 

MACT determination under § 112(g) . TIP suggests revising § 116.740(b) as follows: " Any 

person who applies for an amendment to a flexible permit to construct or reconstruct a major 

source of HAPs subject to Subchapter C of this chanter (relating to Hazardous Air Pollutants : 

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 of this title ." 

AUS01 :133369.1 

111111 .1111 
Richard L. White 

Vice President, Environmental Services 

TUSERVICES 

April 20, 1998 

Ms. Lisa Martin 

Texas Natural Resource Conservation Commission 

Office of Policy and Regulatory Development 

MC 205 

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 of the population and area of the State. 

TU recommends the following technical changes: 

Federal Clean Air Act Section 112(g,) Definitions 

Section 116.15(7) - For purposes of maximum achievable control technology, the definition 

of "new source" should conform to that contained in Section 112(a) of the Federal Clean Air 

Act. 

Applicability 

116.110(d)(1) - The TNRCC should consider extending the time period for notification of 

ownership changes that involve multiple sites and permits. 

Changes to Facilities 

116 .116(e)(3)(C) and (E) - For clarification 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 
Page 2 

Documentation and Notification of Changes 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 modifying these proposed notification procedures to match the existing 

procedures in the Operating Permit rule, Chapter 122. 

Applicability 

116 .180(a)(1)(B)(ii)(I) - The term "Toxics-best available control technology" (T-BACT) 

should be clearly defined. . 

71hank you for the opportunity to comment. 

Sincerely, 

Richard L. White 
INDEX 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. If adopted, 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) . (Jim Dodds, Mark Gibbs) (Rule Log No. 98001-

116-AI) 

What the Adopted Rules Would Do : 

Chapter 116 contains 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) program requires 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) program prior to the United States 

Environmental Protection Agency (EPA) promulgating a MACT that would apply to the. source . 

Changes have been made throughout Chapter 116 in 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 allow the use of discrete emission reduction credits (DERCs) 

to exceed permit allowables under certain conditions . 
Commissioners 

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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 

problem with the current rule. 

Section 116 .750(b) is corrected to make it clear that the minimum fee 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 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 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 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 of federal operating permits and appeal of delays; §382.055, 
Commissioners 

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May 29, 1998 

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 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 review of 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 . 

Reason Rules Are Needed: 

The new Suhch 3 : ~ 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 CFR 63, 

§§63 .40-63 .44 . 40 CFR 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 EPA promulgating a MACT that would 

apply to the affected sourc°, . 40 CFR 63, §63 .42 allows states to rely on existing new source 

review (NSR) permitting programs to implement the requirements of §112(g) if the NSR program 

meets the requirements of that subpart . 

40 CFR Part 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 program in 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 interim 

approval for the source category limited program was no longer considered to be effective by the 

EPA (that program was 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 program to be approved in Texas. Thus, since §63 .40(b) has a 
Commissioners 

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May 29, 1998 

Re : Docket No . 98-0068-RUL 

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 now understands that EPA has reconsidered its position 

concerning the source category limited program and now considers it to be the approved federal 

operating permit program for 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 interim program, once the interim program 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. 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 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 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 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 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 MACT 
Commissioners 

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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 of control . 

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 program is 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 of an 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 

2,640 feet of any specified off- site receptor. The statutory provision prohibits the construction 

of a new commercial hazardous waste management facility that would be within 2,640 feet 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 allow a source to meet emission control requirements by 

purchasing and using credits generated by another source which has reduced its emissions below 
Commissioners 

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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 new or 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 problem with 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 review of 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 of these 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 allow the 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 minimum new permit 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 $450 minimum 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 NSR permit amendments . 

Public Conunent: 

Comments were received from the EPA, the Texas Industry Project (TIP), and TU Services (TU). 

The EPA commented that the effective date of the § 112(g) program in Texas is June 29, 1998, and 

not the proposed date of June 29, 1998, and the date of approval of a federal operating permit 

program in Texas . EPA also commented that in some cases a MACT review could result in 

requirements that are more restrictive than BACT. If so, 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 

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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 of the conditions incorporated from 

40 CFR Part 63, Subpart B. The TIP is concerned that the incorporation of these 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 

reform suggestions made by the TIP . The new effective date of the §112(g) program is 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 from 40 CFR Part 

63, Subpart B. The staff did not believe it would be appropriate or necessary to revise language 

that was incorporated from the federal rule. 

TU had several conunents concerning the use of the term "effects screening level" (ESL) 

throughout Chapter 116 . The staff did not make changes to the rules based on these comments, 

since the guidance document "Modeling and Effects Review Applicability" (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) program be 

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 staff developed 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 of Chapter 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 law and thus are not new requirements . The other 
Commissioners 

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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 Program Consistency 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 new facility 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 program is expected to be minimal since 

the program can be implemented using the current permitting process, with some modifications, 

as required by Chapter 116. 

Agency Contacts : 

Jim Dodds, Air Policy and Regulations Division, 239-0970 

Mark Gibbs, New Source Review Permits .,,on, 239-1297 

Susan Owen, Legal Division, 239-0576 

Liz,a Tvlartiii, Texas Register Team, 239-1956 

cc: 7 copies to the Chief Clerk for 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 116.750 and the repeals are adopted 

without changes and will not be republished . 
The commission adopts the review of the rules contained in 30 TAC Chapter 116, concerning Control 

of Air Pollution by Permits for New Construction or Modification. This review was adopted in 

accordance with Article IX, § 167, General Appropriations Act, 75th Legislature, 1997. 

EXPLANATION OF ADOPTED RULES. The commission adopts a new § 116 .15 and a new 

Subchapter 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-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 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 connnents) . By 
repealing these sections, the commission was able to revise the language without having to make 

extensive use of the editing requirements of the 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 from that 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 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 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 . ' 

The following paragraphs describe the adopted amendments to Chapter 116 by 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 reform review . 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 from 

permitting by referring to 30 TAC 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 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 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. 

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 

Review Permits, Division 1 : Permit Application (§116 .110, Applicability, §116 .111, General 

Application, § 116 .112, Distance Limitations, § 116 .114, Application Review Schedule, § 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 review permitting requirements of the Texas Clean Air 
Act (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 Review Permits, 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 reform changes. 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 review will be required as well 

as provide direction for how that review will 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 from owners 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 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 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 new owner. 

The commission adopts a new §116.110(e) to reflect the recent revisions to the Texas Engineering 

Practice Act (TEPA) which now refers 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 Gas 
Facilities, 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 CFR 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 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 2,640 feet of any specified off-site 

receptor. The statutory provision prohibits the construction of a new commercial 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, if the 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 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 B of this 

chapter . This change was 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) 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 riot 

cause or contribute to a condition of air pollution. The adopted language of §116.116(t) allows the use 

of credits to authorize certain exceedances of permit allowables, and is consistent with existing 

authorization in Chapter 101 . 

10 
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 .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 review under Subchapter C to 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 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 phone number of the appropriate commission office to contact for further information will 

11 
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 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 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 from a state construction permit. 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 . 

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 pre1987 applications from the federal government have been acted on by the commission, this provision is 

no longer necessary. 

12 
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., the permit expired and was not renewed). A historical 

review of 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 allow the 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 minimum new 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 Parf 63) . 

The new Subchapter 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 

13 
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 

affected sources (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 program meets 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 CFR Part 63, Subpart B. 

40 CFR Part 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 program in 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 interim 

approval for the source category limited program was no longer considered to be effective by the EPA 

(that program was approved on June 25, 1996 (61 FR 32693) . The EPA had informed the commission 

14 
that due to the extensive revisions to Chapter 122 in November 1997, it no longer considered the 

operating permit program to 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 now understands that EPA has reconsidered its position 

concerning the source category limited program and now considers it to be the approved federal 

operating permit program for 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 interim 

program, once the interim program 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 . 

15 
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 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 caseby-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 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 

16 
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 

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 

program consistent 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, 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 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 

17 
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 .44 for a §112(g) program . As outlined in the EPA 

preamble to the final rules implementing §112(g) (see 61 FR 68390), the program proposed 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 reform changes . 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 review schedule 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 

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 . 

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) now includes 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 review under Subchapter C . 

19 
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 for any constructed or reconstructed facility that is required to 

meet Subchapter C. 

Section 116.7 11 (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 40 CFR Part 63 must comply with Subchapter C. 

Section 116 .715(a), concerning general and special conditions, was amended to include the case-~ ycase MACT review under Subchapter C when considering whether a facility is eligible for a flexible 

permit under § 116.7 10. 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 

20 
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 to allow sources to continue to fully 

utilize flexible permits while meeting the conditions of Subchapter 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 minimum fee 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 $450 minimum fee . The $450 minimum 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 NSR permit amendments . 

REVIEW OF AGENCY RULES . The commission adopts the review of 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 to exist. The 

21 
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 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 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 law and thus are not new requirements . 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 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 

22 
implement the commission's guidelines on regulatory reform as 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 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 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, 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 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 review of 

23 
major sources of hazardous air pollutants. This new program will 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 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 . 

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 review of 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 "new source" 

should conform to 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 

24 
sources" terminology and definition was taken directly from Part 63. It is not the commission's 

intent to revise the definition of "new source" or to apply it in any way that differs from the 

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 term is 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) 

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 . 

25 
The TIP suggested moving the phrase "before any actual work is begun on the facility" from the 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 TIP commented 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 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), 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 TU because the suggestion is beyond 

the scope of the rule proposal. The commission believes that it is important to maintain as 

26 
current 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 allow a 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) 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 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 

27 
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 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 of the rule, the 

rule has been revised to retain the original language. 

28 
TIP 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 

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 review of permits subject to either Prevention of Significant 

Deterioration under §§116.160-116.163 or Nonattainment Review under §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 . 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 

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 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) ." 

30 
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 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 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 

§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 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 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. 

32 
It appears that TIP believes that changing "violations" from plural 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 116 conform with the requirements of the 

TCAA and the APA. The procedures for Chapter 122 were developed in order to meet the 

requirements of 40 CFR Part 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 TU 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 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. 

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 . 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 CFR Part 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 CFR Part 63, Subpart B (61 FR 68383, 68389) discusses 

the definition of "construct a major source." Specifically, the EPA acknowledges that states may 

use different levels of control in their air quality programs (e .g., BACT, lowest achievable 

emission rule, or a state toxics program that 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 

EPA commented that § 116 .182 limits the implementation of § 112(g) to the sources in Texas covered by 

the Texas interim operating permit program. EPA noted that sources not covered by the interim 
program will also be subject to §112(g) after June 29, 1998, and will be required to obtain a §112(g) 

determination from the EPA prior 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 

review by the commission and the EPA and recommended adopting whatever compliance date was 

necessary to avoid such duplication. 

Based on the comments received from the 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 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-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 "new facility (major source) ." TIP also noted that the reference to 

"approved operating permit program" could cause confusion about the effective date of the § 112(g) 

program in 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) program is 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 30 days 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 

37 
suggested that since the 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 review process. Although this 

section was revised under the regulatory reform process, the commission believes adopting a new 

process with additional timelines for review of 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 language with 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 

38 
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 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) 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 be subject to the 

requirements of §116.110 of this 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. 

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 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 C and 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 . 

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 will 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))." 

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 of this 

40 
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 ." 

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 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 law or 

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 

41 
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 review of 

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 . 
STAFF 

RECOMMENDATIONS 
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. 
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 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, 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 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 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 review of 

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. 
§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 them in 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 

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

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

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

(relating to Changes to Facilities) . 

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

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

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

net increase in allowable emissions under § 116 .116(e) of this title . 

(A) Permitted facility - For a facility with a 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 

46 
issuing the permit, plus any allowable emissions authorized by an exemption under Chapter 106 of this 

title (relating to Exemptions from Permitting) . 

(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 maximum annual emissions rate is the emissions rate at the maximum annual capacity 

according to the physical or operational design of the facility, data from actual operations over a period 

of no more than 12 months that demonstrates the maximum annual capacity, or other information that 

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

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

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

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

47 
allowable emissions shall be the maximum emissions 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 of controls . 

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

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

the facility . 

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

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

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

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

the EPA, including : 

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

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

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

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

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 

CFR Part 51, Subpart 1, including permits issued under the EPA-approved program that is incorporated 

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

(6) Grandfathered facility - Any facility that is not a new facility since it was 

constructed prior to the permit requirements of this chapter . 

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

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

lead . Raw materials consist of lead concentrates, lead-bearing ores or lead scrap, drosses, or other 

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

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

by the permit for a facility . 
(9) Modification of existing facility - Any physical change in, or change in the 

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

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

emitted . The term does not include : 

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

authorized by one or more commission exemptions ; 

(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 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, from preconstruction permit requirements no earlier than 

120 months before the change will occur; or 

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

preconstruction permit or permit amendment or has been exempted under the 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 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 

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

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

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

have occurred only under Chapter 106 of this title ; or 

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

1972, and which registered in accordance with TCAA, §382 .060, as that section existed prior to 

September 1, 1991 . 

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

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

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

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

commenced after March 5, 1972 . 

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

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

exists . The EPA will designate the area as nonattainment under the 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 - A point 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 them in 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 

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 

of this state, another state, or of the 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 of the 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 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 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 from all sources that are 

included in a flexible permit. 

(2) Expected maximum capacity - 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 

55 
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 from acid 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) 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 ; 

(B) enclose systems or processes to eliminate emissions; 

. (C) collect, capture, or treat such pollutants when released from a 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 steam generating 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 system for sale 

shall be considered an electric utility steam generating 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 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 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 . 
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 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 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 

60 
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 review of 

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. 
§116.110. Applicability . 

§116 .111 . General Application. 

§116.112. Distance Limitations . 

§116.114. Application Review Schedule. 

§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 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 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 

63 
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 .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 of uncontested matters to the executive director; §5 .234, which 

provides for applications and other documents; §5 .351, which provides for judicial review of 

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. 
§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 K of this title (relating to Concentrated Animal 

Feeding Operations) ; 

(C) Chapter 332 of this title (relating to Composting) ; or 

(D) Chapter 330, Subchapter N of 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 

65 
(4) satisfy the conditions for exempt facilities under Chapter 106 of this title (relating 

to Exemptions from Permitting) . 

(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 C of 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 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 new owner; 

(C) an agreement by the new owner 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 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) . 

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 . General Application. 

In order to be granted. a permit, amendment, or special permit amendment, the application must 

include : 

(1) a completed Form PI-1 General Application signed by an authorized representative 

of the applicant. All additional support information specified on the form must 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 from the 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 

68 
shall consider any possible adverse short-term or long-term side effects that an air contaminant or 

nuisance odor from the 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 from the 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 from the 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 maximum achievable 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)). 

(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 from a 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 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 the following distance criteria. 

(1) Lead smelters . New lead smelting plants shall be located at least 3,000 feet 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 new lead 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 from the 

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 new hazardous 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 supply, 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 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. 

(C) 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 

72 
drinking 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 new commercial 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 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 of distances shall be taken from a perimeter around the 

proposed hazardous waste management unit. The perimeter shall be no more than 75 feet from the edge 

of the proposed hazardous waste management unit. 
§116 .114 . Application Review Schedule. 

(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. 

(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 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 

74 
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 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 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 of deficient 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 

75 
met 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 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 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 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 

(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 program regional 

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 allow representative 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 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 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 from the 

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 from any of the sources of emissions must not exceed the values stated on the table 

attached to the permit entitled "Emission Sources--Maximum Allowable Emission Rates ." 

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 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 . 

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 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- from Permitting) . 

(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 review under 

(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 

(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 from any 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 

(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) 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) . 

83 
(c) Permit alteration. 

(1) A permit alteration is : 

(A) a decrease in allowable emissions; or 

(B) any change from a 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 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) of this title . 

(d) Exemption under Chapter 106 of this title (relating to Exemptions from Permitting) 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 

(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 from other 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. 
(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 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 . 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 from other qualified facilities in accordance with paragraph (2) of this subsection. 

(B) The allowable emissions from facilities 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 . 

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) 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 

90 
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 form for each change. The report need not include changes 

previously submitted by PI-E form to 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 form to 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 

from the 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 . , 

(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 form to the commission's New Source Review 

Permits Division before the change may occur. The change may occur after the receipt of written 

notification from the 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 

of 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 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 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 . 

§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 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 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 from the commission that 

there are no objections, or 45 days after the PI-E form is 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 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 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 

95 
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 review of 

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 . 
§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 

DIVISION 2 : 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 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 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 

98 
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 '-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 for judicial review of 

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. 
§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 new permit, amendment, or 

renewal at the existing site ; 

(B) 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 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) the applicant does not own or operate similar facilities in Texas. 

(3) If the applicant has no compliance history in the 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 of the case; 

(ii) the tribunal issuing the conviction or judgment; 

(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 : 

(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 ; 

102 
(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 or judgment; 

(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 ; 

103 
(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 

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 .120-116.126 of this 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 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 review in 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 of any person to request and obtain compliance history 

information from the 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 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. 
SUBCHAPTER B : NEW SOURCE REVIEW PERMITS 

DIVISION 3 : PUBLIC NOTIFICATION AND COMMENT 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 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 ; §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 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 

108 
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 review of 

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. 
§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 renew a 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, the executive director, or designated representative may 

exempt the relocation of such facility from the requirements of this section if there is no indication that 

operation of the facility at the proposed new location will significantly affect ambient air quality and no 

indication that operation of the facility at the proposed new location 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), 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 . If the application is complete, for any permit subject to the 

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 proposed construction. If an application is received for a 

permit not subject to the FCAA, Part C or D, or to 40 CFR 51 .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 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 §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 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 of this 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 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, Title I, Part C or D, or to 40 Code of Federal ?'_ . ;alations 

51 .165(b)) ; 

(7) location and availability of copies 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 

from the facility is entitled to request a hearing in accordance with commission rules; and 

112 
(11) name, address, and phone number of the appropriate commission office to be 

contacted for further information . 

(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 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 program as 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 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) under 19 TAC §89.1205(g), the 

113 
notice 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) - (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), and are not otherwise affected by 19 TAC 

§89.1205(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 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 of the 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) (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 ~ ~ ~~~iission 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 from the 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 

115 
facility provides a bilingual education program as 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 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 '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 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), 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 

116 
to the commission in Austin ; the EPA 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 new or 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 of that 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 of this 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 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 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 

118 
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 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 of uncontested matters to the executive director; §5.234, which 

provides for applications and other documents; §5 .351, which provides for judicial review of 

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. 
§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 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 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) 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 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) of this 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 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 .) 
§116.143. Payment of Fees. 

All permit fees will be remitted in the form of 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, MC 214, 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 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) 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. 
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 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 .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 law or 

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 

123 
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 

°.stablish 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 review of 

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. 
§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 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 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 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, 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 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 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 ; 

notic- , '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 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 

126 
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. !-- -;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 for judicial review of 

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. 
§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 reduction's to offset emissions expected from the 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 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 of this title (relating 

to Nonattainment Review Definitions) 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 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 .170 of this 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 .150 of this title (relating to New Major 

Source or Major Modification in Ozone Nonattainment Areas), § 116.151 of this title (relating to New 

129 
Major 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 . 
SUBCHAPTER C : HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING 

CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES 

(FCAA, §112(G), 40 CFR PART 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 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 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 

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 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 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 for judicial review of 

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 . 
§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 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 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 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 40 Code 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 of pollutants 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 HAP from all sources to be controlled by the existing control equipment will 

134 
be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion 

of the new process 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) 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(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 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 new sources 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 from regulation 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 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 . 
§116.181. Exclusions. 

(a) The requirements of this subchapter do not apply to electric utility steam generating 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 subchapter do not apply to stationary sources that are within a 

source category that has been deleted from the 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 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. 

§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(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 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 of commission actions ; §382 .040 and §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 law or 

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 

139 
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 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 for judicial review of 

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. 
§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. 
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 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 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 

142 
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 

peimits; §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 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 for judicial review of 

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. 
§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 review and the information to be included in the application . Under Texas 

Civil Statutes, Article 9027, the commission shall exempt a permit holder from any 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 renew in 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 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 maximum achievable 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)) . 

(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 review must 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 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. 

146 
(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 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 30 days after 

receipt of a complete application. The notice will confirm receipt 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 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 AIR QUALITY PERMIT." 
§116.313 . Renewal Application Fees. 

(a) The fee for renewal is based on the total annual allowable emissions from the permitted 

facility to be renewed, according to the following table. Figure : 30 TAC §116 .313(a) 

RENEWAL FEE TABLE* 

X = TOTAL ALLOWABLE 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 -- 

Minimum fee : $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 

of all air contaminants are 50 tons 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 review fees 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. Review Schedule. 

(a) Renewal of permit. The executive director shall renew a 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 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 § 116.3 11(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 if the 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 of the 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 show cause 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 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 any commission order entered following a contested case 

hearing . 
SUBCHAPTER F : STANDARD PERMITS 

§§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 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 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 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 

152 
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 ^~ ~~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 for judicial review of 

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. 
§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 comply with the applicable provisions of the FCAA, 

§ 111 (concerning New Source Performance Standards) as listed under Title 40 Code 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 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 of Air Quality, the appropriate commission regional 

office, and any local air pollution program with jurisdiction, before a standard permit can be claimed . 

The registration must be submitted on a Form PI-1S and must document compliance with the 

requirements of this 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 of registration, a flat fee of 

$450 for each standard permit claimed. All standard permit fees will be remitted in the form of a 

check or money order made payable to the Texas Natural Resource Conservation Commission 

(TNRCC) and delivered with the permit registration to the TNRCC, P.O . Box 13088, MC 214, 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 from the 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 of the 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 .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, or any air pollution control program having jurisdiction. For facilities that normally operate 

unattended, this information shall be maintained at the nearest staffed location within Texas specified 

by the 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 

157 
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) . 

(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 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 program having 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 Permits for Pollution Control Projects. 

This standard permit applies to the installation of emissions 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 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 . 

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 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 from the 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 of this title (relating to 

Changes to Facilities) prior to utilizing any production capacity increase from a 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 §116. 110 or §116 .116 of 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 from the 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 of the 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 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 46 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 

(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 from engines or turbines shall be limited to the amounts 

found in §106.4(a)(1) of this title (relating to Requirements for Exemption from Permitting) . 

(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 review provisions 

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 New Source Review 

Permits) instead of this subchapter if a PSD or nonattainment permit or a review under Subchapter C of 

this chapter is required. 

161 
(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 

maximum achievable 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) 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 from Sulfur Compounds; and Control of Air Pollution from 

Toxic 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 

HZS emissions from process 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 

petroleum gas, 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 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 SOZ emissions from the 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 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 maximum short-term storage 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 10,000 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 from this 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)) below ambient 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 'laving jurisdiction. 

All piping and valves two inches nominal size and smaller, unless subject to federal NSPS requiring a 

fugitive VOC emissions leak detection and repair program or Chapter 115 of this title (relating to 

Control of Air Pollution from Volatile Organic Compounds), are also exempt from this 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 Permits Division that the monitoring schedule be revised based on the 

164 
percent 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 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) - (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 Review Permits 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 sum of 

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 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 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 them the opportunity to view the sampling . Neither the regional office nor the Engineering 

Services Section, Office of Compliance and Enforcement 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 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) 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 claim a 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 1, Type 1-AE, Type II, Type III, Type 

167 
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 New 

Source Review Permits) must be obtained for the following: 

(A) - (E) (No change .) 

(F) 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) 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 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. 

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 A of this 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 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 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 (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 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 . 

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 review upon request by representatives of the commission or any local air 

pollution agency having jurisdiction. 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 from Permitting), 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 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 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 

172 
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 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 for judicial review of 

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. ' 
§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 §116.116 of this title (relating to Amendments and Alterations) . A person may obtain a flexible 

permit under § 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) Change in ownership . The new owner of a facility, group of facilities, or account shall 

comply with § 116.110(c) of this title, provided however, that all facilities covered by a flexible permit 

must change ownership at the same time and to the same person, or both the new owner and existing 

permit holder must obtain a permit alteration allocating the emission caps or individual emission 

limitation prior to the transfer of the 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 of Texas licensed professional engineer. All applications for a flexible 

permit or flexible permit amendment shall comply with § 116.110 (e) of this title . 

174 
(d) Responsibility for flexible permit application. The owner of the facility, group of facilities, 

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

owner is responsible for complying with this section, except as provided by subsection (b) of this 

section . 

§116.711. Flexible Permit Application. 

Any application for a new flexible permit or flexible permit amendment must include a 

completed Form PI-1 General Application . The Form PI-1 must be signed by an authorized 

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

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 from the 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 short-term or long-term side effects that an 

175 
air contaminant or nuisance odor from the facility, group of facilities, or account may have on the 

individuals attending these school facilities . 

(2) Measurement of emissions . The proposed facility, group of facilities, or account 

will have provisions for 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 of reducing or eliminating the emissions from the facility on a proposed 

facility, group of facilities, or account basis. Control technology beyond BACT may be used on certain 

facilities to provide the emission reductions necessary to comply with this requirement on a group of 

facilities or account basis, provided however, that the existing level of control may not be lessened for 

any facility . For new facilities 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), 

40 CFR Part 63)), the use of BACT shall be demonstrated for the individual facility or affected source. 

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

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

176 
of any applicable NSPS as listed under Title 40 CFR Part 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 from each 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 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 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 . 

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 review in Subchapter B of this chapter (relating to New 

Source Review Permits) . 

(9) 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 . 

(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 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 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 of this 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 maximum production capacity . 

§116.714. Application Review Schedule. 

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 CFR Part 63)), the permit may include a special condition which requires the 

permittee to obtain written approval from the executive director before constructing a facility under a 

standard permit or an exemption under Chapter 106 of this title (relating to Exemptions from 

Permitting) . 

(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 may grant a one time 12-month extension of the date to 

180 
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 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 program having jurisdiction shall be notified prior to the commencement of operations of the 

facilities authorized by the permit in such a manner that a representative of the 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 of the 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 otherwise justify the equivalency of emission control methods, sampling or other 

emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the 

conditions of the flexible permit . Alternative methods shall be applied for in writing and must be 

reviewed and approved by the executive director prior to their use in fulfilling any requirements of the 

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 

a,, ailable at the request of personnel from the commission or any air pollution control program having 

jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the 

nearest staffed location within 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) . 

(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 TCAA and the conditions precedent to the 

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

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

compliance shall be demonstrated. Acceptance includes consent to the entrance of commission 

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

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

(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 from such representation or flexible permit provision if the change will 

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

significant increase in emissions, unless application is made to the executive director to amend the 

flexible permit in that regard and such amendment is approved by the executive director or 

commission . Applications to amend a flexible permit shall be submitted with a completed Form PI-1 

and are subject to the requirements of §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 

184 
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 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 (relating to Exemptions from Permitting) 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 of this title (relating to 

General and Special Conditions) . All such exempted changes to a permitted facility shall be 

incorporated into that facility's permit at such time as the permit is amended or renewed. 

(2) Emission increases authorized by Chapter 106 of this 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 review of 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) 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 . 
§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 from the permitted facility, group of facilities, or account for 

which the flexible permit is being sought . The fee shall be $25 per ton with the minimum fee being 

$450 and the maximum fee $75,000 . For flexible permit amendments, the fee shall be calculated based 

on $25 per ton for the incremental emission increase with the minimum fee being $450 and the 

maximum fee being $75,000. 

(c) Payment of fees . All permit fees for a flexible permit shall be remitted in the form of a 

check or money order made payable to the Texas Natural Resource Conservation Commission and 

delivered with the application for flexible permit or flexible permit amendment to the commission's 

New Source Review Permits 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 . 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 from Permitting) is allowed. No fees will be refunded after a deficient 

187 
application 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 . 

Qivip under my ha1~d and the sea i 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 30 TAC Chapter 116; 

Docket No. 98-0068-RUL. - 

WHEREAS, on June 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 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; 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 local air 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 of the 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 staff as 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 and their 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 of the Texas Clean Air 

Act; and 

'WHEREAS, the Commission finds that the reasoned justification and factual bases for the 

proposed amendments are fully set out in the analysis of testimony ; 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 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 

116.750 and the repeals are adopted without changes and will 

not be republished. 

The commission adopts the review of the rules contained in 30 

TAC Chapter 116, concerning Control of Air Pollution by Permits 

for New Construction or Modification . This review was adopted 

in accordance with Article IX, §167, General Appropriations Act, 

75th Legislature, 1997. 

EXPLANATION OF ADOPTED RULES. The commission adopts 

a new §116.15 and a new Subchapter 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 maximum achievable 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 

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 from that 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 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 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 reform purposes at that 

time. 

The following paragraphs describe the adopted amendments to 

Chapter 116 by 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 reform review. 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 from permitting by referring to 

30 TAC 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 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 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 . 

ADOPTED RULES July 3, 1998 23 TexReg 6973 
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 Control Technology (see 61 

FR 68399) . 

SUBCHAPTER B: NEW SOURCE REVIEW PERMITS. The 

sections in Subchapter B, New Source Review Permits, Division 1 : Permit Application (§116.110, Applicability, §116.111, 

General Application, §116.112, Distance Limitations, §116.114, 

Application Review Schedule, §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 review permitting requirements of the 

Texas Clean Air Act (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 Review Permits, 

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 reform changes. 

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 review will be required as well as provide direction for 

how that review will 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 from owners 

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 new owner. 

The commission adopts a new §116.110(e) to reflect the 

recent revisions to the Texas Engineering Practice Act (TEPA) 

which now refers 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 

23 TexReg 6974 July 3, 1998 Texas Register 
Oil and Gas Facilities, 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 CFR 

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 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 2,640 feet of 

any specified off-site receptor. The statutory provision prohibits 

the construction of a new commercial 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 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 to Subchapter 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 B of this chapter. This change was 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) 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 §116.118 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 review under Subchapter C to 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 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 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 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 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 from a state construction permit. 

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. 

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 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 

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 ., 

ADOPTED RULES July 3, 1998 23 TexReg 6975 
the permit expired and was not renewed). A historical review 

of 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 allow the 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 minimum new 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 new Subchapter 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 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 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 

program meets 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 CFR Part 63, Subpart B. 

40 CFR Part 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 program in 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 interim approval for the source 

category limited program was no longer considered to be 

effective by the EPA (that program was 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 program to 

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 now understands that EPA has reconsidered 

its position concerning the source category limited program and 

now considers it to be the approved federal operating permit 

program for 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 interim program, once the interim program 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 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 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 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 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 

23 TexReg 6976 July 3, 1998 Texas Register 
determinations 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 program consistent 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, 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 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 §§63.40-63.44 for a §112(g) program. As outlined in 

the EPA preamble to the final rules implementing §112(g) (see 

61 FR 68390), the program proposed 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 

reform changes. 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 review schedule 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 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 . 

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) now includes 

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 review under 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 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 40 CFR 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 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 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 to allow 

sources to continue to fully utilize flexible permits while meeting 

the conditions of Subchapter C. 

ADOPTED RULES July 3, 1998 23 TexReg 6977 
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 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 minimum fee. 

The $450 minimum 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 NSR permit amendments . 

REVIEW OF AGENCY RULES. The commission adopts the 

review of 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 to exist . 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 law and thus are not new requirements. 

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 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 reform as 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 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 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 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 review of 

major sources of hazardous air pollutants . This new program 

will 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 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. 

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 review of 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 "new source" should conform to 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 

"MACT emission limitation for new sources" terminology and 

definition was taken directly from Part 63. It is not the commission's intent to revise the definition of "new source" or to apply it 

in any way that differs from the 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 multiple process 

or production units . 23 TexReg 6978 July 3, 1998 Texas Register 
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 term is 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" from the 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 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), 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 TU 

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-day time period did not allow a 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) 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 now contained 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 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 of the rule, the rule has been revised to retain 

the original language. 

TIP 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 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 review of permits subject to either Prevention 

of Significant Deterioration under §§116.160-116 .163 or Nonattainment Review under §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." 

ADOPTED RULES July 3, 1998 23 TexReg 6979 
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. 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 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 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 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 appear 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 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 

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 . 

It appears that TIP believes that changing "violations" from plural 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 116 conform 

with the requirements of the TCAA and the APA. The procedures for Chapter 122 were developed in order to meet the 

requirements of 40 CFR Part 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 TU 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 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 "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. 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 CFR Part 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, the 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 . 

23 TexReg 6980 July 3, 1998 Texas Register 
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)(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 major source ." Specifically, the EPA acknowledges 

that states may use different levels of control in their air quality 

programs (e.g ., BACT, lowest achievable emission rule, or a 

state toxics program that 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 EPA commented that 

§116.182 limits the implementation of §112(g) to the sources in 

Texas covered by the Texas interim operating permit program. 

EPA noted that sources not covered by the interim program 

will also be subject to §112(g) after June 29, 1998, and will be 

required to obtain a §112(g) determination from the EPA prior 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 review by the commission 

and the EPA and recommended adopting whatever compliance 

date was necessary to avoid such duplication. 

Based on the comments received from the 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 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 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 "new facility (major source)." TIP also noted that the 

reference to "approved operating permit program" could cause 

confusion about the effective date of the §112(g) program in 

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) program is 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 30 days 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 suggested that since the 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 review process. Although this section was 

revised under the regulatory reform process, the commission 

believes adopting a new process with additional timelines for 

review of 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 language with 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 C of 

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." 

ADOPTED RULES July 3, 1998 23 TexReg 6981 
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) 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 be subject to the requirements of §116.110 of this 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. 

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 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 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)) 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 C and 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. 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 will 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)) ." 

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 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, 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 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 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 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 review of 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. 

Filed with the Office of the Secretary of State on June 18, 1998. 

TRD-9809783 

23 TexReg 6982 July 3, 1998 Texas Register 
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 

30 TAC §§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 

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 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 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 review of 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. 

§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 from acid 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 from a 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 . 

ADOPTED RULES July 3, 1998 23 TexReg 6983 
(3) Electric utility steam generating 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 system for sale shall be considered 

an electric utility steam generating 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 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 new processes 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 a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on June 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. New Source Review Permits 

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 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 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 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 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 review of 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. 

Filed with the Office of the Secretary of State on June 18, 1998. 

TRD-9809785 

Kevin McCalla 

23 TexReg 6984 July 3, 1998 Texas Register 
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 1 . Permit Application 

30 TAC §§116.110-16.112,116.114-116.118 

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 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 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 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 review of 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. 

§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 N of 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 from Permitting) . 

(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 C of 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 new owner 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 new owner; 

(C) an agreement by the new owner 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 . 

ADOPTED RULES July 3, 1998 23 TexReg 6985 
(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 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. 

§116.111 . General Application . 

In order to be granted a permit, amendment, or special permit 

amendment, the application must include : , 

(1) a completed Form PI-1 General Application signed 

by an authorized representative of the applicant. All additional 

support information specified on the form must 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 from the 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 from the 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 from the 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 from the 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 maximum achievable 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 from a 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 C of 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 . 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 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 Register 
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 program regional 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 allow representative 

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 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 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 from the 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 from any of the sources of emissions 

must not exceed the values stated on the table attached to the permit 

entitled "Emission Sources-Maximum Allowable Emission Rates ." 

(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 from Permitting). 

(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 

ADOPTED RULES 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 from any 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 Form PI-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 from a 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 from Permitting) 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 from other 

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 . 

(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 . 

23 TexReg 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 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 

(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 from other qualified 

facilities in accordance with paragraph (2) of this subsection . 

(B) The allowable emissions from facilities 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 form for each 

change. The report need not include changes previously submitted 

by PI-E form to 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 form to 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 from the 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. 

(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 form to 

the commission's New Source Review Permits Division before the 

change may occur. The change may occur after the receipt of written 

notification from the 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 of 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 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. 

ADOPTED RULES 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 

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

Compliance History 

30 TAC §§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 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 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 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 review of 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. 

Filed with the Office of the Secretary of State on 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 

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

Division 2 . Compliance History 

30 TAC §§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 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 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 facili23 TexReg 6990 July 3, 1998 Texas Register 
ties ; §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 review of 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. 

§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 or judgment ; 

(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 or judgment; 

(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) 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 . 

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-9809788 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Effective date : July 8, 1998 

ADOPTED RULES July 3, 1998 23 TexReg 6991 
Proposal publication date : March 20, 1998 

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

Division 3. Public Notification and Comment Procedures 

30 TAC §§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 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 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 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 review of 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. 

§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 the words "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 from the 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 program as 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 

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), and are not otherwise affected by 19 TAC 

§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 of Final 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 with the Office of the Secretary of State on June 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 

30 TAC §§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 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 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 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 review of 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. 

§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 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) of this section do not 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. 

Filed with the Office of the Secretary of 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 

ADOPTED RULES July 3, 1998 23 TexReg 6993 
30 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 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 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 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 review of 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. 

Filed with the Office of the Secretary of State on June 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 

30 TAC §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 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 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 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 ap23 TexReg 6994 July 3, 1998 Texas Register 
plications ; 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 review of 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. 

Filed with the Office of the Secretary of State on June 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 

30 TAC §§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 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 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 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 review of 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. 

§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 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 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 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 

(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 maximum achievable control technology 

(MACT) based on state air toxic rules for the category of pollutants 

ADOPTED RULES July 3, 1998 23 TexReg 6995 
which 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 from all 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 new process 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 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 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 new sources 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 from regulation 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. 

Filed with 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 

For further 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, 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 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 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 Register 
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 review of 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. 

Filed with the Office of the Secretary of State on June 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 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 

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 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 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 review of 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. 

§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 

maximum achievable 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)) . 

ADOPTED RULES 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 review must 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 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 confirm receipt 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 

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 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 on June 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 

30 TAC §§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 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 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 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 

23 TexReg 6998 July 3, 1998 Texas Register 
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 review of 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. 

§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 comply with the applicable 

provisions of the FCAA, §111 (concerning New Source Performance 

Standards) as listed under Title 40 Code 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 C of this chapter. 

§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 (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 from engines or turbines shall be limited to the amounts 

found in §106.4(a)(1) of this title (relating to Requirements for 

Exemption from Permitting) . 

(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 review provisions 

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 New Source Review 

Permits) instead of this subchapter if a PSD or nonattainment permit 

or a review under 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 maximum achievable 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) 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 

from Visible Emissions and Particulate Matter ; Control of Air 

Pollution from Sulfur Compounds ; and Control of Air Pollution 

from Toxic 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 from process 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 petroleum gas, 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 from the 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 new or 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 maximum short-term storage temperature . 

(A)-(E) (No change.) 

(2) (No change.) 

(c) Inspection requirements . 

ADOPTED RULES 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 10,000 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 from this 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)) below ambient 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 having jurisdiction . All piping and valves two inches 

nominal size and smaller, unless subject to federal NSPS requiring a 

fugitive VOC emissions leak detection and repair program or Chapter 

115 of this title (relating to Control of Air Pollution from Volatile 

Organic Compounds), are also exempt from this 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 Permits 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 sum of 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 Permits 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 sum of 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 view the sampling . Neither the regional office nor the 

Engineering Services Section, Office of Compliance and Enforcement 

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 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 claim a 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 New Source Review Permits) must be 

obtained for the following : 

(A)-(E) (No change.) 

(F) 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) 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 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.) 

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 

A of this 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 .) 

(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 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 (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 review upon request by representatives of the 

commission or any local air pollution agency having jurisdiction . 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 from Permitting), 

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. 

Filed with 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 

For further 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 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 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 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 apADOPTED RULES July 3, 1998 23 TexReg 7001 
plications 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 review of 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. 

§116.711 . Flexible Permit Application. 

Any application for a new flexible permit or flexible permit amendment must include a completed Form PI-1 General Application. The 

Form PI-1 must be signed by an authorized representative of the applicant. The Form PI-1 specifies additional support information which 

must be 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 from the 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 shortterm or long-term side effects that an air contaminant or nuisance 

odor from the facility, group of facilities, or account may have on the 

individuals attending these school facilities . 

(2) Measurement of emissions . The proposed facility, 

group of facilities, or account will have provisions for 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 of reducing or eliminating the emissions from the facility 

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

technology beyond BACT may be used on certain facilities to provide 

the emission reductions necessary to comply with this requirement on 

a group of facilities or account basis, provided however, that the existing level of control may not be lessened for any facility. For new 

facilities 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, 

§112(g), 40 CFR Part 63)), the use of BACT shall be demonstrated 

for the individual facility or affected source . 

(4) New Source Performance Standards (NSPS) . The 

emissions from each affected facility as defined in 40 Code of Federal 

Regulations (CFR), Part 60 will meet at least the requirements of any 

applicable NSPS as listed under Title 40 CF'R Part 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 

from each 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 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 

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 proposed facility, group 

of facilities, or account is located in a nonattainment area, each facility 

shall comply with all applicable requirements under the undesignated 

head concerning nonattainment review in Subchapter B of this chapter 

(relating to New Source Review Permits). 

(9) 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. 

(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 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 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 of this chapter, the applicant shall : 

(A) identify each air contaminant for which an 

emission cap is desired; 

permit ; 

(B) identify each facility 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 

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 maximum production 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 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-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 

Scrap Tires. The amendmenj to §330.601 and new §§330.802-

330.820 are adopted with changes to the proposed text published in the January 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 from the previously existing sections has been streamlined, clarified, and/or 

reformatted. In other areas, new requirements 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 from accepting 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 . For transporters, the registration fee is 

removed, the exemption from registration 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 

from registration 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 from the WTRF, and WTRF program reviews; §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 

ADOPTED RULES July 3, 1998 23 TexReg 7003