TECHNICAL SUPPORT DOCUMENT

July 24, 2013

30 TAC Chapter 101 – General Air Quality Rules

Subchapter A: General Rules

§ 101.28 – Stringency Determination for Federal Operating 

Permits 

No material in this submittal package was designated as Confidential Business Information.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, United States Environmental 

Protection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas, 

75202-2733, (214) 665-2115
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Subject: Review of Revisions to the State Implementation Plan – Texas Administrative 

Code Title 30, Chapter 101: General Air Quality Rules, Subchapter A: General 

Rules, Section 101.28

Contents:

I. Executive Summary

II. Technical Review

A. Part 51, Appendix V Completeness Checklists

B. Analysis of State Submittal

III. Conclusion
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I. Executive Summary

This technical support document (TSD) reviews a portion of one proposed revisions to the Texas 

State Implementation Plan (SIP) concerning stringency determinations for Federal Operating 

Permits. This review will determine if the program revision submitted on December 17, 1999, is

consistent with the requirements of the Clean Air Act and EPA’s policy and guidance and should 

be approved into the Texas SIP.

December 17, 1999

In a letter dated December 17 1999, Governor George W. Bush submitted revisions to the Texas 

SIP at Rule Log No. 99017-101-AI that were adopted by the Texas Natural Resources 

Conservation Commission (TNRCC) on December 1, 1999, and became effective on December 

23, 1999.

1 This SIP submittal included revisions to the following parts of the Texas Air Code, 

Title 30, Chapter 101:

1. Revisions to the General Air Quality Definitions at 30 TAC 101.1;

2. Revisions to Emissions Inventory Requirements at 30 TAC 101.10;

3. New provisions for Stringency Determinations for Federal Operating Permits at 30 TAC 

101.28; and

4. Revisions to Conformity of General Federal and State Actions to State Implementation 

Plans at 30 TAC 101.30.

The revisions to the General Air Quality Definitions at 30 TAC 101.1 were superceded by EPA’s 

November 14, 2001 approval of the Definitions adopted on September 26, 2001. See 66 FR 

57252.

EPA approved the revisions to the Emissions Inventory Requirements at 30 TAC 101.10 and the 

revisions to Conformity of General Federal and State Actions to State Implementation Plans at 

30 TAC 101.30 on July 23, 2010. See 75 FR 43062.

This review will be the first time EPA has evaluated the December 17, 1999, submittal of 30 

TAC 101.28. TCEQ has made no revisions to 30 TAC 101.28 since the initial adoption and 

submittal of the regulatory language as a SIP revision.

 1 Note that the Texas Natural Resource Conservation Commission (TNRCC) was a predecessor to the current Texas 

environmental agency, the Texas Commission on Environmental Quality. This analysis will identify the TNRCC 

when talking about a specific action taken by the TNRCC such as rule adoption and SIP submittal, but will generally 

refer to the TCEQ when discussing current duties of the state environmental agency.
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II. Technical Review

II.A Evaluation of the December 17, 1999 SIP Submittal with respect to the Part 51, 

Appendix V Completeness Checklist Part 51, Appendix V Completeness Checklists

The criteria for completeness determination is Appendix V to Part 51 - Criteria for determining 

the completeness of plan submissions and is outlined below: 

1.0 Purpose: This appendix V sets forth the minimum criteria for determining whether a State 

implementation plan submitted for consideration by EPA is an official submission for 

purposes of review under § 51.103.

1.1 The EPA shall return to the submitting official any plan or revision thereof which fails to 

meet the criteria set forth in this appendix V, and request corrective action, identifying 

the component(s) absent or insufficient to perform a review of the submitted plan.

1.2 The EPA shall inform the submitting official whether or not a plan submission meets the 

requirements of this appendix V within 60 days of EPA's receipt of the submittal, but no 

later than 6 months after the date which the State was required to submit the plan or 

revision. If a completeness determination is not made by 6 months from receipt of a 

submittal, the submittal shall be deemed complete by operation of law on the date 6 

months from receipt. A determination of completeness under this paragraph means that 

the submission is an official submission for purposes of §51.103.

The attached checklist outlines the basic criteria included under 2.1 and 2.2 of Appendix V.

Section 2.3 of Appendix V describes the "parallel process procedure" which EPA had previously 

adopted to expedite the review of plans. This feature, however, is being deleted from the next 

revised CFR on completeness. Therefore, it is not included in the checklist.
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SIP Completeness Checklist – December 17, 1999

Rule Log No: 99017-101-AI

When preparing a SIP revision request, the SIP reviewer should go through this list to help 

identify that the package submitted to EPA is complete. States can use the check list to assure 

SIP submittals meet Appendix V criteria.

Administrative Materials (2.1)

1. The package is sent with a formal submittal letter from the Governor or his or her 

designee requesting EPA's approval of the revision.

The SIP revision was submitted by a letter from Governor George Bush dated December 

17, 1999.

2. Evidence is included that the State has adopted the revision in the State code or body of 

regulations, or that the State has issued the permit, order, consent agreement (hereafter 

document) in final form. This evidence would include the date of adoption or final 

issuance and the effective date of revision, if different from adoption/issuance date.

The revisions were adopted by the Texas Natural Resource Conservation Commission on 

December 1, 1999, and became effective December 23, 1999.

3. Evidence is included that the State has necessary legal authority under State law to adopt 

and implement the revision, e.g., a citation of the appropriate State authority.

The authority for promulgating changes to the Texas State Implementation Plan, Chapter 

101, Subchapter A, Section 101.28 is found in Chapter 382 of the Texas Health and 

Safety Code.

4. A copy is included of the actual regulation or document submitted for approval and 

incorporation by reference into the SIP including an indication of the changes made to the 

existing approved plan where applicable. The submittal shall be a copy of the official 

State regulation document signed, stamped, and dated by the appropriate State official 

indicating that it is fully enforceable by the State. The effective date of the regulation 

document shall, whenever possible, be indicated in the document itself.

The December 17, 1999, submittal included a copy of the official State regulation 

document, signed, stamped, and dated by Robert J. Huston, Chairman of the Texas 

Natural Resource Conservation Commission.

5. Evidence is included that the State followed all the procedural requirements of its laws 

and/or its constitution in the conducting and completing the adoption/issuance of the 

plan.
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A certification signed by LaDonna Castanuela, Chief Clerk of the Texas Natural 

Resource Conservation Commission was included that demonstrated the SIP submittal 

was developed pursuant to 40 CFR 51.104.

6. Evidence is included that public notice was given of the proposed changes consistent 

with the procedures approved by EPA, including the date of publication of such notice, 

(e.g., notarized or certified copies of any public notices published in newspapers). (The 

notice should be at least 30 days prior to the public hearing(s).

Notices of public hearing were published on July 6, 1999 in the Houston Chronicle; July 

7, 1999 in the Austin American-Statesman; and July 9, 1999 in the Fort Worth StarTelegram.

7. A certification is included indicating that public hearing(s) was/were held in accordance 

with the information provided in the public notice(s) and the State's laws and 

constitution, if applicable.

A certification signed by Robert J. Huston, Chairman of the Texas Natural Resource 

Conservation Commission was included. This certification states that the public hearing 

was held pursuant to 40 CFR § 51.102(a) and that notice of the hearing was given which 

conformed to 40 CFR § 51.102(d).

8. A compilation of public comments and the State's response is included.

The SIP submittal package did include a compilation of public comments and the State’s 

responses. The Texas Natural Resource Conservation Commission received comments 

from 9 organizations during the public comment period.

Technical Support (2.2)

The State should include the following technical information in its SIP revision request package.

1. Identification of all regulated pollutants affected by the revision is included.

This is not applicable to the SIP revision under review. New section 101.28 provides 

streamlining mechanisms for title V permits – therefore the pollutants covered would be 

all regulated pollutants.

2. Identification of the locations of affected sources including the EPA 

attainment/nonattainment designation of the locations and the status of the attainment 

plan for the affected area(s) is included.

This SIP revision applies to all sources with title V permits issued by the TCEQ on a 

statewide basis.
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3. Quantification of the changes in SIP allowable emissions from the affected sources is 

included. (Examples include estimates of changes in current actual emissions from 

affected sources and/or, where appropriate, quantification of changes in actual emissions 

from affected sources through calculations of the differences between certain baseline 

levels and allowable emissions anticipated if the revisions were approved.)

Not applicable to this SIP revision. The Streamlining Provisions at 30 TAC 101.28 will 

not result in changes in SIP allowable emissions.

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration and 

visibility as applicable would be protected if the revision were approved and 

implemented.

Not applicable to this SIP revision. Section 101.28 does not establish new permit 

requirements – rather it provides a mechanism to streamline existing requirements. 

Therefore there will be no impact to the NAAQS/PSD increments/RFP demonstration or 

visibility.

5. FOR REDESIGNATIONS:

a. Is there a fully approved maintenance plan for the primary ambient air quality 

standards for at least 10 years as required by §175A of the Clean Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

(A). Modeling information, if applicable, is required to support the propose revision.

Modeling information is not necessary to support the SIP revision.

7. Evidence is included where necessary, that emission limitations are based on continuous 

emission reduction technology (e.g., add-on controls, industrial/process equipment 

designs, reformulated materials, etc.).

Evidence of emission limitations based on CEM technology is not applicable.

8. Evidence is included indicating that a SIP revision contains emission limitations, work 

practice standards, and recordkeeping/reporting requirements to ensure stated emission 

levels.
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Enforceability is determined on case-by-case basis in each individual permit.

9. Compliance/enforcement strategies including how compliance will be determined in 

practice (including at what frequency).

Determination of compliance is specified on case-by-case basis in each individual permit.

10. As appropriate, special economic and technological justifications are included per 

applicable EPA policies or an explanation why such justifications are not necessary 

should be included. For example, requests for alternative RACT may require such 

justification.

These justifications are not necessary for this SIP revision.

The SIP submittal of Rule Log No.: 99017-101-AI meets the completeness criteria.
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II.B Analysis State Submittal

30 TAC Section 101.28 provides a mechanism for a permit holder of a federal operating permit 

(Title V permit issued under 30 TAC 122) to streamline multiple applicable requirements into a 

more stringent or equivalent requirement. The TCEQ adopted these streamlining provisions as a 

result of the guidance EPA provided in our March 5, 1996 “White Paper Number 2 for Improved 

Implementation of The Part 70 Operating Permits Program” (WP2). In WP2, EPA explains that 

EPA and the state permitting authorities have developed different and often overlapping 

applicable requirements for stationary source control. This results in some emissions units at 

stationary sources being subjected to multiple requirements – some of which may be duplicative 

or contradictory. To reduce the permit burden on the sources, the state permitting authorities, and 

the EPA Regional Offices, EPA provided guidance in WP2 on how best to streamline these 

multiple requirements into one requirement that is at least as stringent as the most stringent limit. 

Generally, the streamlined monitoring, recordkeeping, and reporting requirements would 

generally be those associated with the most stringent emission limit, providing that the 

streamlined requirements would assure compliance to the same extent as the subsumed 

requirements.

The following table provides an analysis of each provision of 30 TAC 101.28 to ensure the new 

provisions are consistent with the requirements of the CAA and EPA’s policy and guidance.

30 TAC 101.28 – Stringency 

Determination for Federal Operating 

Permits.

Adopted: December 1, 1999

Effective: December 23, 1999

Submitted as a SIP Revision: December 17, 

1999

EPA’s Analysis of the Submitted SIP 

Revision

a) Instead of the requirements imposed by 

an applicable requirement or a state 

only requirement as defined in § 122.10 

of this title (relating to General 

Definitions), a permit holder of a 

federal operating permit may comply 

with more stringent or equivalent 

requirements, provided the 

requirements:

Adopted provisions at 30 TAC 101.28(c) 

are consistent with the guidance provided 

in Section II of WP2 See pages 6 – 12.

Specifically, EPA provides that a permit 

shield should be used to identify the 

otherwise applicable requirements that 

have been subsumed into the streamlined 

requirement. Further, EPA finds that “a 

permit shield will result in an essential 

degree of certainty by providing that when 

the source complies with the streamlined 

requirement, the source will be considered 

to be in compliance with all of the 

applicable requirements subsumed under 

the streamlined requirement.”

1. are established by § 

122.148(c)(l)(B) of this title 

(relating to Permit Shield) for 

streamlining multiple, duplicative, 

redundant, and/or contradicting 

applicable requirements or state 

only requirements; and

2. are adequate to assure compliance 

to the same extent as the applicable 
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requirements or state-only 

requirements being superseded by a 

more stringent or equivalent 

requirement.

b) A determination under subsection (a) of 

this section may include a method 

change (i.e., either a change to a 

commission monitoring or testing 

procedure which was previously 

approved by EPA or an alternative to 

an EPA-approved monitoring or test 

method) if approved by EPA.

Adopted provisions at 30 TAC 101.28(c) 

are consistent with the guidance provided 

in Section II of WP2. See pages 6 – 12.

c) The more stringent, equivalent, or 

alternative requirement established by 

the executive director under this section 

is approved for the emission unit by 

EPA if:

Adopted provisions at 30 TAC 101.28(c) 

are consistent with the Attachment B of 

WP2. See Section II. Example Language 

for Part 70 Sources to Establish Alternative 

SIP Requirements:

“For sources subject to an approved 

part 70 program, an alternative 

requirement is approved for the 

source by EPA if it is incorporated 

in an issued part 70 permit to which 

EPA has not objected.”

The provisions at 30 TAC 101.28(c) are 

approvable.

1. it is a term or condition of a federal 

operating permit; and

2. EPA has not objected to the permit 

as required by § 122.350 of this title 

(relating to EPA Review).

EPA submitted a comment letter on August 13, 1999, that identified no concerns with the 

adoption of 30 TAC 101.28.

The provisions adopted by the TCEQ at 30 TAC 101.28 and submitted as a revision to the Texas 

SIP on December 17, 1999, are approvable. 

Does TCEQ have the necessary legal authority to implement the provisions of 30 TAC 101.28 

as part of the SIP?

The application of penalties or obtaining corrective action, and citizen filing of lawsuits are not 

addressed in Section 101.28 of the Texas SIP. Texas enforcement provisions are not typically in 

individual rules but are separately codified. Texas Water Code Chapter 7 contains the statutory 

provisions for enforcement of the Federal Operating Permits Program. In particular, TWC § 

7.051 provides for the assessment of administrative penalties, and § 7.032 provides for injunctive 

relief. The TCEQ enforcement rule at 30 TAC § 70.5 incorporates remedies found in the state 

statutes (Texas Water Code and the Texas Health and Safety Code), and permits referrals to EPA 

for civil, judicial or administrative action. Once the rule is approved into the SIP, EPA will be 

able to enforce it under section 113 of the Clean Air Act.
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The 40 CFR part 70, CAA Title V operating permits program has been reviewed and found to 

have sufficient enforcement provisions. The Office of the Attorney General of the State of Texas 

has provided a written opinion for this program. The opinion states that TCEQ has the necessary 

legal authority to implement and enforce the Title V operating permits program. TCEQ has the 

authority to have reasonable requirements for measuring and monitoring air emissions and to 

require owners and operators of sources to make and maintain records of the emissions.

Therefore, TCEQ has the necessary legal authority to implement and enforce the minor permit 

revision procedures in accordance with the requirements of the CAA.

The Office of the Attorney General of the State of Texas cited State laws and regulations that 

regulate, at a minimum, the same sources as the Clean Air Act and do so with standards that are 

no less stringent than those specified by the CAA. The cited laws and regulations are: Texas 

Health and Safety Code Ann. sections 382.016 (Monitoring Requirements, Examination of 

Records), 382.021 (Sampling Methods and Procedures), 382.0514 (Sampling, Monitoring and 

Certification); 30 TAC sections 122.132 (Application and Required Information for Initial 

Permit Issuance, Reopening, Renewal, or General Operating Permits), 122.134 (Complete 

Application), 122.136 (Application Deficiencies), 122.142 (Permit Content Requirements), 

122.143 (General Terms and Conditions), 122.144 (Recordkeeping Terms and Conditions), 

122.145 (Reporting Terms and Conditions), 122.146 (Compliance Certification Terms and 

Conditions), 122.165 (Certification by Responsible Official; 30 TAC sections 101.8 (Sampling), 

101.9 (Sampling Ports).

What is EPA’s analysis of the Stringency Determination for Federal Operating Permits at 30 

TAC 101.28 with respect to section 110(l) of the Clean Air Act?

Section 110(l) of the Clean Air Act states: 

Each revision to an implementation plan submitted by a State under this Act shall be 

adopted by such State after reasonable notice and public hearing. The Administrator 

shall not approve a revision of a plan if the revision would interfere with any applicable 

requirement concerning attainment and reasonable further progress (as defined in 

section 171), or any other applicable requirement of this Act.

Thus, under section 110(l), this SIP revision must not interfere with attainment or reasonable 

further progress or any other applicable requirement of the Act. 

30 TAC 101.28 does not establish any new applicable requirements or emissions limitations on a 

permitted source. Rather, Section 101.28 provides a mechanism for a permit holder to streamline 

multiple, duplicative, redundant, and/or contradicting applicable requirements into a more 

stringent or equivalent method. The more stringent or equivalent method must be adequate to 

assure compliance to the same extent as the applicable requirements being subsumed. Therefore, 

because the applicable requirements being replaced were developed as part of either the Texas 

SIP approved preconstruction permitting program or the approved Texas Part 70 program for 

Title V sources – the more stringent or equivalent streamlined requirement will by nature be 
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protective of the CAA and will not interfere with attainment, maintenance or any other 

applicable requirement of the Act.

III. Conclusion

The technical analysis provided in the preceding sections has provided an adequate justification 

for the inclusion in the Texas SIP of the provisions at 30 TAC 101.28 for the Stringency 

Determination for Federal Operating Permits. These provisions were adopted and submitted as 

revisions to the Texas SIP as a direct result of EPA’s White Paper 2 for the Improved 

Implementation of the Part 70 Operating Permits Program. Further, the streamlining provisions 

will serve to reduce the permitting burden on the TCEQ and provide for more effective 

implementation of the TCEQ permit program. Therefore, it is recommended that EPA propose 

full approval of the December 17, 1999 submittal of 30 TAC 101.28. 

It is recommended that a direct final approval of section 101.28 be published. Direct final 

approvals are appropriate for non-controversial rulemakings. EPA feels that the SIP-approval of 

the December 17, 1999 SIP Submittals for the Stringency Determination for Federal Operating 

Permits is non-controversial because comparable provisions have already been approved into the 

Texas Part 70 program and have been in effect and operational since 1999, without any negative 

impact to attainment or maintenance in Texas. 

Note that the December 17, 1999, submittal of 30 TAC 101.28, and EPA’s subsequent inaction 

to evaluate and take a final action regarding SIP approvability is a specific line item in the 

January 25, 2013, Notice of Intent to File Citizen Suit submitted by the BCCA Appeal Group. 

Upon final approval, 30 TAC 101.28 would no longer be subject to the NOI.