TECHNICAL SUPPORT DOCUMENT

REVISIONS TO THE MINOR NEW SOURCE REVIEW (NSR) TEXAS STATE IMPLEMENTATION PLAN (SIP) FOR PORTABLE FACILITIES

June 10 , 2015

Revisi ons to 30 TAC Sections 116 Submitted March 19, 2010 Re vision to 30 TAC Chapter 39, submitted July 2, 2010

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

FOR FURTHER INFORMATION CONTACT: Aimee Wilson, United States Environmental Protection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue Suite 1200, Dallas, Texas 75202-2733, (214) 665-75962

Contents I. Introduction ............................................................................................................................. 3

II. Summary of Texas Relocation/Change of Location – Portable Facilities ............................... 7

III. Technical Evaluation of the Texas Portable Facilities SIP Submittals ................................ 9

A. Pa rt 51, Appendix V Evaluation of the March 19, 2010 SIP Submittal .............................. 9

B. Evaluation of the Texas Portable Facilities SIP Submittal for Minor NSR Permitting Requirements ............................................................................................................................. 13

C. CAA 110 (1) Analysis ....................................................................................................... 22

IV . Conclusion ......................................................................................................................... 223



## I. Introduction

This technical support document reviews the severable portions of two proposed revisions to the Texa s State Implementation Plan (SIP) submitted on March 19, 2010 and July 2, 2010, establishing provisions for the change of location and relocation of existing, minor NSR permitte d portable facilities at 30 TAC Sections 39.402(a)(12), 116.20, and 116.178. This review will determine if the revisions are consistent with the requirements of the Clean Air Act and the EPA’s policy and guidance.

March 19, 2010

 On March 19, 2010, the Texas Commission on Environmental Quality (TCEQ) adopted amendments t o the Texas SIP concerning Portable Facilities. The TCEQ adopted new 30 TAC Section 116.20 – Portable Facilities Definitions and established new Division 8 – Portable F acilities, with new 30 TAC Section 116.178 -– Relocations and Changes of Loc ation of Portable Facilities.

 TCEQ Chairman Bryan Shaw submitted these amendments as revisions to the Texas SIP in a letter dated March 19, 2010.

July 2, 2010

 On June 2, 2010, the TCEQ adopted amendments to the Texas SIP concerning Public Notice at 30 TAC Chapter 39; Requests for Reconsideration and Contested Case Hearings; Public Notice at 30 TAC Chapter 55; and Control of Air Pollution by Permits for New Construction or Modification at 30 TAC Chapter 116. This adoption included new 30 TAC S ection 39.402(a)(12) which establishes public notice requirements for the change of location or relocation of portable facilities.

 Chairman Bryan W. Shaw, PhD, submitted these amendments, including new 30 TAC Section 39.402(a)(12), as revisions to the Texas SIP in a letter dated July 2, 2010.

Table 1

– Summary of the Individual Revisions Evaluated in this TSD Section

– Title Date Submitted to EPA Date

Adopted by State Date Effective

as State Rule Comments

30 TAC Chapter 39

– Public Notice Subchapter H

– Applicability and General Provisions Section 39.402

– Applicability to Air Quality Permits and Permit Amendments 07/02/2010 06/02/2010 06/24/2010 New 39.402(a)(12) regarding change of location or relocation of portable facilities. 30 TAC Chapter 116

– Control of Air Pollution by Permits for New Construction or Modification Subchapter A

– Definitions Section 116.20

– Portable Facilities Definitions 03/19/2010 02/10/2010 03/03/2010 New 116.20 establishing definitions that relate to portable facilities4

Table 1

– Summary of the Individual Revisions Evaluated in this TSD Section

– Title Date Submitted to EPA Date

Adopted by State Date Effective

as State Rule Comments

30 TAC Chapter 116

– Control of Air Pollution by Permits for New Construction or Modification Subchapter B

– New Source Review Permits Section 116.178

– Relocations and Changes of Location of Portable Facilities 03/19/2010 02/10/2010 03/03/2010 New 116.178 establishes requirements for relocations and changes of locations for portable facilities

Because the EPA has taken separate action on severable portions of the submitted SIP revisions, we find it helpful to present a summary of the status of each of the submitted SIP revisions, and whether further action is needed from the EPA. Below is a table summarizing all of the provisions submitted for SIP approval on March 19, 2010 and July 2, 2010. As indicated below, the EPA has previously acted on all portions of the July 2, 2010 submittal with the exception of 30 TAC Section 39.402(a)(12).

Table 3

– Summary of the Disposition of the Submitted SIP Revisions Section Title Date Submitted Date Adopted Action by EPA 30 TAC Section 39.402(a)(1)

- (a)(6), (a)(8), (a)( 10 )

- (a)(12) Applicability to

Air Quality Permits and Permit Amendments 07/02/2010 06/02/2010 TCEQ withdrew 30 TAC Section 39.402(a)(10) on December 19, 2013. 30 TAC Sections 39.402(a)(1)

- (a)(3), and (a)(6) approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Sections 39.402(a)(4), (a)(5), (a)(8), and (a)(11) approved by EPA on March 30, 2015. See 80 FR 16573. 30 TAC Section 39.402(a)(12) under review in this TSD. 30 TAC Section 39.405(f)(3), (g), (h)(1)(A), (h)(2)

- (h)(4), (h)(6), (h)(8)

- (h)(11), (i) and (j) General Notice

Provisions 07/02/2010 06/02/2010 Approved b y EPA on January 6, 2014. See 79 FR 551.

30 TAC Section 39.407 Mailing Lists 07/02/2010 09/02/1999 Approved by EPA on January 6, 2014. See 79 FR 551.5

Table 3

– Summary of the Disposition of the Submitted SIP Revisions Section Title Date Submitted Date Adopted Action by EPA 30 TAC Section 39.409 Deadline for

Public Comment, and Requests for Reconsideration, Contested Case Hearing, or Notice and Comment Hearing 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551.

30 TAC Section 39.411(a), (e)(1)

- (4)(A)(i) and (iii), (e)(4)(B), (e)(5)(A), (e)(5)(B), (e)(6)

- (10), (e)(11)(A)(i), (e)(11)(A)(iii), (e)(11)(A)( iv), (e)(11)(B)

- (F), (e)(13), (e)(15), (f)(1)

- (8), (g), and (h) Text of Public

Notice 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551.

30 TAC Section 39.418 (a), (b)(2)(A), (b)(3), and (c) Notice of Receipt

of Application and Intent to Obtain Permit 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 39.419(e), (e)(1), and (e)(2) Notice of

Application and Preliminary Determination 07/02/2010 06/02/2010 TCEQ withdrew 30 TAC Section 39.419(e)( 3) on December 19, 2013. Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 39.420(c)(1)(A)

- (D)(i)(I) and (D)(i)(II), (D)(ii), (c)(2), and (d)

- (e) Transmittal of the

Executive Director’s Response to Comments and Decision. 07/02/2010 06/02/2010 TCEQ withdrew 30 TAC Section 39.420(h) on December 19, 2013. Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 39.601 Applicability 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 39.602 Mailed Notice 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551.6

Table 3

– Summary of the Disposition of the Submitted SIP Revisions Section Title Date Submitted Date Adopted Action by EPA 30 TAC Section 39.603 Newspaper Notice 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 39.604 Sign

- Posting 07/02/2010 06 /02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 39.605 Notice to Affected

Agencies 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 55.150 Applicability 07/02/2010 06/14/2006 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 55.152(a)(1), (a)(2), (a)(5), (a)(6), and (b) Public Comment

Period 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 55.154(a), (b), (c)(1)

- (3), (c)(5), and (d)

- (g) Public Meetings 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 55.156(a), (b), (c)(1), (e), and (g) Public Comment

Processing 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 116.20 Portable Facilities

Definitions 03/19/2010 02/10/2010 Reviewed in this TSD 30 TAC Section 116.114 Application

Review Schedule 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551. 30 TAC Section 116.178 Relocations and

Changes of Location of Portable Facilities 03/19/2010 02/10/2010 Reviewed in this TSD

.

30 TAC Section 116.194 Public

Notification and Comment 07/02/2010 06/02/2010 Approved by EPA on January 6, 2014. See 79 FR 551.7



## II. Summary of Texas Relocation/Change of Location – Portable Facilities

The Texas Commission on Environmental Quality (TCEQ) introduced revisions to the State Implementation Plan (SIP) to address definitions related to portable facilities and rules regarding the relocations and changes of locations of portable facilities. These amendments are revised in Chapter 116, Subchapters A and B and include new Sections 116.20 and 116.178. These amendments af

fect sources like concrete batch plants, rock crushing facilities, and hot mix asphalt plants. Portable facilities are considered minor sources and must apply for a minor NSR permit, which may include standard permit authorizations. The TCEQ also adopted a revision to the public notice requir ements under Chapter 39 to apply the public notice rules to the movement of portable facilities at 30 TAC Section 39.402(a)(12).

The TCEQ Air Permits Division originally provided guidance regarding the proper procedures for movements of portable facilities in 2000. This guidance was updated in 2001, 2004, 2006, and most re cently in 2008. The intent of the March 19, 2010 SIP submittal was to modify 30 TAC Chapter 116 to ensure that the commission’s rules were consistent with their previously issued guidance.

The process of applying for a portable facilities permit involves several steps which include apply ing for the initial permit as a portable facility under the SIP-approved permitting provisions at 30 TAC Sections 116.110 – 116.115 or through the Standard Permits provisions at 30 TAC Cha pter 116, Subchapter F.

Initial Portable Permit Application under Minor NSR

– Facility applies as a portable facility under the minor NSR requirements.

 Public Notice is required for the initial portable facility permit location.

 The portable facility will conduct a State BACT 1 analysis. Permit application includes a Site Specific Air Quality Analysis.

 Once permitted, other portable facilities can relocate to this location within the first two years following Public notice.

After a permit has been approved for a portable facility, the operation is assigned a permit number and the facility is required to provide notice to the TCEQ Regional Office of the intent to move the facility to a new location. Movement of portable facilities can either occur as a relo ca tion or change of location.

Relocation - A permitted facility is allowed to relocate to another location that has already gone through public notice in the past two year. No modifications are allowed with a relocation.

1 BACT is defined at 30 TAC Section 116.10(1), but this definition is not SIP-approved at this time. However, the general permit application requirements at 116.111 apply to all permit actions; specifically 116.111(a)(2)(C). 1116.111(a)(2)(C) says that all permits must go through BACT (referring to State BACT) but that Federal BACT will also apply to PSD and NNSR permit. The EPA approved 116.111 (a)(2)(C) with the Greenhouse Gas (GHG) Rule on November 10, 201 4.8

 Site has already gone through public notice for a portable facility.

 An application that includes an evaluation of State BACT as described in section 116.20(a)( 2)(C) to ensure the protection of public health and welfare must be provided to the TCEQ Regional Office.

 The TCEQ Regional Office has 12 days to review the application and can approve or deny the relocation request.

 If the Relocation is not approved, the facility may apply for a Change of Location to allow the permitted facility to move to the location with proper notice. The proposed facil ity will conduct a State BACT analysis.
Change of Location – A permitted portable facility must apply for a change of location if a portable facility has not been through public notice at the proposed new si te within the previous two years.

 Public Notice is required with a change of location.

 Permit application includes a Site Specific Air Quality Analysis. The proposed facil ity will conduct a State BACT analysis.9



## III. Technical Evaluation of the Texas Portable Facilities SIP Submittals

A. Part 51, Appendix V Evaluation of the March 19, 2010 SIP Submittal The criteria for completeness determination are found in Appendix V to Part 51 – Criteria for deter mining the completeness of plan submissions and are outlined below:

1.0 Purpose: This appendix V sets forth the minimum criteria for determining whether a State Implementation Plan submitted for consideration by the 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 the 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

re vision. 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, 2.2, and 2.3 of Appendix V.
SIP Completeness Checklist for the March 19, 2010 SIP Submittal
Administrative Materials (2.1)

1. The package is sent with a formal submittal letter from the Governor or his or her designee requesting the EPA approval of the revision.

The SIP revision was submitted by a letter from Bryan W. Shaw, PhD, Chairman of the TCEQ dated March 19, 2010. The SIP submittal was received by the EPA Region 6 Air Planning Section on March 24, 2010.

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 adoption/issuance date.
The revisions were adopted by TCEQ on February 10, 2010, and became effective on Marc h 3, 2010

. 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 is found in the Texas Clean Air Act, Chapter 382 of the Texas Health and Safety Code.10

4. A copy is included of the actual regulation or documentation submitted for approval and incorporation by reference into the SIP including an indications 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 regulations document shall, whenever possible, be indicated in the document itself.

The March 19, 2010, submittal included a copy of the official State regulation document, submitted by Chairman Shaw.

5. Evidence is included that the State followed all the procedural requirements of its law and/or its c onstitution in the conducting and completing of the adoption/issuance of the plan.
The SIP submittal package included a certification demonstrating 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 the 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 in the following newspapers on the date listed:

 Austin American-Statesmen August 31, 2009

 For t Worth Star-Telegram August 31, 2009

 Houston Chronicle August 31, 2009

 San Antonio Express-News August 31, 2009
TCEQ provided the opportunity for a public hearing in Austin, Texas on October 13, 2009.
TCEQ provided publication in the Texas Register of the proposed rulemaking (34 TexReg 6281) and public hearing notice (34 TexReg 6371) on September 11, 2009.

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.
An order adopting revisions to the SIP was included. This order states that the public hearing was conducted pursuant to Texas Health and Safety Code § 383.017, Texas Government Code Chapter 2001, and 40 CFR § 51.102.

8. A compilations of public comments and the State’s response is included.

The SIP submittal package did include a compilation of comments and the State’s response to comments. TCEQ did not receive any oral testimony during the October 13, 2009 public hearing. TCEQ received written testimony from four parties during the

comme nt period which ended on October 14, 2009.11

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.

The SIP submittal addressed revisions to the provisions related to the NSR construction permitting program; therefore, the SIP Submittal has the potential to address all regulated pollutants.

2. Identification of locations of affected sources included the EPA attainment/nonattainment designation of locations and the status of the attainment plan of the affected area(s) is included.

The provision for portable facilities in Texas Air Permitting will apply statewide.

3. Quantification of the changes in SIP allowable emission from the affected sources is included. (Examples include estimates of changes in current actual emission from affected sources and/or, where appropriate, quantification of changes in actual emission from affected sources through calculations of the differences between certain baseline levels and allowable emissions anticipated if the revisions were approved.)
Not applicable. The submitted provisions for portable facilities do not need to provide a quantification of the changes in SIP allowable emissions. The Texas Minor NSR program is separately SIP-approved to provide for the issuance of permit allowables for portable facilities; the provisions submitted to in the March 2010 rule package only address the movement of the already permitted facilities.

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.
The portable facilities provision and associated definitions do not need to include a d emonstrations that NAAQS/PSD increments/FRP demonstrations, etc. will be protective because the revision does not apply to major sources.

5. FOR RE DESIGNATIONS:

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.12

6. Modeling information, if applicable, is required to support the proposed revision.

Modeling information is not necessary to support the analysis and review of the portable facilities provision because it is not applicable to major sources.

7. Evidence is included where necessary, that emission limitations are based on continuous emissi on reduction technology (e.g., add-on controls, industrial/process equipment designs, reformulated material, etc.).
Appropriate emission limitations will be established with individual permits, however, the portable facilities provision does not apply to major sources.

8. Evidence is included indicating that a SIP revision contains emission limitations, work practice standards, and recordkeeping/reporting requirements to ensure stated emission levels.
Appropriate recordkeeping/reporting requirements will be established in each individual permit such that the necessary emission limitations, work practice standards are in place to ensure the stated emission levels. This information is not necessary for inclusion in the portable facilities provision.

9. Compliance/enforcement strategies including how compliance will be determined in practice (including what frequency).
Compliance/enforcement of the portable facilities provision will be determined on a permit by permit basis.

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 March 19, 2010 SIP submittal (Rule Project No. 2008-031-16-PR) meets the

com pleteness criteria established in 40 CFR part 51, Appendix V.

SIP Completeness Checklist for the July 2, 2010 SIP Submittal
A completeness determination for the July 2, 2010 SIP submittal was performed December 12, 2012. Per this analysis, the EPA has determined that the July 2, 2010 SIP submittal (Rule Project No. 2010-004-039-LS) meets the completeness criteria established in 40 CFR part 51, Appendix V.13



### B. Evaluation of the Texas Portable Facilities SIP Submittal for Minor NSR Permitting Requirements

The Act at Section 110(a)(2)(C) requires states to develop and submit to the EPA for approval into the state SIP, preconstruction review and permitting programs applicable to certain new and modified stationary sources of air pollutants for attainment and nonattainment areas that cover both major and minor new sources and modifications, collectively referred to as the NSR SIP. The CAA NSR SIP program is composed of three separate programs: Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NNSR), and minor NSR.

The minor NSR SIP program addresses construction or modification activities that do not emit, or have the potential to emit, beyond certain major source/major modification thresholds and thus do not qualify as “major” and applies regardless of the designation of the area in which a source is located. Any submitted SIP revision, including revisions to a minor NSR program, must meet the applicable requirements for SIP elements in Section 110 of the Act, and be consistent with all applicable statutory and regulatory requirements.
Regulations specific to minor NSR programs are contained in 40 CFR Section 51.160 – 51.164. The TCEQ ha s developed the provisions for the movement of existing, minor NSR permitted portable facilities as a component of the Texas minor NSR program; therefore, we will evaluate the portable facilities permitting regulations as submitted on March 19, 2010, against the federal requirements for minor NSR programs. The provisions of a minor NSR program must provide that the permitting authority will not permit the construction of a facility or modification that will cause a violation of applicable portions of the control strategy or interfere with attainment or maintenance of a NAAQS. To accomplish this goal, the state’s minor NSR program must include the means by which the state agency will review and take final action on proposed new construction or modification to be protective of the control strategy and NAAQS. As stated in 40 CFR 51.160, all NSR programs, including the minor NSR program, must include legally enforceable 2 procedures.
Subpart I Review of New Sources and Modifications Texas Portable Facilities Program

51.160 Legally enforceable procedures. (a ) Each plan must set forth legally enforceable procedures that enable the State or local agency to determine whether the construction or modification of a facility, building, structure or installation, or combination of these will result in

– (1) A violation of appli cable portions of the control strategy; or (2) Interference with attainment or maintenance of a national standard in the State in which the proposed source (or The Texas Minor NSR Permitting program is SI P

- approved. 30 TAC Section 116.111(a)(2)(A) requires that the application for a permit or permit amendment must demonstrate protection of public health and welfare. 30 TAC Section 116.111(a)(2)(A)(i) requires that emissions from the proposed facility will comply with all rules and regulations of the TCEQ and the TCAA. The Texas Portable Facilities Program follows the requirements of the Texas Minor Permitting

2 A requirement is ‘‘legally enforceable’’ if some authority has the right to enforce the restriction. 67 FR 80186, at 80190.14

modification) is located or in a neighboring State. Program and must follow 30 TAC Section 116.111. Therefore, since 30 TAC Section 116.111 has been f

ound to satisfy the requirements of 40 CFR 51.160(a) through SIP approval, the Texas Portable Facilities Program does as well. (b) Such procedures must include means by which the State or local agency responsible for final decision

- making on an applicatio n for approval to construct or modify will prevent such construction or modification if

— (1) It will result in a violation of applicable portions of the control strategy; or (2) It will interfere with the attainment or maintenance of a national standard. As the m inor NSR permitting authority in Texas, the TCEQ has established the criteria by which m inor NSR permits will be issued. These criteria (SIP

- approved at 30 TAC Section 116.111(a) include the requirement that the applicant demonstrate that emissions f rom the facility comply with all rules and regulations necessary to protect human health and the environment. The TCEQ has the authority to receive application materials and review these materials for technical merit. If the technical justifications for th e permit application are not valid, then the TCEQ has the authority to not issue the permit. EPA approved these m inor NSR permitting provisions as appropriate to protect the NAAQS, consistent with 40 CFR 51.160(b) and the CAA when we SIP

- approved the

m inor NSR program. (c) The procedures must provide for the submission, by the owner or operator of the building, facility, structure, or installation to be constructed or modified, of such information on

– (1) The natures and amounts of emissions to be emitte d by it or emitted by associated mobile sources; (2) The location, design, construction, and operation of such facility, building, structure, or installation as may be necessary to permit the State or local agency to make the determination referred to in p aragraph (a) of this section. M inor NSR permit applications are subject to both first notice (NORI) and second (NAPD) notice. Public Notice is required for the initial portable facility permit location and for changes of location

. The TCEQ permit applicati on requires all the information required by 40 CFR 51.160(c) . Additionally, as the minor NSR permitting authority in Texas, the TCEQ has the authority to request any additional information necessary to properly review a permit application and make a decisi on on said application. (d) The procedures must provide that approval of any construction or modification must not affect the responsibility to the owner or operator to comply with applicable portions of the control strategy. EPA SIP

- approved the general and special conditions for Chapter 116. T he Texas Minor NSR program is SIP

- approved with the necessary legally enforceable procedures providing that approval of any construction or modification does not affect the owner/operator’s responsibility to comply with applicable portions of the control strategy. 30 TAC Section 116.115 satisfies15 the requirements of 40 CFR 51.160(d) ; therefore so does the Texas Portable Facilities Program. (e) The procedures must identify types and sizes of facilities, buildi ngs, structures, or installations which will be subject to review under this section. The plan must discuss the basis for determining which facilities will be subject to review. T he General Application provisions at 30 TAC 116.111(b) provide that m inor NSR applications that are administratively complete after September 1, 1999 comply with the Chapter 39 Public Notice requirements. The TCEQ has the authority to receive application materials and review these materials for technical merit. EPA approved the m inor NSR permitting provisions as appropriate to protect the NAAQS, consistent with 40 CFR 51.160(b) and the CAA when we SIP

- approved the m inor NSR program. 30 TAC Section 116.111 satisfies the requirements of 40 CFR 51.160(e) ; therefore, so does the Texa s Portable Facilities Program. (f) The procedures must discuss the air quality data and dispersion or other air quality modeling used to meet the requirements of this subpart (1) All applications of air quality modeling involved in this subpart shall be b ased on the applicable models, data bases, and other requirements specified in appendix W of this part (Guideline on Air Quality Models). (2) Where an air quality model specified in appendix W of this part (Guideline on Air Quality Models) is inappropriate , the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case

- by

- case basis or, where appropriate, on a generic basis for a specific State program. Written approval of the Administrator must be obtained for any modification or substitution. In addition, use of a modified or substituted model must be subject to notice and opportunity for public comment under procedures set forth in § 51.102. EPA SIP

- approved the General Application ( 30 TAC Sect ion 116.111) provisions for the Texas NSR permit program on August 28, 2007, as adopted by the TCEQ on August 21, 2002 (see 72 FR 49198). The p ermit application includes a Site Specific Air Quality Analysis. M inor NSR permit applications are subject to both NORI and NAPD notice

– therefore any technical information such as dispersion modeling or source impact analysis will be available for public review and comment. 30 TAC Section 116.111 continues to satisfy the requirements of 40 CFR 51.160( f) ; therefore, so does the Texas Portable Facilities Program.

In the September 23, 1987, Memorandum from J. Craig Potter, Assistant Administrator for Air and Radiation, and Thomas L. Adams Jr., Assistant Administrator for Enforcement and Compliance Monitoring entitled “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency” is the EPA’s additional guidance for interpreting the16

enforceability requirements found in Section 110(a)(2)(C) of the Act and 40 CFR 51.160. 3

, 4 In the 1987 memorandum we explain that submitted rules that are clearly worded, clear as to who must comply, and explicit in their applicability to regulated sources are appropriate means for achieving the statutory enforcement requirement. Appropriate testing, recordkeeping, reporting, and monitoring provisions are necessary to establish how compliance will be determined and be sufficient to ensure that the NAAQS and PSD increments are protected.
In accordance with 30 TAC 116.20(2), the definition of a portable facility states that the facility shall not exceed the major source thresholds stated in 40 CFR 51.166(b)(1). It also requires a portable facility to be designated with a portable permit number, portable registration number, or portable account number. It also prohibits a portable facility authorization at an account that is subject to a PSD and Nonattainment permit under 30 TAC Chapter 116, Subchapter B, Divisions 5 and 6. Thus, only a true minor source may be considered a portable facility. In addition 30 TAC 116.178(a) provides further requirements for facilities seeking authorization as a portable facility.
In accordance with 30 TAC 116.111, sources seeking authorization as a portable facility are required to submit a form PI-1 General Application Form to TCEQ, which is to include information reg arding the proposed project to be authorized (e.g., emission estimates, description of project and related process, description of equipment). 30 TAC 116.115 includes general conditions that must be met by sources authorized by a case- by -case NSR permit, including the portable facilities permit. These general conditions specifically require that sources authorized under an NSR permit comply with the Texas Clean Air Act. In the case where more than one state or federal rule of regulation or permit condition are applicable, the source must comply with the most stringent requirement or limit. See 30 TAC 116.115(b)(2)(H)(ii). In addition, portable facilities may also obtain authorization through a standard permit. EPA approved Texas’ general regulations for Standard Permit in 30 TAC Subchapter F of 30 TAC Chapter 116 on November 14, 2003 (68 FR 64543) as meeting the federal requirements of minor NSR. A facility that qualifies for a minor NSR Standard Permit must also comply with all applicable provisions of section 111 of the Act (NSPS) and section 112 of the Act (NESHAP). Furthermore, a facility that qualifies for a minor NSR Standard Permit must comply with all rules and regulations of TCEQ. Therefore, the conditions of the portable facilities permit in no way supersede or relax other

3 Other relevant guidance includes: “Approaches to creating Federally-Enforceable Emissions Limits,” John S. Seitz, November 3, 1993; January 25, 1995 Memorandum entitled “Guidance on Enforceability Requirements for Limiting Potential to Emit through SIP and section 112 rules and General Permits” from Kathie A. Stein, Office of Enforcement and Compliance Assurance; and “Potential to Emit (PTE) Guidance for Specific Source Categories” Memorandum from John S. Seitz, OAQPS, and Eric Schaffer, OECA, April 14, 1998.

4 Practical enforceability for a source-specific permit will be achieved if the permit’s provisions specify: (1) A technically-accurate limitation and the portions of the source subject to the limitation; (2) the time period for the limitation (hourly, daily, monthly, and annual limits such as rolling annual limits); and (3) the method to determine compliance, including appropriate monitoring, recordkeeping, and reporting. For rules and general permits that apply to categories of sources, practicable enforceability additionally requires that the provisions: (1) Identify the types or categories of sources that are covered by the rule; (2) where coverage is optional, provide for notice to the permitting authority of the source’s election to be covered by the rule; and (3) specify the enforcement consequence s relevant to the rule. (See memorandum, “Release of Interim Policy on Federal Enforceability of Limitations on Potential to Emit,” signed by John Seitz and Robert Van Heuvelen, Jan. 22, 1996 at 5–6 and Attachment 4.) The Agency has frequently used the term “practicably enforceable” and “practical enforceability,” interchangeably. There is no difference in the meaning of these terms. ‘‘Enforceable as a practical matter’’ will be achieved if a requirement is both legally and practically enforceable. 67 FR 80186, at 80190- 91.17

applicable state or federal requirements. The portable facility is subject to State BACT and the permit also conta ins “relocation conditions” which typically contain control requirements and distance limitations.
Federal requirements for public notice of minor NSR programs are found at 40 CFR 51.160 and 51.161. The procedures for a minor NSR program in 40 CFR 51.160 require an opportunity for public c omment on information submitted by the permit applicant and on the permitting authority’s analysis of the application, submitted materials and proposed approval or disapproval of the permit application. The EPA further explains at 40 CFR 51.161(b) that opportunity for public comment is, at a minimum, the availability for public inspection in at least one location in the area affected of the information submitted by the owner/operator and of the permitting authority’s analysis of the effect on air quality; a 30-day period for submittal of public comment; and a notice by prominent advertisement in the area affected of the location where the public can see the submitted materials and analysis.
The provisions under review at 30 TAC Sections 116.20 and 116.178 do not establish a new minor source permit. Rather, these provisions enable an existing minor NSR portable facility to move in accordance with the issued permit. The change of location and relocation of a portable facility do not change any conditions of the underlying permit and do not constitute a new minor source permit. As such, the change of location and relocation of a portable facility is not required to have minor NSR public notice under 40 CFR 51.160 and 51.161. Include something like what is in the FRN about the change being beyond the scope and relocations being consistent with federal requirements.
Based on our evaluation of the proposed provisions found in the portable facilities program, in conjunction with the underlying SIP-approved provisions of the Texas Minor NSR Permitting Program found in Chapter 116, we propose to find that the portable facilities program meets the requirements that are applicable to minor NSR.
Summary of Substantive Changes in SIP Revision for 30 TAC § 116 Control of Air P ollution by Permits for New Construction or Modification

Annotat ion and Evaluation of § 116.20 Portable Facilities Definitions Comments

§ 116 .20. Portable Facilities Definitions. Unless specifically defined in the Texas Clean Air Act 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 that are defined by the Texas Clean Air Act, and in §101.1 o f this title (relating to Definitions), the following words and terms, when used in Subchapter B, Division 8 of this chapter (relating to Portable Facilities), have the following meanings, unless the context clearly indicates otherwise. Introductory paragr aph is approvable as providing a summary for the basis of the rule.

(1) Change of location

- The process of gaining approval and moving a permitted facility and associated sources to a new location in which public notice is required, in accordance with Section 116.20(1) is approvable. This section meets the m inor NSR

r equirements and include s public notice.18

Annotat ion and Evaluation of § 116.20 Portable Facilities Definitions Comments

the requirements of Chapter 39, of this title (relating to Public Notice). (2) Portable facility

- A facility authorized by a permit containing spe cial conditions that allow the facility to relocate. Portable facilities are authorized by the Texas Commission on Environmental Quality, Air Permits Division. To be a portable facility, the facility shall not exceed the major source thresholds states in 4 0 Code of Federal Regulations (CFR) §51.166(b)(1) and the permit for that facility shall be is designated with a portable permit number, portable registration number, or portable account number. The portable facility cannot be located at an account that is subject to the requirements for Prevention of Deterioration and Nonattainment permits under Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Review Permits and Prevention of Significant Deterioration Review). These por table designations are used to facilitate the relocation of these types of facilities under specific criteria, and are not authorized under Chapter 106 of this title (relating to Permits by Rule). Section 116.20( 2) is approvable.

(3) Project

- A public works contract or series of contracts for segments of work within close proximity to each other. Section 116.20(3) is approvable.

(4) Related project segments

- For facilities on a Texas Department of Transportation right

- of

- way, related project segment s are one contract with multiple project locations or one contractor with multiple contracts in which separate project limits are in close proximity to each other. A facility that is sited on the right

- of

- way is usually within project limits. However, a fa cility located at an intersection or wider right

- of

way outside project limits is acceptable if it can be easily associated with the project. Section 116.20(4) is approvable. This sect ion clarifies that public works projects do not need to go to public not ice.

(5 ) Relocation

- The process of gaining approval and moving a facility and associated sources to an approved site in which no public notice is required under Chapter 39 of this title (relating
to Public Notice)

. Section 116.20( 5) is approvable because the portable facility designated for relocation has provide d public notice within the past two years for a portable facility at the new location

. (6) Right

- of

- way of a public works project

- Any public works project that is associate d with a right

- of

- way. Examples of right

- of

- way public works projects are public highways and roads, water and sewer pipelines, electrical transmission lines, and other similar works. A facility must be in or contiguous to the right

- of

- way of the public wo rks project to be exempt from Section 116.20(6) is approvable

. TCEQ has demonstrated that the portable facility can be moved to the right

- of

- way, or contiguous to the right

- of

- way, of a public works project without additional impacts expected at the new location.19

Annotat ion and Evaluation of § 116.20 Portable Facilities Definitions Comments

the public notice requirements listed in Texas Health and Safety Code, §382.056. (7) Site

- As defined in §122.10 of this title (relating to General Definitions). Section 116.20(7) is a pprovable.

(8) Temporary facility

- A facility that will occupy a designated site for not more than 180 consecutive days or that will supply material (such as concrete, hot mix asphalt, crushed rock, etc.) for a single project (single contract or sam e contractor for related project segments), but not other unrel ated projects. Section 116.20(8) is approvable.

Annotation and Evaluation of §116.178 Relocations and Changes of Location of Portable Facilities Comments

(a) Portable facility requirements. The following requirements apply to portable facilities. (1) A portable permit must be authorized by the executive director and designated with the appropriate portable permit, portable registration, or portable account number. Section 116.178(a)(1) is approvable. The initial portable permit application is submi tted under 30 TAC 116.111 (2) An applicant shall not use a permit by rule or standard permit authorization as a waiver of public notice (public notice requirements as specified in subsection (b)(2) of this section) regardless of the registration number or account code assigned by the executive director. A facility authorized by the Air Quality Standard Permit for Concrete Batch Plants or concrete batch plant permits by rule for which an applicant provided public notice is an exception. Section 116.178(a) (2) is approvable.

(3)The executive director will not convert a permanent facility permit number to a portable designation unless the owner or operator is requesting a change of location as defined in §116.20 of this title (relating to Portable Faciliti es Definitions) for the facility. The permit holder must publish notice for any change in an existing permit number. The notice must identify the new permit number and the proposed location. Section 116.178(a)(3) is approvable.

(b) Relocation qualificatio ns. The appropriate regional office may approve the relocation of a portable facility if the applicant's permit contains current special conditions defining the approval process to move. A relocation application cannot include a modification. Approval for relocation is based on one of the following conditions: Section 116.178(b) is approvable because each site designated for relocation has provided public notice within the past two years.

(1) a permitted portable facility and associated equipment are movi ng to a site for support of a public works project in which Section 116.178(b)(1) is approvable.20

Annotation and Evaluation of §116.178 Relocations and Changes of Location of Portable Facilities Comments

the proposed site is located in or contiguous to the right

- of

way of the public works project; or (2) a portable facility is moving to a site in which a porta ble facility has been located at the site at any time during the previous two years and the site was subject to public notice as required under Chapter 39 of this title (relating to Public Notice), the Air Quality Standard Permit for Concrete Batch Plants, or the concrete batch plant permits by rule. Section 116.178(b)(2) is approvable because each site designated for relocation has provided public notice within the past two years.

(c) Relocation request requirements. The permit holder shall submit a comp lete written request to the appropriate commission regional office for the new location and obtain written approval before the start of construction and commencement of operations at the new site. The permit holder is responsible for providing proof of sub mittal for all relocation requests. Construction may begin after receipt of approval from the appropriate commission regional office or 12 business days after the date of postmark or the date of personal delivery of the request, whichever occurs first, unl ess disapproval is sent within the 12 business days. The permit holder's request is considered approved if the appropriate regional office does not provide approval or denial of a complete submittal within 12 business days; however, the presumed approval d oes not exempt the applicant from ensuring that public notice was accomplished at the new site as required under Chapter 39 of this title. The relocation request shall contain all of the following information: Section 116.178(c) is approvable.

The 30 day public notice requirements are met when the original permit for the p ortable facility is submitted. Subsequently, the portable facility is required to submit a relocation request to the TCEQ Regional Office ; there are 12 business days for the approval or disapproval of the request.

(1) the company name, address, company contact, and telephone number; Section 116.78(c)(1) is approvable.

(2) a copy of the existing permit conditions and the maximum allowable emission rates table that is in effect for the permitted facility; Section 116.178(c)(2) is approvable.

(3) the regulated entity number (RN), customer reference number (CN), applicable permit or registration numbers, and, if available, the Texas Commission on Environmental Quality account number; Section 116.178(c)(3) is approvable.

(4) the location from which the facility is moving (current location); Section 116.178(c)(4) is approvable.

(5) a location description of the proposed site (city, county, and exact physical location description); Section 116.178(c)(5) is approvable.

(6) a scaled plot plan that identifies the location of all equipment and stockpiles, and also indicates that the required distances to the property lines can be met; Section 116.178(c)(6) is approvable.

(7) a scaled area map that identifies the distance and direction to the closest off

- property receptor (if required) and clearly Section 116.178(c)(7) is approvable.21

Annotation and Evaluation of §116.178 Relocations and Changes of Location of Portable Facilities Comments

indicates how the proposed site is contiguous or adjacent to the right

- of way of a public works project (if required); (8) the proposed date for start of construction and expected date for start of operation; Section 116.178(c)(8) is approvable.

(9) the expected time period at the proposed site; Section 116.178(c)(9) is approvable. (10) the permit o r registration number of the portable facility that was located at the proposed site any time during the last two years, and the date the facility was last located there. This information is not necessary if the relocation request is for a public works pro

ject that is contiguous or adjacent to the right

of

- way of a public works project; and Section 116.178(c)(10) is approvable because the site designated for relocation has provided public notice within the past two years.

(11) proof that the proposed site had accomplished public notice, as required by Chapter 39 of this title. This proof is not necessary if the relocation request is for a public works project that is contiguous or adjacent to the right

- of

- way of a public works projec t. Section 116.178(c)(11) is approvable.

(d) Denial of relocation. If the permit holder cannot qualify for a relocation, as described in subsection (c) of this section, the appropriate regional office shall deny the relocation request and the applicant may request a change of location, as defined in §116.20 of this title. Section 116.78(d) is approvable.

(e) Requesting changes to relocation instructions. A per mit holder shall request from the executive director a permit alteration, as defined in §116. 116(c)( 1)(B) of this title (relating to Changes to Facilities), to update relocation instructions. The permit holder may apply for a relocation simultaneously with the alteration. The permit holder shall obtain written approval before the start of construc tion and commencement of operations at the new site and shall not assume approval within 12 businesses days. The permit holder shall submit the following information for any alteration request and relocation application to the TCEQ Central Office in Austi n, Air Permits Division: Section 116.178(e) is approvable because each site designated for relocation has provided public notice within the past two years.

(1) the required form and attachments, including a detailed plot plan and area map; and Section 1 16.178(e)(1) is approvable.

(2) a copy of th e current permit. Section 116.178(e)(2) is approvable. (f) Requesting changes of location. For a change of location application, the permit holder shall submit the required form and attachments to the TCEQ Ce ntral Office in Austin, Air Permits Division. All applications must include an evaluation of best available control technology and protection of public health and welfare as described in §116.111(a)(2)(C) of this title (relating to General Application). Se ction 116.178(f) is approvable because a change of location requires public notice and is treated as a new permit authorization.22



### C. CAA 110 (1) Analysis

CAA Section 110(1) requires that a SIP revision be submitted to EPA be adopted after reasonable notice and public hearing. Section 110(1) also requires that we not approve a SIP revision if the revision would interfere with any applicable requirement of the CAA.

Section 110(1) 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 requirements concerning attainment and reasonable further progress (as defined in Section 171), or any other applicable requirement of this act.

The EPA has evaluated the March 19, 2010 and July 2, 2010 revisions pertaining to Portable Facilities under section 110(l) of the Act. Our evaluation indicates that Texas adopted the March 19, 2010 and July 2, 2010, SIP revisions after reasonable public notice and an opportunity for a public hearing. Therefore, we conclude that the TCEQ satisfied all procedural requirements for SIP development. Further, the EPA has preliminarily determined that the submitted revisions to the Portable Facilities SIP revisions satisfy the minimum requirements for a minor NSR program, including adequate provisions for legal enforceability and public participation to ensure protection of the control strategy and any applicable NAAQS. The Portable Facilities program also contains sufficient safeguards to prevent circumvention of Major NSR permitting requirements. Therefore, we find that the submitted revisions to the minor NSR Portable Fac ilities program is protective of the NAAQS, increment, attainment and reasonable further progress, and any other applicable control strategy requirements and will therefore satisfy the requirements of 110(l) of the Act.



## IV . Conclusion

We have evaluated the SIP submissions for whether they meet the Act and 40 CFR Part 51, and are consistent with EPA’s interpretation of the relevant provisions. Based upon our evaluation, the EPA is preliminarily determining that the March 9, 2010 and July 2, 2010, SIP revision submittals for

portable facilities and public participation for portable facilities meet the applicable requirements of the Act and 40 CFR Part 51.
The EPA’s minor NSR regulations require public notice for each minor NSR permit. Because neither the change of location or relocation of a portable facility results in a new minor NSR permit than the permit that was originally public noticed, there is no specific federal requirement for a new public notice. Relocations of portable facilities with minor NSR permits can occur since there is no underlying change to the permit terms and conditions and the TCEQ evaluates each requested relocation for adverse environmental impacts on attainment or maintenance of the NAAQS or increment violations.23

Based on our evaluation, we recommend proposing to find that the Portable Facilities Permit provisions found in 30 TAC 116.178, and the new definitions included at 30 TAC 116.20, provide for the necessary procedures and applicable requirements that are required for minor permitting programs.