Bryan W. Shaw, Ph.D., Chairman 

Carlos Rubinstein, Commissioner 

Toby Baker, Commissioner 

Zak Covar, Executive Director 

RECEIVED 

12 SEP -~ PM 6: 32 

PEruil-S SECTION 

TEXAS COMMISSION ON ENVIRONMENTAL ~~Al::lS!fb-R 

Protecn.'ng Texas by Reducing and Preventing Pollution 

August 29, 2012 

Mr. Samuel Coleman 

Acting Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mr. Coleman: 

Docket No. 2011-2229-RUL 

91 7108 2133 3935 1971 0014 

On July 25, 2012, the Texas Commission on Environmental Quality (Commission) adopted 

revisions to the State Implementation Plan (SIP). 

The Commission adopted amendments to §§ 116.12, 116.150, 116.151, 116.180, and 116.186 of 

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

Modification. The amended sections are intended to resolve outstanding issues related to the 

disapproval of the Commission's New Source Review SIP issued by EPA on September 23, 

2009. 

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete 

record of the public hearing, and the accompanying order. In addition, the hearing book 

contains a copy of a letter sent by TCEQ Executive Director, Zak Covar to Carl Edlund dated 

May 3, 2012 that addresses several issues as requested by EPA Region 6. I look forward to 

your expeditious approval of these SIP revisions. 

Sincerely, ~ 

!:.~~ Chai~3 .. ~:0 BWS/bc 

Enclosures 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq.texas.gov /customersurvey 
cc: The Honorable Rick Perry, Governor of Texas 

Mr. Jonathan Stinson, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Zak Covar, Executive Director, Texas Commission on Environmental Quality 
Docket No. 2011-2229-RUL 

THE STATE OF TEXAS 

COUN1YOFTRAVIS 

This is to certify that the attached electronic file is included and that the electronic file is a 

true and correct copy of documents for a revision to the Texas State Implementation Plan, 

adopted on July 25, 2012, pursuant to 40 Code of Federal Regulations § 51.104. I am the 

records administrator for the Air Permits Division of the Texas Commission on 

Environmental Quality (Commission). 
Texas Commission on Environmental Quality 

Public Hearing 

March 29, 2012 

30 TAC Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Project No. 2012-015-116-AI 

New Source Review Reform Revisions 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin 

on March 29, 2012, to receive testimony regarding revisions to 30 TAC Chapter 116, Control of 

Air Pollution by Permits for New Construction or Modification; and corresponding revisions to 

the Texas state implementation plan (SIP). 

The amendments to §§116.12, 116.150, 116.151, 116.180, and 116.186 address issues identified 

by the U.S. Environmental Protection Agency in order to facilitate approval of these sections as 

part of the Texas SIP. The amendments remove a reference to flexible permits in the definition of 

plant-wide applicability limit, add references to relevant federal terminology and rule citations, 

and add language stating that failure to use monitoring required in a plant-wide applicability limit 

permit would render that permit invalid. 

The comment period closed on April9, 2012. All testimony and comments have been reviewed 

and seriously considered. This hearing record contains a complete record of the public hearing 

and is divided into the following four sections: 

• Public Notification and Proposal 

• Written and Oral Testimony 

• Evaluation of Testimony 

• Staff Recommendations 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 

35 Circle, Austin, Texas 78753. For further information, contact Michael Wilhoit at (512) 239-

1222. 
Notice & 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 

Fort Worth Star-Telegram 

Houston Chronicle 

February 27, 2012 

February 27, 2012 

February 27, 2012 

2. Publication of the public hearing notice in the Texas Register on March 9, 2012 (37 

TexReg 1811). 

3. Publication of the proposed rules in the Texas Register on March 9, 2012 (37 TexReg 

1661). 

4. 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 

Fort Worth Star-Telegram 

February 27, 2012 
Notice of Public Hearings on a Proposed Revision to 30 TAC 

Chapter 114 and Revision to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct public hearings to receive testimony regarding a proposed 

amendment to 30 Texas Administrative Code (TAC) Chapter 114, 

Subchapter J, Division 2, Locally Enforced Motor Vehicle Idling 

Limitations and revision to the state implementation plan (SIP), under 

the requirements ofTexas Health and Safety Code (THSC), §382.017; 

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code 

of Federal Regulations §51.102 of the United States Environmental 

Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemaking would implement Senate Bi11493, 82nd Legislature, 2011, amending THSC, Chapter 382, Subchapter B by adding 

§382.0191, which prohibits the commission from limiting the idling 

of a motor vehicle that has a gross vehicle weight rating greater than 

14,000 pounds and that is equipped with a 2008 or subsequent model 

year heavy-duty diesel engine or liquefied or compressed natural gas 

engine that has been certified by the EPA or a state environmental 

agency to emit no more than 30 grams of nitrogen oxides emissions 

per hour when idling. 

The commission will hold public hearings on these proposals in Austin 

on April 2, 2012, at 2:00p.m., in Building E, Room 201S at the commission's central office located at 12100 Park 35 Circle; and in Fort 

Worth on April 3, 2012, at 2:00p.m., at the Texas Commission on Environmental Quality Dallas Regional Office, 2309 Gravel Drive. The 

hearings are 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 be permitted 

during the hearings; however, commission staff members will be available to discuss the proposal 30 minutes prior to each hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearings should contact Sandy 

Wong, Office of Legal Services, at (512) 239-1802. Requests should 

be made as far in advance as possible. 

Comments may be submitted to Charlotte Hom, MC 205, Office of Legal Services, Texas Commission on Environmental 

Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed 

to (512) 239-4808. Electronic comments may be submitted at: 

http://www5. tceq. texas.gov/rules/ecomments! File size restrictions 

may apply to comments being submitted via the eComments system. 

All comments pertaining to the rulemaking should reference Rule 

Project Number 2011-060-114-EN. The comment period closes April 

9, 2012. Copies of the proposed rulemaking can be obtained from 

the commission's Web site at http://www.tceq.texas.gov/nav!rules/propose _adopt. htm/. For further information, please contact Holly 

Brightwell, Air Quality Planning Section, at (512) 239-4905. 

TRD-201201124 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: February 24, 2012 

• • • 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 116 and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 116, Control 

of Air Pollution by Permits for New Construction or Modification, 

§ § 116.12, 116.150, 116.151, 116.180, and 116.186, and corresponding revisions to the state implementation plan (SIP) under the requirements of Texas Health and Safety Code, §382.017; Texas Government 

Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 of the United States Environmental Protection Agency 

(EPA) concerning SIPs. 

The proposed rulemaking would remove a reference to flexible permits 

in the definition of plant-wide applicability limit, include references 

to federal terminology, and state that the failure to use monitoring required in a plant-wide applicability limit permit would render that permit invalid. 

The commission will hold a public hearing on this proposal in Austin 

onMarch29, 2012, at 10:00 a.m. in BuildingERoom201S, at the commission's central office located at 12100 Park 35 Circle. 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 be permitted during the 

hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing should contact Sandy 

Wong, Office of Legal Services, at (512) 239-1802. Requests should 

be made as far in advance as possible. 

Written comments may be submitted to Michael Parrish, MC 205, 

Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed 

to (512) 239-4808. Electronic comments may be submitted at: 

http://www5. tceq. texas.govlru/es/ecomments! File size restrictions may apply to comments being submitted via the eComments 

system. All comments should reference Rule Project Number 

2012-015-116-AI. The comment period closes April 9, 2012. Copies 

of the proposed rulemaking can be obtained from the commission's 

Web site at http://ww~. tceq. texas.gov!nav/rules/propose _adopt.htm/. 

For further information, please contact Blake Stewart, Air Permits 

Division, (512) 239-6931. 

TRD-201201123 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: February 24, 2012 

• • • 

Notice of Receipt of Application and Intent to Obtain a 

Municipal Solid Waste Permit 

Proposed Permit No. 2379 

APPLICATION. Liquitek, LLC (Liquitek Arlington Liquid Waste 

Processing Facility), P.O. Box 470383, Fort Worth, Tarrant County, 

Texas 76147, has applied to the Texas Commission on Environmental 

Quality (TCEQ) for a new Type V MSW permit to authorize a liquid 

waste dewatering facility. The facility is located at 408 113th Street, 

Arlington, Tarrant County, Texas 76011. The TCEQ received the 

application on January 26, 2012. The permit application is available 

for viewing and copying at the George W. Hawks Central Library, 

101 East Abram Street, Arlington, Tarrant County, Texas 76006. 

The following link to an electronic map of the site or facility's 

general location is provided as a public courtesy and is not part 

of the application or notice: http://www.tceq.texas.gov/assets/publiclhb61 O/index.html?lat=32. 7 448&lng=-97 .0432&zoom= 13&type=r. 

For exact location, refer to application. 

ADDITIONAL NOTICE. TCEQ's Executive Director has determined 

the application is administratively complete and will conduct a techniIN ADDITION March 9, 2012 37 TexReg 1811 
General Powers; TWC, §5.1 03, Rules; and TWC, §5.1 05, 

General Policy, which provide the commission with the general 

powers to carry out its duties and authorize the commission to 

propose rulemaking necessary to carry out its powers and duties 

under the TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various 

statutory programs. The amendment is also proposed under 

Texas Health and Safety Code (THSC}, §382.017, Rules, which 

authorizes the commission to propose rules consistent with the 

policy and purposes of THSC, Chapter 382 (the Texas Clean 

Air Act), and to propose rules that differentiate among particular 

conditions, particular sources, and particular areas of the state. 

The amendment is also proposed under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose 

to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; 

THSC, §382.003, concerning Definitions; THSC, §382.011, 

General Powers and Duties, which authorizes the commission 

to control the quality of the state's air; THSC, §382.012, State 

Air Control Plan, which authorizes the commission to prepare 

and develop a general, comprehensive plan for the control of 

the state's air; THSC, §382.019, Methods Used to Control and 

Reduce Emissions From Land Vehicles, which provides the 

commission the authority to propose rules to control and reduce 

emissions from engines used to propel land vehicles; and 

THSC, §382.208, Attainment Program, which authorizes the 

commission to develop and implement transportation programs 

and other measures necessary to demonstrate attainment and 

protect the public from exposure to hazardous air contaminants 

from motor vehicles. 

The proposed amendment implements SB 493, which established THSC, §382.0191. 

§114.517. Exemptions. 

The provisions of § 114.512 of this title (relating to Control Requirements for Motor Vehicle Idling) do not apply to: 

(1) a motor vehicle that has a gross vehicle weight rating 

of 14,000 pounds or less; 

Q2 [(2)] the primary propulsion engine of a motor vehicle 

being used to provide air conditioning or heating necessary for employee health or safety in an armored vehicle while the employee remains inside the vehicle to guard the contents or while the vehicle is 

being loaded or unloaded; 

ill [f-B] a motor vehicle forced to remain motionless because of traffic conditions over which the operator has no control; 

ill [8-j] a motor vehicle being used by the United States 

military, national guard, or reserve forces, or as an emergency or law 

enforcement motor vehicle; 

!&} [~] the primary propulsion engine of a motor vehicle 

providing a power source necessary for mechanical operation, other 

than propulsion, and/or passenger compartment heating, or air conditioning; 

[{6)] the primary propulsion engine of a motor vehicle 

being operated for maintenance or diagnostic purposes; 

ill [fA] the primary propulsion engine of a motor vehicle 

being operated solely to defrost a windshield; 

1.21 [{&)] the primary propulsion engine of a motor vehicle 

that is being used to supply heat or air conditioning necessary for passenger comfort and safety in vehicles intended for commercial or public 

passenger transportation, or passenger transit operations, in which case 

idling up to a maximum of 30 minutes is allowed; 

!.!Q) [f9j] the primary propulsion engine of a motor vehicle being used to provide air conditioning or heating necessary for employee health or safety while the employee is using the vehicle to perform an essential job function related to roadway construction or maintenance; 

!.!!) [tw)] the primary propulsion engine of a motor vehicle being used as airport ground support equipment; 

ill) [fi-B] the owner of a motor vehicle rented or leased to 

a person that operates the vehicle and is not employed by the owner; or 

i.!l) [~} a motor vehicle when idling is necessary to 

power a heater or air conditioner while a driver is using the vehicle's 

sleeper berth for a government-mandated rest period and is not within 

two miles of a facility offering external heating and air conditioning 

connections at a time when those connections are available. 

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 February 24, 

2012. 

TRD-201201125 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: April 8, 2012 

For further information, please call: (512) 239-0779 

• • • 

CHAPTER 116. CONTROL OF AIR 

POLLUTION BY PERMITS FOR NEW 

CONSTRUCTION OR MODIFICATION 

The Texas Commission on Environmental Quality (commission or TCEQ) proposes amendments to §§ 116.12, 116.150, 

116.151, 116.180, and 116.186. 

The proposed amendments to §§116.12, 116.150, 116.151, 

116.180, and 116.186 will be submitted to the United States 

Environmental Protection Agency (EPA) as revisions to the 

State Implementation Plan (SIP). 

Background and Summary of the Factual Basis for the Proposed 

Rules 

On June 10, 2005, the TCEQ submitted amendments to§ 116.12 

to the EPA as revisions to the New Source Review (NSR) SIP 

and § 116.150 as revisions to the Nonattainment New Source 

Review (NNSR) SIP, both adopted on May 25, 2005. On January 

11, 2006, the TCEQ repealed §§ 116.180 - 116.183, 116.41 0, 

and 116.617; amended §§116.12, 116.150, 116.151, 116.160, 

and 116.610; and adopted new §§116.121, 116.180, 116.182, 

116.184,116.186,116.188,116.190,116.192,116.194,116.196, 

116.198, 116.400, 116.402, 116.404, 116.406, 116.617, and 

PROPOSED RULES March 9, 2012 37 TexReg 1661 
116.1200. The TCEQ submitted these to the EPA as revisions 

to the NSR SIP to implement EPA's NSR Reform rules which 

became final on December 31, 2002. On September 23, 2009, 

the EPA published notice of the proposed disapproval of these 

revisions to the Texas SIP on September 23, 2009 (74 Federal 

Register 48467). The EPA's final disapproval notice was published September 15, 2010 (75 Federal Register56423). 

On February 9, 2011, in response to the EPA's final disapproval, the TCEQ repealed §116.121, adopted amendments 

to §§116.12, 116.115, 116.150, 116.180, 116.182, 116.186, 

116.188, 116.190, 116.192, 116.601, and 116.617; and adopted 

new § 116.127. These were published in the February 25, 2011 , 

issue of the Texas Register (36 TexReg 1305 and 1324 ). On 

March 11, 2011, the TCEQ submitted a revised SIP package 

that was based on the rule amendments, with the exception 

of §116.617, adopted on February 9, 2011, and addressed the 

issues outlined in the EPA's disapproval. On September 30, 

2011, the EPA expressed its intent to propose conditional approval ofTCEQ rules implementing the changes to the NSR SIP 

and the NSR Reform and requested a dialog to resolve certain 

EPA concerns and facilitate a final approval. This rulemaking 

addresses those concerns. 

This rulemaking is at least as stringent as the federal rules it 

implements because it includes the applicable elements of the 

major NSR and plant-wide applicability limit (PAL) permit programs. The rulemaking action also ensures that the rulemaking, 

if adopted, will meet the requirements of Federal Clean Air Act 

(FCAA), §11 0 which, among other requirements, requires that 

the elements of the SIP be enforceable, ensure compliance, include replicable elements, and ensure accountability. The specific changes to the PAL rules meet these basic requirements. 

Section by Section Discussion 

§ 116. 12, Nonattainment and Prevention of Significant Deterioration Review Definitions 

The commission proposes to amend the definition of the term 

"Plant-wide applicability limit" effective date in §116.12(23) to remove language that references the date that a flexible permit 

was issued. Since PAL permits and flexible permits are addressed by two different sets of rules in Chapter 116, it is inappropriate to reference flexible permits in the definition of the 

term plant-wide applicability limit effective date. The proposed 

change would remove this obsolete language, clarify permitting 

requirements and ensure consistency with federal requirements 

regarding NSR permits. 

§116.150, New Major Source or Major Modification in Ozone 

Nonattainment Areas 

The federal term "emissions unit" as defined in federal rules is 

similar to the term "facility" as defined in the Texas Clean Air Act 

(TCAA). In order to ensure clarity and consistency with federal 

requirements, the commission is proposing to add the language 

"or emissions unit" where the terms "facility" or "facilities" are 

used (i.e., §116.150(a), (d)(1) and (3)). 

§ 116. 151, New Major Source or Major Modification in Nonattainment Area Other Than Ozone 

The federal term "emissions unit" as defined in federal rules is 

similar to the term "facility" as defined in the TCAA. In order 

to ensure clarity and consistency with federal requirements, the 

commission is proposing to add the language "or emissions unit" 

where the terms "facility" or "facilities" are used in §116.151 (a), 

(c)(1) and (3)). 

37 TexReg 1662 March 9, 2012 Texas Register 

In response to EPA's proposed disapproval notice published 

September 23, 2009, the commission's executive director submitted comments replying to EPA's solicitation from the TCEQ 

to comment on EPA's interpretation of Texas law and the Texas 

NSR SIP with respect to the term "facility," stating that it is 

critical to EPA's understanding of the Texas Permitting Program. 

TCEQ's comments stated, in part, that the definition of the term 

"facility" is one of the cornerstones of the air permitting program 

in Texas under the TCAA. The comments specifically stated that 

the TCEQ's interpretation of Texas law differs from that of EPA 

In its final disapproval notice on September 15, 2010, (75 Federal Register 56423), EPA carried forward text from its proposed 

disapproval from September 23, 2009, by stating in footnote 7 on 

page 56433 and also on page 56438, "{i}t is our understanding 

of State law, that a "facility" can be an "emissions unit," i.e., any 

part of a stationary source that emits or may have the potential 

to emit any air contaminant. A "facility" also can be a piece of 

equipment, which is smaller than an "emissions unit." A "facility" 

can be a ''major stationary source" as defined by Federal law. A 

"facility" under State law can be more than one "major stationary 

source." It can include every emissions point on a company site, 

without limiting these emissions points to only those belonging 

to the same industrial grouping (SIC code)." In the same notice 

in footnote 15 on page 56438, EPA acknowledges that TCEQ's 

definition of "facility" is part of the approved Texas SIP. 

Under the TCAA in Texas Health and Safety Code (THSC), 

§382.003(6) and in §116.1 0(4), "facility" is defined as "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 considered to be a facility." A 

facility may constitute or contain a stationary source-a point of 

origin of a contaminant, as defined in THSC, §382.003(12) and 

in §116.10(15), a definition that is approved into the Texas SIP. 

As a discrete point, a facility can constitute but cannot contain a 

"major stationary source" as defined by federal law and in the 

TCEQ's SIP approved rule §116.12(17). A facility is subject to 

major and minor NSR requirements, depending on the facts of 

the specific application. 

The TCEQ and its predecessor agencies have consistently interpreted facility to preclude inclusion of more than one stationary source, in contrast to EPA's stated understanding. Likewise, 

TCEQ does not interpret facility to include "every emissions point 

on a company site, even if limiting these emission points to only 

those belonging to the same industrial grouping (SIC code)." 

The federal definition of "major stationary source" in 40 Code 

of Federal Regulations (CFR) §51.166(b)(1 ){i)(a) is not equivalent to the state definition of "source." A "major stationary source" 

can include more than one "facility" as defined under Texas law, 

which is consistent with EPA's interpretation of a "major stationary source" including more than one emissions unit. 

Under major NSR, EPA uses the term "emissions unit" (generally) when referring to part of a "stationary source;" TCEQ 

translates "emissions unit" to mean "facility." The commission's 

SIP-approved Prevention of Significant Deterioration (PSD) permitting rule in § 116.160( c){3) states, "{t}he term "facility" shall 

replace the words "emissions unit" in the referenced sections of 

the CFR." 

The above interpretation of the term "facility" has been consistently applied by the TCEQ and its predecessor agencies for 

more than 30 years. The TCEQ's interpretation of Texas statutes 

enacted by the Texas Legislature is addressed by the Texas 
Code Construction Act. More specifically, words and phrases 

that have acquired a technical or particular meaning, whether 

by legislative definition or otherwise, shall be construed accordingly, as per Texas Government Code, §311.011(b). 

In respons.e to the proposed disapproval, the commission proposed addmg the phrase "or emissions unit" in its PAL rules but 

did not do so in the nonattainment permitting rules becau~e of 

the long term use of the term in the Texas permitting rules and 

the approved Texas SIP, which included earlier versions of these 

rules, and because in the intervening time EPA had approved the 

definition of "facility" into the SIP. 

The proposed changes to § 116.150 and § 116.151 would allow 

EPA to approve the updated rules that implement the federal 

nonattainment permitting program. 

§116.180, Applicability 

The commission proposes to correct a typographical error in 

§116.180(a)(5) by changing a reference to the federal rules from 

40 CFR §51.165(iv)(A) to 40 CFR §51.165(a)(1 )(iv)(A). Additionally, the commission is adding a reference to the federal definiti~n of major stationary source in 40 CFR §51.166(b)(1 ). Adding 

th1s reference strengthens the TCEQ's PAL rules by limiting the 

applicability of a PAL to a source that conforms to the federal definition of a major stationary source in 40 CFR §51.166(b)(1 ). The 

proposed changes would clarify permitting requirements and ens~re consistency with federal requirements regarding NSR permits. 

§116.186, General and Special Conditions 

T~e commission proposes to amend §116.186(b )(9) to state that 

fa~l~re to. use the required monitoring would render the PAL permit 1nvahd. The change is proposed to ensure consistency with 

federal rule requirements. 

In both its proposed and final disapproval notices for the NSR 

Reform rules (as mentioned elsewhere in this preamble), the 

EPA stated that the specific monitoring definitions are essential 

for the. enforcc:ability of and providing the means for determining 

compliance w1th a PAL program. EPA also specifically stated 

that one of the bases for disapproval of the commission's PAL 

rules is that the rules lacked a mandate that failure of the monitoring system to meet the requirements of this section renders 

a PAL per~it invalid. In response, the commission specifically 

amended 1ts PAL rules to address the monitoring systems, and 

also added §116.186(b}(9} specifying that failure to use a monitoring system is a violation of the PAL permit. EPA did not provide 

~ml!lent on that amendment, nor §116.186(b)(9). The commiSSion understood that the proposed changes were satisfactory for SIP approval. However, §116.186(b)(9) did not address 

EPA's concerns •. w~ich were related to the installation and general use of momtonng systems rather than compliance issues 

such as monitoring downtime, the latter which is addressed i~ § 116.186(b )(8). As discussed elsewhere in this preamble, EPA 

contacted the commission in 2011 regarding its review of the 

submitted rules and raised the issue of ensuring that the commission's rules adequately adopted the EPA's requirement that 

a P~L permit is inval!d if the required monitoring system is not 

requ1red by the perrmt nor installed by the permittee. 

EPA's general monitoring requirements for PAL permits are in 40 

CFR §51.165(f)(12)(i)(A)- (D) and 40 CFR §51.166(w)(12)(i)(a) 

- (d). Subparagraph (i) requires enforceable requirements for a 

monitoring system in each PAL permit that is based on sound 

science and meets generally acceptable scientific procedures 

for data quality and manipulation; those systems must be one of 

the four general monitoring approaches in the federal PAL rules. 

Clauses (D) and (d) provide that failure to use a monitoring system that meets the applicable federal rule requirements renders 

the PAL invalid (See discussion at 67 Federal Register 80211 -

80214, December 31, 2002). Therefore, based on the text and 

context of both the rule and the accompanying preamble, the 

phrase "failure to use" in EPA's rule means a failure to install 

or failure to operate the prescribed monitoring device or system 

to operate under a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the monitoring device or 

system. The proposed change to § 116.186(b )(9) would address 

EPA's concern that the commission's rules fully incorporate all 

PAL permit requirements. 

Any invalidation of a PAL permit will be subject to necessary 

and appropriate procedures in Texas statutes and TCEQ rules. 

Texas Water Code (TWC), §7.302, regarding Grounds for Revocation or Suspension of Permit, provides the commission the authority to revoke and suspend or reissue a permit on prescribed 

grounds after notice and hearing. Prior to any invalidation of a 

PAL permit, the commission anticipates enforcement action that 

co~ld include a request for revocation. Generally, circumstances 

which could lead to invalidation (e.g., failure to install or use monitoring equipment) are not expected to occur, and thus few, if any, 

revocation proceedings are anticipated. 

Fiscal Note: Costs to State and Local Government 

Nina Chamness, Analyst, Strategic Planning and Assessment, 

has determined that for the first five-year period the proposed 

rules are in effect, no significant fiscal implications are anticipated for the agency or other units of state or local governments 

as a result of administration or enforcement of the proposed 

rules. 

In 2005 and 2006, the agency submitted new and amended rules 

to Chapter 116 as revisions to the NSR SIP to the EPA for approval. On September 15, 2010, EPA disapproved these SIP revisions. On March 11, 2011, the TCEQ submitted a revised SIP 

package that addressed the issues outlined in the EPA's disapproval. On September 30, 2011, the EPA expressed its intention 

to propose a conditional approval of the package and requested 

a dialog to resol~e certain EPA concerns regarding terminology 

and a typographical error to facilitate a final approval. The proposed. amendment~ address EPA concerns by correcting typographical e~rors, us1ng federal terms instead of state equivalents, 

and removmg unnecessary date references in definitions. The 

proposed amendments are administrative in nature and do not 

change existing federal or state requirements to obtain a permit 

nor do t~ey. mandate !he use ~f additional controls or change 

any m~n!tonng or testmg requirements. No fiscal implications 

are ant1c1pated for any regulated entity. 

State agencies or local governments that operate under an NSR 

permit should not experience any fiscal implications as a result 

of the proposed rules since despite any administrative discrepancy between state rules (which were submitted as revisions to 

the SIP) and the federal regulations, the proposed rules do not 

change existing federal or state requirements to obtain a permit 

nor do they mandate the use of additional controls or change 

any monitoring or testing requirements. The proposed amendments are administrative in nature and continue to ensure that 

state regulations are consistent with federal regulations so that 

regulated entities can more easily understand and comply with 

those requirements with regard to NSR permits. 

PROPOSED RULES March 9, 2012 37 TexReg 1663 
Public Benefits and Costs 

~s. Chamness also determined that for each year of the first 

f~v~ years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be 

consistency between federal and state requirements, assurance 

that state rules for the SIP NSR program are at least as stringent 

as federal rules, and EPA approval of the SIP. 

!h~ proposed rules ar~ not expected to have a fiscal impact on 

1~d1V1~uals or la~ge .busmesses because, despite any administrative d1screpanc1es m language between state rules which were 

submitted as revision~ t? the SIP, and the federal regulations, 

they do not change ex1st1ng federal or state requirements to obtain a permit nor do they mandate the use of additional controls 

or change any monitoring or testing requirements. The proposed 

amendments are administrative in nature and continue to ensure 

that state regulations are consistent with federal regulations so 

th.at regulated ~ntities can more easily understand and comply 

w1th those requirements with regard to NSR permits. 

Small Business and Micro-Business Assessment 

No adverse fiscal implications are anticipated for small or 

micro-businesses as a result of the proposed rules because 

despite any ad~inistrative discrepancies in language betwee~ state rules, wh1ch were submitted as revisions to the SIP and 

the federal regulations, they do not change existing fede~al or 

state requi~~ments to obtain a permit nor do they mandate the 

use ?f add1t1onal controls or change any monitoring or testing 

requ~rements. The proposed rules continue to clarify state 

requirements and ensure consistency with federal requirements 

regarding NSR permits. 

Small Business Regulatory Flexibility Analysis 

The ?om mission has revie~ed this proposed rulemaking and determine~ that a small bus1ness regulatory flexibility analysis is 

n?t requ1red becau~e the proposed rules are required to comply 

w1th federal regulations. The agency is required to implement 

the proposed rules to obtain federal approval for the SIP. 

Local Employment Impact Statement 

The ?ommission has reviewed this proposed rulemaking and determmed that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the 

proposed rules are in effect. 

Draft Regulatory Impact Analysis Determination 

The commission reviewed the proposed rulemaking in light ofthe 

regulatory impact analysis requirements of Texas Government 

Code, §2001.0225, and determined that the rulemaking does not 

meet the definition of a major environmental rule as defined in 

that statute, and in addition, if it did meet the definition would 

not be .subject to the requirement to prepare a regulatory' impact 

analys1s. 

A major environmental rule means a rule, the specific intent of 

which is to protect the environment or reduce risks to human 

health from environmental exposure, and that may adversely affect ~n .a material '!".ay t~e economy, a sector of the economy, productiVIty, compet1t1on, JObs, the environment, or the public health 

and safety of the state or a sector of the state. The specific intent 

of the proposed revisions is to include definitions for, and make 

other changes to the PAL rules to meet federal requirements. 

37 TexReg 1664 March 9, 2012 Texas Register 

Additionally, even if the rules met the definition of a major enviro.nm~~tal r~le .. the rulem~~ing does not meet any of the four apph~ablhty ?ntena for requ1nn~ a regulatory impact analysis for a 

maJor environmental rule, wh1ch are listed in Texas Government 

Code, §2001.0225(a). Texas Government Code, §2001.0225, 

~pplies only to a major environmental rule, the result of which 

IS to: 1) exceed a standard set by federal law, unless the rule 

is ~pecifically required by state law; 2) exceed an express reqUirement of state law, unless the rule is specifically required by 

federal law; 3) exceed a requirement of a delegation agreement 

or contract between the state and an agency or representative 

of the federal government to implement a state and federal program; o~ 4) adopt a rule solely under the general powers of the 

agency 1nstead of under a specific state law. 

The proposed rules would implement requirements of the FCAA. 

Under 42 United States Code (USC), §7410, each state is req.ui_red to ~dopt and implement a SIP containing adequate proVISions to Implement, attain, maintain, and enforce the National 

Ambient Air Quality Standards (NAAQS) within the state. While 

42 USC, §7 410 generally does not require specific programs, 

methods, or emission reductions in order to meet the standard, 

state SIPs must include specific requirements as specified by 42 

USC:, §741 0. The provisions of the FCAA recognize that states 

are m the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. 

This flexibility allows states, affected industry, and the public, 

to collaborate on the best methods for attaining the NAAQS for 

the specific regions in the state. Even though the FCAA allows 

~tates to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7 410. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs to 

as~ure that their SIPs provide for implementation, attainment, 

mamtenance, and enforcement of the NAAQS within the state. 

One of the requirements of 42 USC, §7 410 is for states to include 

programs for the regulation of the modification and construction 

of any stationary source within the area covered by the plan as 

nece~sary to assure that the NAAQS are achieved, including a 

perm1t program as required in FCAA, Parts C and D, or NSR. Additionally, once states have developed SIPs, and those plans are 

approved by the EPA, the FCAA prescribes, in 42 USC, §7502(e) 

that the EPA, in modifying a NAAQS, shall promulgate rules that 

apply to all areas that have not attained the previous NAAQS that 

prov1de for controls that are no less stringent than the controls 

that previously applied to the area. This rulemaking will address 

those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically 

those concern definitions for and other changes to the PAL rules 

to meet federal requirements. 

The requirement to provide a fiscal analysis of regulations in the 

Tex.as Government Code was amended by Senate Bill (SB) 633 

dunng the 75th Legislature, 1997. The intent of SB 633 was torequi~e agencies to conduct a regulatory impact analysis of extraord!nary r~les. These are identified in the statutory language as 

maJOr environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a 

delegated federal program, or are adopted solely under the gener~l powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost 

estimate for SB 633 that concluded, "based on an assessment 

of rules adopted by the agency in the past, it is not anticipated 

that the. bill.wi.ll have si~ni~ica~t fiscal implications for the agency 

due to 1ts hm1ted appl1cat1on. The commission also noted that 
the number of rules that would require assessment under the 

provisions of the bill was not large. This conclusion was based, 

in part, on the criteria set forth in the bill that exempted rules from 

the full analysis unless the rule was a major environmental rule 

that exceeds a federal law. 

Because of the ongoing need to meet federal requirements, the 

commission routinely proposes and adopts rules incorporating 

or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each rule 

proposed by the commission to meet a federal requirement was 

considered to be a major environmental rule that exceeds federal law, then each of those rules would require the full regulatory 

impact analysis (RIA) contemplated by SB 633. This conclusion 

is inconsistent with the conclusions reached by the commission 

in its cost estimate and by the Legislative Budget Board in its 

fiscal notes. Since the legislature is presumed to understand 

the fiscal impacts of the bills it passes, and that presumption is 

based on information provided by state agencies and the Legislative Budget Board, the commission believes that the intent of 

SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the proposed rules may have a broad 

impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA, and in fact creates 

no additional impacts since the proposed rules do not exceed 

the requirement to attain and maintain the NAAQS. For these 

reasons, the proposed rules fall under the exception in Texas 

Government Code, §2001.0225(a), because they are required 

by, and do not exceed, federal law. 

The commission has consistently applied this construction to its 

rules since this statute was enacted in 1997. Since that time, 

the legislature has revised the Texas Government Code, but 

left this provision substantially unamended. It is presumed that 

''when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the 

statute, the legislature is deemed to have accepted the agency's 

interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 

485, 489 (Tex. App. Austin 1995), writ denied with per curiam 

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. 

Austin 1990, no writ). Cf Humble Oil & Refining Co. v. Calvert, 

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto 

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v: Montemayor, 24 S.W.3d 581 (Tex. App. 

Austin 2000, pet. denied); and Coastal lndust. Water Auth. v. 

Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).) 

The commission's interpretation of the RIA requirements is also 

supported by a change made to the Administrative Procedure 

Act (APA) by the legislature in 1999. In an attempt to limit the 

number of rule challenges based upon APA requirements, the 

legislature clarified that state agencies are required to meet 

these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The 

legislature specifically identified Texas Government Code, 

§2001.0225 as falling under this standard. As discussed in 

this analysis and elsewhere in this preamble, the commission 

has substantially complied with the requirements of Texas 

Government Code, §2001.0225. 

The proposed rules implement requirements of the FCAA, 

specifically to adopt and implement SIPs to attain and maintain 

the NAAQS, including a requirement to adopt and implement 

permit programs. The specific intent of the proposed rulemaking is to address those sections submitted as revisions to the 

NSR SIP and subsequently were proposed for disapproval by 

the EPA. Specifically, those concern definitions for and other 

changes to the PAL rules to meet federal requirements. The 

proposed rules were not developed solely under the general 

powers of the agency, but are authorized by specific sections of 

THSC, Chapter 382 (also known as the TCAA), and the TWC, 

which are cited in the Statutory Authority section of this preamble. Therefore, this proposed rulemaking action is not subject to 

the regulatory analysis provisions of Texas Government Code, 

§2001.0225(b). 

Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address 

listed under the Submittal of Comments section of this preamble. 

Takings Impact Assessment 

Under Texas Government Code, §2007.002(5), taking means a 

governmental action that affects private real property, in whole or 

in part or temporarily or permanently, in a manner that requires 

the governmental entity to compensate the private real property 

owner as provided by the Fifth and Fourteenth Amendments to 

the United States Constitution or Texas Constitution §17 or §19, 

Article I; or a governmental action that affects an owner's private 

real property that is the subject of the governmental action, in 

whole or in part or temporarily or permanently, in a manner that 

restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is 

the producing cause of a reduction of at least 25% in the market 

value of the affected private real property, determined by comparing the market value of the property as if the governmental 

action is not in effect and the market value of the property determined as if the governmental action is in effect. 

The commission completed a takings impact analysis for the proposed rulemaking action under the Texas Government Code, 

§2007.043. The primary purpose of this proposed rulemaking 

action, as discussed elsewhere in this preamble, is to address 

those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, 

the proposed changes concern definitions for and other changes 

to the PAL rules to meet federal requirements. 

The proposed rules will not create any additional burden on private real property. The proposed rules will not affect private real 

property in a manner that would require compensation to private 

real property owners under the United States Constitution or the 

Texas Constitution. The proposal also will not affect private real 

property in a manner that restricts or limits an owner's right to the 

property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not 

cause a taking under Texas Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and commission rules in 30 TAG Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAG 

§505.11 (b)(2), relating to Actions and Rules Subject to the CMP, 

commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The 

commission reviewed this action for consistency with the CMP 

goals and policies in accordance with the rules of the Coastal 

PROPOSED RULES March 9, 2012 37 TexReg 1665 
Coordination Council, and determined that the action is consistent with the applicable CMP goals and policies. 

The CMP goal applicable to this rulemaking action is the goal 

to protect, preserve, and enhance the diversity, quality, quantity, 

functions, and values of coastal natural resource areas (31 TAC 

§501.12(1)). The CMP policy applicable to this rulemaking action 

is the policy that commission rules comply with federal regula~ 

tions in 40 CFR to protect and enhance air quality in the coastal 

areas (31 TAC §501.14(q)). Therefore, in accordance with 31 

TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies. 

Written comments on the consistency of the proposed rulemaking may be submitted to the contact person at the address listed 

under the Submittal of Comments section of this preamble. 

Effect on Sites Subject to the Federal Operating Permits Program 

Chapter 116 is an applicable requirement of 30 TAC Chapter 

122, Federal Operating Permits Program. If the proposed rules 

are adopted, owners or operators subject to the federal operating permit program must, consistent with the revision process 

in Chapter 122, upon the effective date of the adopted rulemaking, revise their operating permit to include the new Chapter 116 

requirements. Additionally, sources subject to the rules may become subject to the federal operating permit program. 

Announcement of Hearing 

The commission will hold a public hearing on this proposal in 

Austin on March 29, 2012, at 10:00 a.m. in Building E Room 

201S, at the commission's central office located at 12100 Park 

35 Circle. 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 be permitted during the hearing; however, 

commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. 

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact 

Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible. 

Submittal of Comments 

Written comments may be submitted to Michael Parrish, MC 

205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, 

or faxed to (512) 239-4808. Electronic comments may be 

submitted at: http:llwww5.tceq.texas.govlruteslecommentsl. 

File size restrictions may apply to comments being submitted 

via the eComments system. All comments should reference Rule Project Number 2012-015-116-AI. The comment 

period closes April 9, 2012. Copies of the proposed rulemaking can be obtained from the commission's Web site at 

http://www. tceq. texas. gov/navlruteslpropose_adopt. html. For 

further information, please contact Blake Stewart, Air Permits 

Division, (512) 239-6931. 

SUBCHAPTER A. DEFINITIONS 

30 TAC §116.12 

STATUTORY AUTHORITY 

The amendment is proposed under Texas Water Code (TWC), 

§5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under 

37 TexReg 1666 March 9, 2012 Texas Register 

the TWC; TWC, §5.1 03, concerning Rules, which authorizes 

the commission to adopt rules necessary to carry out its powers 

and duties under the TWC; TWC, §5.1 05, concerning General 

Policy, which authorizes the commission by rule to establish and 

approve all general policy of the commission; and under Texas 

Health and Safety Code (THSC), §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with 

the policy and purposes of the Texas Clean Air Act The amendment is also proposed under THSC, §382.002, concerning 

Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the 

protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, 

which authorizes the commission to control the quality of the 

state's air; and THSC, §382.012, concerning State Air Control 

Plan, which authorizes the commission to prepare and develop a 

general, comprehensive plan for the proper control of the state's 

air; THSC, §382.016, concerning Monitoring Requirements; 

Examination of Records, which authorizes the commission to 

prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an 

activity causing or resulting in the emission of air contaminants; 

THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling 

methods and procedures to be used in determining violations of 

and compliance with the commission's rules; THSC, §382.040, 

concerning Documents; Public Property, which provides that all 

information, documents, and data collected by the commission 

in performing its duties are state property; THSC, §382.051, 

concerning Permitting Authority of Commission; Rules, which 

authorizes the commission to issue permits for construction 

of new facilities or modifications to existing facilities that may 

emit air contaminants; THSC, §382.0511, concerning Permit 

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, 

concerning Modification of Existing Facility, which prescribes 

how the commission will evaluate modifications of existing 

facilities; THSC, §382.0513, concerning Permit Conditions, 

which authorizes the commission to establish and enforce 

permit conditions; THSC, §382.0514, concerning Sampling, 

Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal 

source or facility; THSC, §382.0515, concerning Application for 

Permit, which specifies permit application requirements; and 

THSC, §382.0518, concerning Preconstruction Permit, which 

authorizes the commission to issue preconstruction permits. 

The amendment is also proposed under Federal Clean Air Act 

(FCAA), 42 United States Code (USC), §§7401, et seq., which 

requires states to submit state implementation plan revisions 

that specify the manner in which the national ambient air quality 

standard will be achieved and maintained within each air quality 

control region of the state. 

The proposed amendment implements THSC, §§382.002, 

382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 

382.051, 382.0511 - 382.0515, and 382.0518, and FCAA, 42 

USC, §§7401 et seq. 

§ 116.12. Nonattainment and Prevention of Significant Deterioration 

Review Definitions. 

Unless specifically defined in the Texas Clean Air Act (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. The terms in this section are applicable to permit review for 

major source construction and major source modification in nonattain-
ment areas. In addition to the terms that are defined by the TCAA, and 

in§ 101.1 of this title (relating to Definitions), the following words and 

terms, when used in Chapter 116, Subchapter B, Divisions 5 and 6 of 

this title (relating to Nonattairunent Review Permits and Prevention of 

Significant Deterioration Review); and Chapter 116, Subchapter C, Di~ 

vision 1 of this title (relating to Plant-Wide Applicability Limits), have 

the following meanings, unless the context clearly indicates otherwise. 

(1) Actual emissions--Actual emissions as of a particular 

date are equal to the average rate, in tons per year, at which the unit 

actually emitted the pollutant during the 24-month period that precedes the particular date and that is representative of normal source 

operation, except that this definition shall not apply for calculating 

whether a significant emissions increase has occurred, or for establish~ 

ing a plant-wide applicability limit. Instead, paragraph (3) of this section relating to baseline actual emissions shall apply for this purpose. 

The executive director shall allow the use of a different time period 

upon a determination that it is more representative of normal source 

operation. Actual emissions shall be calculated using the unit's actual 

operating hours, production rates, and types of materials processed, 

stored, or combusted during the selected time period. The executive 

director may presume that the source-specific allowable emissions for 

the unit are equivalent to the actual emissions, e.g., when the allowable 

limit is reflective of actual emissions. For any emissions unit that has 

not begun normal operations on the particular date, actual emissions 

shall equal the potential to emit of the unit on that date. 

(2) Allowable emissions--The emissions rate of a stationary source, calculated using the maximum rated capacity of the source 

(unless the source is subject to federally enforceable limits that restrict 

the operating rate, or hours of operation, or both), and the most stringent of the following: 

(A) the applicable standards specified in 40 Code of 

Federal Regulations Part 60 or 61; 

(B) the applicable state implementation plan emissions 

limitation including those with a future compliance date; or 

(C) the emissions rate specified as a federally enforceable permit condition including those with a future compliance date. 

(3) Baseline actual emissions--The rate of emissions, in 

tons per year, of a federally regulated new source review pollutant. 

(A) For any existing electric utility steam generating 

unit, baseline actual emissions means the average rate, in tons per year, 

at which the unit actually emitted the pollutant during any consecutive 

24-month period selected by the owner or operator within the five-year 

period immediately preceding when the owner or operator begins actual construction of the project. The executive director shall allow the 

use of a different time period upon a determination that it is more representative of normal source operation. 

(B) For an existing facility (other than an electric utility steam generating unit), baseline actual emissions means the average 

rate, in tons per year, at which the facility actually emitted the pollutant during any consecutive 24-month period selected by the owner or 

operator within the ten-year period immediately preceding either the 

date the owner or operator begins actual construction of the project, or 

the date a complete permit application is received for a permit. The 

rate shall be adjusted downward to exclude any emissions that would 

have exceeded an emission limitation with which the major stationary 

source must currently comply with the exception of those required under 40 Code of Federal Regulations Part 63, had such major stationary 

source been required to comply with such limitations during the consecutive 24-month period. 

(C) For a new facility, the baseline actual emissions for 

purposes of determining the emissions increase that will result from the 

initial construction and operation of such unit shall equal zero; and for 

all other purposes during the first two years following initial operation, 

shall equal the unit's potential to emit. 

(D) The actual average rate shall be adjusted downward to exclude any non-compliant emissions that occurred during the 

consecutive 24-month period. For each regulated new source review 

pollutant, when a project involves multiple facilities, only one consecutive 24-month period must be used to determine the baseline actual 

emissions for the facilities being changed. A different consecutive 

24-month period can be used for each regulated new source review 

pollutant. The average rate shall not be based on any consecutive 

24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this 

amount. Baseline emissions cannot occur prior to November 15, 1990. 

(E) The actual average emissions rate shall include 

fugitive emissions to the extent quantifiable. Until March I, 2016, 

emissions previously demonstrated as resulting from planned maintenance, startup, or shutdown activities; historically unauthorized; and 

subject to reporting under Chapter I 0 I of this title (relating to General 

Air Quality Rules) shall be included to the extent that they have been 

authorized, or are being authorized. 

(4) Basic design parameters~~For a process unit at a steam 

electric generating facility, the owner or operator may select as its basic design parameters either maximum hourly heat input and maximum 

hourly fuel consumption rate or maximum hourly electric output rate 

and maximum steam flow rate. When establishing fuel consumption 

specifications in terms of weight or vohune, the minimum fuel quality 

based on British thermal units content shall be used for determining the 

basic design parameters for a coal-fired electric utility steam generating unit. The basic design parameters for any process unit that is not 

at a steam electric generating facility are maximum rate of fuel or heat 

input, maximum rate of material input, or maximum rate of product 

output. Combustion process units will typically use maximum rate of 

fuel input. For sources having multiple end products and raw materials, 

the owner or operator shall consider the primary product or primary raw 

material when selecting a basic design parameter. The owner or operator may propose an alternative basic design parameter for the source's 

process units to the executive director if the owner or operator believes 

the basic design parameter as defined in this paragraph is not appro~ 

priate for a specific industry or type of process unit. If the executive 

director approves of the use of an alternative basic design parameter, 

that basic design parameter shall be identified and compliance required 

in a condition in a permit that is legally enforceable. 

(A) The owner or operator shall use credible information, such as results of historic maximum capability tests, design information from the manufacturer, or engineering calculations, in establishing the magnitude of the basic design parameter. 

(B) If design information is not available for a process 

unit, the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the process 

unit in the five-year period immediately preceding the planned activity. 

(C) Efficiency of a process unit is not a basic design 

parameter. 

(5) Begin actual construction--In general, initiation of 

physical on-site construction activities on an emissions unit that are 

of a permanent nature. Such activities include, but are not limited 

to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. 

PROPOSED RULES March 9, 2012 37 TexReg 1667 
With respect to a change in method of operation, this term refers to 

those on-site activities other than preparatory activities that mark the 

initiation of the change. 

(6) Building, structure, facility, or installation--All of the 

pollutant-emitting activities that belong to the same industrial grouping, are located in one or more contiguous or adjacent properties, and 

are under the control of the same person (or persons under common 

control). Pollutant-emitting activities are considered to be part of the 

same industrial grouping if they belong to the same "major group" (i.e., 

that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement. 

(7) Clean coal technology--Any technology, including 

technologies applied at the precombustion, combustion, or post-combustion stage, at a new or existing facility that will achieve significant 

reductions in air emissions of sulfur dioxide or oxides of nitrogen 

associated with the utilization of coal in the generation of electricity, 

or process steam that was not in widespread use as of November 15, 

1990. 

(8) Clean coal technology demonstration project--A 

project using funds appropriated under the heading "Department of 

Energy-Clean Coal Technology," up to a total amount of $2.5 billion 

for commercial demonstration of clean coal technology, or similar 

projects funded through appropriations for the United States Environmental Protection Agency. The federal contribution for a qualifying 

project shall be at least 20% of the total cost of the demonstration 

project. 

(9) Commence--As applied to construction of a major stationary source or major modification, means that the owner or operator 

has all necessary preconstruction approvals or permits and either has: 

(A) begun, or caused to begin, a continuous program 

of actual on-site construction of the source, to be completed within a 

reasonable time; or 

(B) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss 

to the owner or operator, to undertake a program of actual construction 

of the source to be completed within a reasonable time. 

(10) Construction--Any physical change or change in the 

method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a 

change in actual emissions. 

(11) Contemporaneous period--For major sources the period between: 

(A) the date that the increase from the particular change 

occurs; and 

(B) 60 months prior to the date that construction on the 

particular change commences. 

( 12) De minimis threshold test (netting)--A method of determining if a proposed emission increase will trigger nonattainment 

or prevention of significant deterioration review. The summation of 

the proposed project emission increase in tons per year with all other 

creditable source emission increases and decreases during the contemporaneous period is compared to the significant level for that pollutant. 

If the significant level is exceeded, then prevention of significant deterioration and/or nonattainment review is required. 

( 13) Electric utility steam generating unit--Any steam electric generating unit that is constructed for the purpose of supplying 

more than one-third of its potential electric output capacity and more 

than 25 megawatts electrical output to any utility power distribution 

37 TexReg 1668 March 9, 2012 Texas Register 

system for sale. Any steam supplied to a steam distribution system for 

the purpose of providing steam to a steam-electric generator that would 

produce electrical energy for sale is included in determining the electrical energy output capacity of the affected facility. 

(14) Federally regulated new source review pollutant--As 

defined in subparagraphs (A)- (D) of this paragraph: 

(A) any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors 

for such pollutants identified by the United States Environmental Protection Agency; 

(B) any pollutant that is subject to any standard promulgated under Federal Clean Air Act (FCAA), § Ill; 

(C) any Class I or II substance subject to a standard promulgated under or established by FCAA, Title VI; or 

(D) any pollutant that otherwise is subject to regulation 

under the FCAA; except that any or all hazardous air pollutants either 

listed in FCAA, § 112 or added to the list under FCAA, § 112(b )(2), 

which have not been delisted under FCAA, § 112(b )(3 ), are not regulated new source review pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant 

listed under FCAA, §108. 

( 15) Lowest achievable emission rate--For any emitting facility, that rate of emissions of a contaminant that does not exceed the 

amount allowable under applicable new source performance standards 

promulgated by the United States Environmental Protection Agency 

under 42 United States Code, §7411, and that reflects the following: 

(A) the most stringent emission limitation that is contained in the rules and regulations of any approved state implementation plan for a specific class or category of facility, unless the owner or 

operator of the proposed facility demonstrates that such limitations are 

not achievable; or 

(B) the most stringent emission limitation that is 

achieved in practice by a specific class or category of facilities, 

whichever is more stringent. 

( 16) Major facility--Any facility that emits or has the po~ 

tential to emit 100 tons per year or more of the plant-wide applicability 

limit (PAL) pollutant in an attainment area; or any facility that emits or 

has the potential to emit the PAL pollutant in an amount that is equal 

to or greater than the major source threshold for the PAL pollutant in 

Table I of this section for nonattainment areas. 

(I 7) Major stationary source-~Any stationary source that 

emits, or has the potential to emit, a threshold quantity of emissions 

or more of any air contaminant (including volatile organic compounds 

(VOCs)) for which a national ambient air quality standard has been 

issued. The major source thresholds are identified in Table I of this 

section for nonattainment pollutants and the major source thresholds 

for prevention of significant deterioration pollutants are identified in 40 

Code ofFederal Regulations (CFR) §51.166(b)(I). A source that emits, 

or has the potential to emit a federally regulated new source review pollutant at levels greater than those identified in 40 CFR §51.166(b )(1) 

is considered major for all prevention of significant deterioration pollutants. A major stationary source that is major for VOCs or nitrogen 

oxides is considered to be major for ozone. The fugitive emissions of 

a stationary source shall not be included in detennining for any of the 

purposes of this definition whether it is a major stationary source, unless the source belongs to one of the categories of stationary sources 

listed in 40 CFR §51.165(a)(1)(iv)(C). 

( 18) Major modification--As follows. 
(A) Any physical change in, or change in the method of 

operation of a major stationary source that causes a significant project 

emissions increase and a significant net emissions increase for any federally regulated new source review pollutant. At a stationary source 

that is not major prior to the increase, the increase by itself must equal 

or exceed that specified for a major source. At an existing major stationary source, the increase must equal or exceed that specified for a 

major modification to be significant. The major source and significant 

thresholds are provided in Table I of this section for nonattainment pollutants. The major source and significant thresholds for prevention of 

significant deterioration pollutants are identified in 40 Code of Federal 

Regulations §51.I66(b)(I) and (23), respectively. 

Figure: 30 TAC §116.12(18)(A) (No change.) 

(B) A physical change or change in the method of operation shall not include: 

(i) routine maintenance, repair, and replacement; 

(ii) use of an alternative fuel or raw material by reason of an order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by 

reason of a natural gas curtailment plan under the Federal Power Act; 

(iii) use of an alternative fuel by reason of an order 

or rule of 42 United States Code, §7425; 

(iv) use of an alternative fuel at a steam generating 

unit to the extent that the fuel is generated from municipal solid waste; 

(v) use of an alternative fuel or raw material by a 

stationary source that the source was capable of accommodating before 

December 2I, I97 6 (unless such change would be prohibited under any 

federally enforceable permit condition established after December 2I, 

1976) or the source is approved to use under any permit issued under 

regulations approved under this chapter; 

(vi) an increase in the hours of operation or in the 

production rate (unless the change is prohibited under any federally 

enforceable permit condition that was established after December 2I, 

1976); 

(vii) any change in ownership at a stationary source; 

(viii) any change in emissions of a pollutant at a site 

that occurs under an existing plant-wide applicability limit; 

(ix) the installation, operation, cessation, or removal 

of a temporary clean coal technology demonstration project, provided 

that the project complies with the state implementation plan and other 

requirements necessary to attain and maintain the national ambient air 

quality standard during the project and after it is terminated; 

(x) for prevention of significant deterioration review 

only, the installation or operation of a permanent clean coal teclmology 

demonstration project that constitutes re-powering, provided that the 

project does not result in an increase in the potential to emit of any 

regulated pollutant emitted by the unit. This exemption shall apply on 

a pollutant-by-pollutant basis; or 

(xl) for prevention of significant deterioration review only, the reactivation of a clean coal-fired electric utility steam 

generating unit. 

(I9) Necessary preconstruction approvals or permits--Those permits or approvals required under federal air quality 

control laws and regulations and those air quality control laws and 

regulations that are part of the applicable state implementation plan. 

(20) Net emissions increase--The amount by which the 

sum of the following exceeds zero: the project emissions increase plus 

any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases. 

Baseline actual emissions shall be used to determine emissions increases and decreases. 

(A) An increase or decrease in emissions is creditable 

only if the following conditions are met: 

(i) it occurs during the contemporaneous period; 

(ii) the executive director has not relied on it in issuing a federal new source review permit for the source and that permit 

is in effect when the increase in emissions from the particular change 

occurs; and 

(iii) in the case of prevention of significant deterioration review only, an increase or decrease in emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be 

considered in calculating the amount of maximum allowable increases 

remaining available. 

(B) An increase in emissions is creditable if it is theresult of a physical change in, or change in the method of operation of a 

stationary source only to the extent that the new level of emissions exceeds the baseline actual emission rate. Emission increases at facilities 

under a plant-wide applicability limit are not creditable. 

(C) A decrease in emissions is creditable only to the extent that all of the following conditions are met: 

(i) the baseline actual emission rate exceeds the new 

level of emissions; 

(ii) it is federally enforceable at and after the time 

that actual construction on the particular change begins; 

(iii) the executive director has not relied on it in issuing a prevention of significant deterioration or a nonattaimnent permit; 

(iv) the decrease has approximately the same qualitative significance for public health and welfare as that attributed to the 

increase from the particular change; and 

(v) in the case ofnonattaimnent applicability analysis only, the state has not relied on the decrease to demonstrate attainment or reasonable further progress. 

(D) An increase that results from a physical change at a 

source occurs when the emissions unit on which construction occurred 

becomes operational and begins to emit a particular pollutant. Any 

replacement unit that requires shakedown becomes operational only 

after a reasonable shakedown period, not to exceed 180 days. 

(21) Offset ratio--For the purpose of satisfying the 

emissions offset reduction requirements of 42 United States Code, 

§7503(a)(l)(A), the emissions offset ratio is the ratio of total actual 

reductions of emissions to total emissions increases of such pollutants. 

The minimum offset ratios are included in Table I of this section under 

the definition of major modification. In order for a reduction to qualify 

as an offset, it must be certified as an emission credit under Chapter 

I 0 I, Subchapter H, Division 1 or 4 of this title (relating to Emission 

Credit Banking and Trading; or Discrete Emission Credit Banking and 

Trading), except as provided for in § 116.170(b) of this title (relating to 

Applicability of Emission Reductions as Offsets). The reduction must 

not have been relied on in the issuance of a previous nonattainment or 

prevention of significant deterioration pennit. 

(22) Plant-wide applicability limit--An emission limitation 

expressed, in tons per year, for a pollutant at a major stationary source, 

that is enforceable and established in a plant-wide applicability limit 

PROPOSED RULES March 9, 2012 37 TexReg 1669 
permit under§ 116.186 of this title (relating to General and Special Conditions). 

(23) Plant-wide applicability limit effective date--The date 

of issuance of the plant-wide applicability limit permit. [+he ~laffi.. 

wide applieability Hmit e~ date ffiF a p-1-imt-wiae applicability 

limi-t estab-1-i-sh-etl in an ~ ref'FFI:it is the aate that the ~­

-i:ble pemtit was 

(24) Plant-wide applicability limit major modification--Any physical change in, or change in the method of operation 

of the plant-wide applicability limit source that causes it to emit the 

plant-wide applicability limit pollutant at a level equal to or greater 

than the plant-wide applicability limit. 

(25) Plant-wide applicability limit permit--The new source 

review permit that establishes the plant-wide applicability limit. 

(26) Plant-wide applicability limit pollutant--The pollutant 

for which a plant-wide applicability limit is established at a major stationary source. 

(27) Potential to emit--The maximum capacity of a stationary source to emit a pollutant under its physical and operational design. 

Any physical or enforceable operational limitation on the capacity of 

the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or 

amount of material combusted, stored, or processed, may be treated as 

part of its design only if the limitation or the effect it would have on 

emissions is federally enforceable. Secondary emissions, as defined 

in 40 Code ofFederal Regulations §51.165(a)(l)(viii), do not count in 

determining the potential to emit for a stationary source. 

(28) Project net--The sum of the following: the project 

emissions increase, minus any sourcewide creditable emission decreases proposed at the source between the date of application for 

the modification and the date the resultant modification begins emitting. Baseline actual emissions shall be used to determine emissions 

increases and decreases. Increases and decreases must meet the creditability criteria listed tmder the definition of net emissions increase in 

this section. 

(29) Projected actual emissions--The maximwn annual 

rate, in tons per year, at which an existing facility is projected to 

emit a federally regulated new source review pollutant in any rolling 

12-month period during the five years following the date the facility 

resumes regular operation after the project, or in any one of the ten 

years following that date, if the project involves increasing the facility's design capacity or its potential to emit that federally regulated 

new source review pollutant. In determining the projected actual 

emissions, the owner or operator of the major stationary source shall 

include unauthorized emissions from planned maintenance, startup, or 

shutdown activities, which were historically unauthorized and subject 

to reporting under Chapter I 0 I of this title, to the extent they have 

been authorized, or are being authorized; and fugitive emissions to 

the extent quantifiable; and shall consider all relevant information, 

including, but not limited to, historical operational data, the company's 

own representations, the company's expected business activity and 

the company's hlghest projections of business activity, the company's 

filings with the state or federal regulatory authorities, and compliance 

plans under the approved state implementation plan. 

(30) Project emissions increase--The sum of emissions increases for each modified or affected facility determined using the following methods: 

(A) for existing facilities, the difference between the 

projected actual emissions and the baseline actual emissions. In calculating any increase in emissions that results from the project, that 

37 TexReg 1670 March 9, 2012 Texas Register 

portion of the facility's emissions following the project that the facility could have accommodated during the consecutive 24-month period 

used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due 

to product demand growth may be excluded from the project emission 

increase. The potential to emit from the facility following completion 

ofthe project may be used in lieu of the projected actual emission rate; 

and 

(B) for new facilities, the difference between the poten* 

tial to emit from the facility following completion of the project and 

the baseline actual emissions. 

(31) Replacement facility--A facility that satisfies the following criteria: 

(A) the facility is a reconstructed unit within the meaning of 40 Code of Federal Regulations §60.15(b )(1), or the facility re* 

places an existing facility; 

(B) the facility is identical to or functionally equivalent 

to the replaced facility; 

(C) the replacement does not alter the basic design parameters of the process unit; 

(D) the replaced facility is permanently removed from 

the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable. If the 

replaced facility is brought back into operation, it shall constitute a 

new facility. No creditable emission reductions shall be generated from 

shutting down the existing facility that is replaced. A replacement facility is considered an existing facility for the purpose of determining 

federal new source review applicability. 

(32) Secondary emissions-*Emissions that would occur as 

a result of the construction or operation of a major stationary source 

or major modification, but do not come from the source or modification itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same general area as the stationary source or 

modification that causes the secondary emissions. Secondary emissions include emissions from any off-site support facility that would 

not be constructed or increase its emissions, except as a result of the 

construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions that come 

directly from a mobile source such as emissions from the tail pipe of a 

motor vehicle, from a train, or from a vessel. 

(33) Significant facility--A facility that emits or has the potential to emit a plant-wide applicability limit (PAL) pollutant in an 

amount that is equal to or greater than the significant level for that PAL 

pollutant. 

(34) Small facility--A facility that emits or has the potential 

to emit the plant-wide applicability limit (PAL) pollutant in an amount 

less than the significant level for that PAL pollutant. 

(35) Stationary source--Any building, structure, facility, or 

installation that emits or may emit any air pollutant subject to regulation 

under 42 United States Code, §§740I et seq. 

(36) Temporary clean coal technology demonstration 

project--A clean coal technology demonstration project that is operated for a period of five years or less, and that complies with the state 

implementation plan and other requirements necessary to attain and 

maintain the national ambient air quality standards during the project 

and after it is terminated. 
This agency hereby certifies that the proposal has been reviewed 

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

ity to adopt. 

Filed with the Office of the Secretary of State on February 24, 

2012. 

TRD-201201120 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: AprilS, 2012 

For further information, please call: (512) 239-2548 

• • • 

SUBCHAPTER B. NEW SOURCE REVIEW 

PERMITS 

DIVISION 5. NONATTAINMENT REVIEW 

PERMITS 

30 TAC §116.150, §116.151 

STATUTORY AUTHORITY 

The amendments are proposed under Texas Water Code (TWC), 

§5.1 02, concerning General Powers, which provides the com~ 

mission with the general powers to carry out its duties under 

the TWC; TWC, §5.1 03, concerning Rules, which authorizes 

the commission to adopt rules necessary to carry out its pow~ 

ers and duties under the TWC; TWC, §5.1 05, concerning Gen~ 

eral Policy, which authorizes the commission by rule to estab~ 

lish and approve all general policy of the commission; and under 

Texas Health and Safety Code (THSC), §382.017, concerning 

Rules, which authorizes the commission to adopt rules consis~ 

tent with the policy and purposes of the Texas Clean Air Act. 

The amendments are also proposed under THSC, §382.002, 

concerning Policy and Purpose, which establishes the commis~ 

sian's purpose to safeguard the state's air resources, consistent 

with the protection of public health, general welfare, and physi~ 

cal property; THSC, §382.011, concerning General Powers and 

Duties, which authorizes the commission to control the quality 

of the state's air; and THSC, §382.012, concerning State Air 

Control Plan, which authorizes the commission to prepare and 

develop a general, comprehensive plan for the proper control 

of the state's air; THSC, §382.051, concerning Permitting Au~ 

thority of Commission; Rules, which authorizes the commission 

to issue permits for construction of new facilities or modifica~ 

tions to existing facilities that may emit air contaminants; THSC, 

§382.0511, concerning Permit Consolidation and Amendment, 

which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of ExistM 

ing Facility, which prescribes how the commission will evaluate 

modifications of existing facilities; THSC, §382.0513, concerning 

Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction 

Permit, which authorizes the commission to issue preconstruction permits. The amendments are also proposed under Federal 

Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et 

seq., which requires states to submit state implementation plan 

revisions that specify the manner in which the national ambient 

air quality standard will be achieved and maintained within each 

air quality control region of the state. 

The proposed amendments implement THSC, §§382.002, 

382.011 I 382.012, 382.017, 382.051 I 382.05111 382.0512, 

382.0513, 382.0515, and 382.0518, and FCAA, 42 USC, 

§§7401 et seq. 

§116.150. New Major Source or Major Modification in Ozone Nonattainment Areas. 

(a) This section applies to all new source review authorizations 

for new construction or modification of facilities or emissions units that 

will be located in any area designated as nonattainment for ozone under 

42 United States Code (USC), §§7407 et seq. as of the date of issuance 

ofthe permit, unless the following apply on the date of issuance ofthe 

permit: 

(1) the United States Environmental Protection Agency 

(EPA) has made a finding of attainment; 

(2) the EPA has approved the removal of nonattainment 

New Source Review lli§B} requirements from the area; 

(3) the EPA has determined that Prevention of Significant 

Deterioration requirements apply in the area; or 

(4) the EPA determines that nonattainment NSR is no 

longer required for purposes of antibacksliding. 

(b) The owner or operator of a proposed new major stationary 

source, as defined in§ 116.12 of this title (relating to Nonattainment and 

Prevention of Significant Deterioration Review Definitions) of volatile 

organic compound (VOC) emissions or nitrogen oxides (NO) emissions, or the owner or operator of an existing stationary source ofVOC 

or NOx emissions that will undergo a major modification, as defined 

in §116.12 ofthis title with respect to VOC orNOx, shall meet therequirements of subsection (d)( 1) - ( 4) of this section, except as provided 

in subsection (e) of this section. Table I, located in the definition of 

major modification in § 116.12 of this title, specifies the various classifications of nonattainment along with the associated emission levels 

that designate a major stationary source and significant level for those 

classifications. 

(c) Except as noted in subsection (e) ofthis section regarding 

NO,., the de minimis threshold test (netting) is required for all modifications to existing major sources of VOC or NOx, unless at least one 

of the following conditions are met: 

( 1) the proposed emissions increases associated with a 

project, without regard to decreases, is less than five tons per year (tpy) 

of the individual nonattainment pollutant in areas classified under 

Federal Clean Air Act (FCAA), Title I, Part D, Subpart 2 (42 USC, 

§7511) classified as Serious or Severe; 

(2) the proposed emissions increases associated with a 

project, without regard to decreases, is less than 40 tpy of the individual nonattainment pollutant in areas classified under FCAA, Title 

I, Part D, Subpart 1 (42 USC, §7502) and for those under FCAA, 

Title I, Part D, Subpart 2 (42 USC, §7511) classified as Marginal or 

Moderate; or 

(3) the project emissions increases are less than the signif~ 

icant level stated in Table I located in the definition of major modification in § 116.12 of this title and when coupled with project actual 

emissions decreases for the same pollutant, summed as the project net, 

are less than or equal to zero tpy. 

(d) In applying the de minimis threshold test, if the net emis· 

sions increases are greater than the significant levels stated in Table I 

PROPOSED RULES March 9, 2012 37 TexReg 1671 
located in the definition ofmajor modification in §116.12 ofthis title, 

the following requirements apply. 

(1) The proposed facility~~~~~~ 

with the lowest achievable emission rate as in § 116.12 

of this title for the nonattainment pollutants for which the facility .Q! 

~~~~!!!!!is a new major source or major modification except as 

paragraph (3)(B) of this subsection and except for existing 

major stationary sources that have a potential to emit (PTE) ofless than 

I 00 tpy of the applicable nonattainment pollutant. For these sources, 

best available control technology (BACT) can be substituted for LAER. 

LAER shall otherwise be applied to each new facility or emissions Wlit 

and to each existing facility or emissions unit at which the net emissions 

increase will occur as a result of a physical change or change in method 

of operation of the unit. 

(2) All major stationary sources owned or operated by the 

applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state must be in compliance or 

on a schedule for compliance with all applicable state and federal emission limitations and standards. 

(3) At the time the new or modified facility or emissions 

Wlit or facilities or emissions units commence operation, the emissions 

increases from the new or modified facility or emissions unit or facilities or emissions units must be offset. The proposed facility or emissions unit shall use the offset ratio for the appropriate nonattainment 

classification as defined in § I16.12 of this title and shown in Table I 

located in the definition of major modification in §116.12 ofthis title. 

Internal offsets that are generated at the source and that otherwise meet 

all creditability criteria can be applied as follows. 

(A) Major stationary sources located in a serious or severe ozone nonattainment area with a PTE of less than I 00 tpy of an 

applicable nonattainment pollutant are not required to undergo nonattainment new source review under this section, if the project increases 

are offset with internal offsets at a ratio of at least 1.3 to I. 

(B) Major stationary sources located in a serious or severe ozone nonattainment area with a PTE of greater than or equal to 

I 00 tpy of an applicable nonattainment pollutant can substitute federal 

BACT (as identified in §116.I60(c)(I)(A) ofthis title (relating to Prevention of Significant Deterioration Requirements) for LAER, if the 

project increases are offset with internal offsets at a ratio of at least 1.3 

to I. Internal offsets used in this manner can also be applied to satisfY 

the offset requirement. 

(4) In accordance with the FCAA, the permit application 

must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source. The analysis 

must demonstrate that the benefits of the proposed location and source 

configuration significantly outweigh the environmental and social costs 

of that location. 

(e) For sources located in the El Paso ozone nonattainment 

area as defined in 40 Code ofFederal Regulations, Part 8I, the requirements of this section do not apply to NOx emissions. 

§116.151. New Major Source or Major Modification in Nonattainment Area Other Than Ozone. 

(a) This section applies to applications for new construction 

or modification of facilities or emissions units located in a designated 

nonattainment area for an air contaminant other than ozone. The owner 

or operator of a proposed new or modified facility or emissions unit 

that will be a new major stationary source for that nonattainment air 

contaminant, or the owner or operator of an existing major stationary source that will undergo a major modification with respect to that 

nonattainment air contaminant, shall meet the additional requirements 

37 TexReg 1672 March 9, 2012 Texas Register 

of subsection (c)(l)- ( 4) of this section. Table I located in the definition 

of major modification in § 116.12 of this title (relating to Nonattainment 

and Prevention of Significant Deterioration Review Definitions) specifies the various classifications of nonattainment along with the associated emission levels that designate a major stationary source. 

(b) The de minimis threshold test (netting) is required for all 

modifications to existing major sources of federally regulated new 

source review pollutants, unless the proposed emissions increases 

associated with a project, without regard to decreases, are less than 

the major modification threshold for the pollutant identified in Table I 

located in the definition of major modification in §116.12 of this title. 

(c) In applying the de minimis threshold test, if the net emissions increases are greater than the major modification levels stated in 

Table I located in the definition of major modification in § 116.12 of 

this title, the following requirements apply. 

(1) The proposed facility or emissions unit shall comply 

with the lowest achievable emission rate (LAER) as defined in §116.12 

of this title for the nonattainment pollutants for which the facility or 

emissions unit is a new major source or major modification. LAER 

shall be applied to each new facility or emissions unit and to each existing facility or emissions unit at which the net emissions increase will 

occur as a result of a physical change or change in method of operation 

of the unit. 

(2) All major stationary sources owned or operated by the 

applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state shall be in compliance or 

on a schedule for compliance with all applicable state and federal emission limits and standards. 

(3) At the time the new or modified facility or emissions 

unit or facilities or emissions units commence operation, the emission 

increases from the new or modified facility or emissions unit or facilities or emissions units shall be offset. The proposed facility or emissions unit shall use the offset ratio for the appropriate nonattainment 

classification as defined in § II6.12 of this title and shown in Table I 

located in the definition of major modification in § 116.12 of this title. 

(4) In accordance with the Federal Clean Air Act, the permit application shall contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source. The 

analysis shall demonstrate that the benefits of the proposed location and 

source configuration significantly outweigh the environmental and social costs of that location. 

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 February 24, 

2012. 

TRD~201201121 

Robert Martinez 

Director. Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: April 8, 2012 

For further information, please call: (512) 239-2548 

• • • 

SUBCHAPTER C. PLANT-WIDE 

APPLICABILITY LIMITS 
DIVISION 1. PLANT-WIDE APPLICABILITY 

LIMITS 

30 TAC §116.180, §116.186 

STATUTORY AUTHORITY 

The amendments are proposed under Texas Water Code 

(TWC), §5.1 02, concerning General Powers, which provides 

the commission with the general powers to carry out its duties 

under the TWC; TWC, §5.1 03, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its 

powers and duties under the TWC; TWC, §5.1 05, concerning 

General Policy, which authorizes the commission by rule to 

establish and approve all general policy of the commission; 

TWC, §7.02, concerning Enforcement Authority, which provides 

the commission the authority to enforce the statutes under 

its jurisdiction; TWC, §7.301, concerning Definition, which 

defines terms used in Chapter 7, Subchapter G; TWC, §7.302, 

concerning Grounds for Revocation or Suspension of Permit, 

which provides the commission the authority to revoke and 

suspend or revoke and reissue a permit on prescribed grounds 

after notice and hearing; and under Texas Health and Safety 

Code (THSC), §382.017, concerning Rules, which authorizes 

the commission to adopt rules consistent with the policy and 

purposes of the Texas Clean Air Act. The amendments are 

also proposed under THSC, §382.002, concerning Policy and 

Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection 

of public health, general welfare, and physical property; THSC, 

§382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's 

air; and THSC, §382.012, concerning State Air Control Plan, 

which authorizes the commission to prepare and develop a 

general, comprehensive plan for the proper control of the state's 

air; THSC, §382.016, concerning Monitoring Requirements; 

Examination of Records, which authorizes the commission to 

prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an 

activity causing or resulting in the emission of air contaminants; 

THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling 

methods and procedures to be used in determining violations of 

and compliance with the commission's rules; THSC, §382.040, 

concerning Documents; Public Property, which provides that all 

information, documents, and data collected by the commission 

in performing its duties are state property; THSC, §382.051, 

concerning Permitting Authority of Commission; Rules, which 

authorizes the commission to issue permits for construction 

of new facilities or modifications to existing facilities that may 

emit air contaminants; THSC, §382.0511, concerning Permit 

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, 

concerning Modification of Existing Facility, which prescribes 

how the commission will evaluate modifications of existing 

facilities; THSC, §382.0513, concerning Permit Conditions, 

which authorizes the commission to establish and enforce 

permit conditions; THSC, §382.0514, concerning Sampling, 

Monitoring, and Certification, which authorizes the commission 

to require sampling and monitoring of a permitted federal source 

or facility; THSC, §382.0515, concerning Application for Permit, 

which specifies permit application requirements; and THSC, 

§382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The 

amendments are also proposed under Federal Clean Air Act 

(FCAA), 42 United States Code (USC), §§7401, et seq., which 

requires states to submit state implementation plan revisions 

that specify the manner in which the national ambient air quality 

standard will be achieved and maintained within each air quality 

control region of the state. 

The proposed amendments implement THSC, §§382.002, 

382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 

382.051, 382.0511, 382.0512, 382.0513, 382.0514, 382.0515, 

and 382.0518, and FCAA, 42 USC, §§7401 et seq. 

§ 116.180. Applicability. 

(a) The following requirements apply to a plant-wide applicability limit (PAL) permit. 

(1) Only one PAL may be issued for each pollutant at an 

existing major stationary source. 

(2) A PAL permit may include more than one PAL. 

(3) A PAL permit may not cover facilities or emissions 

units at more than one existing major stationary source. 

(4) A PAL permit may be consolidated with a new source 

review permit at the existing major stationary source. 

(5) A PAL permit can be issued only for an existing major 

stationary source; it may not be issued for a new major stationary source 

as defined in 40 Code ofFederal Regulations §51.165(a)(l)(iv)(A) and 

§51.166(b )(I) [§51.165(iY)(/'~)]. 

(b) The new owner of a major stationary source shall comply 

with § 116.11 0( e) of this title (relating to Applicability), provided that 

all facilities, or emissions units at a major stationary source, covered 

by a PAL permit change ownership at the same time and to the same 

person, or both the new owner and existing permit holder must obtain 

a PAL permit alteration allocating the emission prior to the transfer of 

the permit by the commission. After the sale of a facility, or emissions 

unit at a major stationary source, but prior to the transfer of a permit 

requiring a permit alteration, the original PAL permit holder remains 

responsible for ensuring compliance with the existing PAL permit and 

all rules of the commission. 

(c) The owner of the facility, emissions unit at a major stationary source, group of facilities, or account or the operator of the facility, emissions unit at a major stationary source, group of facilities, or 

account that is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b) of this 

section. 

§ 116.186. General and Special Conditions. 

(a) The plant-wide applicability limit (PAL) will impose an annual emission limitation in tons per year, that is enforceable for all facilities, or emissions units at a major stationary source, that emit the 

PAL pollutant. For each month during the PAL effective period after 

the first 12 months of establishing a PAL, the major stationary source 

owner or operator shall demonstrate that the sum of the monthly emissions from each facility under the PAL for the previous 12 consecutive 

months is less than the PAL (a 12-month average, rolled monthly). For 

each month during the first 11 months from the PAL effective date, the 

major stationary source owner or operator shall demonstrate that the 

sum of the preceding monthly emissions from the PAL effective date 

for each facility under the PAL is less than the PAL. Each PAL must include emissions of only one pollutant. The PAL must include all emissions, including fugitive emissions, to the extent quantifiable, from all 

facilities or emissions units at a major stationary source included in the 

PAL that emit or have the potential to emit the PAL pollutant. 

(b) The following general conditions are applicable to every 

PAL permit. 

PROPOSED RULES March 9, 2012 37 TexReg 1673 
(I) Applicability. This section does not authorize any fa~ 

cility to emit air pollutants but establishes an annual emissions level 

below which new and modified facilities, or emissions units at a major 

stationary source, will not be subject to major new source review for 

that pollutant 

(2) Sampling requirements. If sampling of stacks or 

process vents is required, the PAL permit holder shall contact the 

commission1s 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 PAL permit holder is also responsible for providing sampling 

facilities and conducting the sampling operations or contracting with 

an independent sampling consultant. 

(3) Equivalency of methods. The permit holder shall 

demonstrate 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 PAL 

permit. Alternative methods must 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. 

(4) Recordkeeping and reporting. 

(A) A copy of the PAL permit along with information 

and data sufficient to demonstrate continuous compliance with the 

emission caps contained in the PAL permit must be maintained in a 

file at the plant site and made available at the request of personnel 

from the commission or any air pollution control program having 

jurisdiction. For facilities that normally operate unattended, this 

information must be maintained at the nearest staffed location within 

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

information must 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 PAL permit. 

(B) The owner or operator shall retain a copy of the PAL 

permit application and any applications for revisions to the PAL, each 

annual certification of compliance under § 122.146 of this title (relating 

to Compliance Certification Terms and Conditions), and the data relied 

on in certifying the compliance for the duration of the PAL plus five 

years. 

(C) A semiannual report shall be submitted to the executive director within 30 days of the end of each reporting period that 

contains: 

(i) the identification of owner and operator and the 

permit number; 

(ii) total annual emissions (in tons per year) based 

on a 12-month rolling total for each month in the reporting period; 

(iii) all data relied upon, including, but not limited 

to, . any quality assurance or quality control data, in calculating the 

monthly and annual PAL pollutant emissions; 

(iv) a list of any facility modified or added to the 

major stationary source during the preceding six-month period; 

(v) the number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with 

zero and span calibration checks), and any corrective action taken. This 

may be satisfied by referencing the PAL permit number in the semiannual report for the site submitted under § 122.145 of this title (relating 

to Reporting Terms and Conditions); 

37 TexReg 1674 March 9, 2012 Texas Register 

(vi) a notification of a shutdown of any monitoring 

system, whether the shutdown was permanent or temporary, the reason 

for the shutdown, the anticipated date that the monitoring system will 

be fully operational or replaced with another monitoring system, and 

whether the emissions unit monitored by the monitoring system continued to operate, and the calculation ofthe emissions ofthe pollutant 

or the number determined by method included in the permit; and 

(vii) a signed statement by the responsible official, 

as defined in § 122.10 of this title (relating to General Definitions), certifying the truth, accuracy, and completeness of the information provided in the report. 

(D) The owner or operator shall submit the results of 

any revalidation test or method to the executive director within three 

months after completion of such test or method. 

(5) Maintenance of emission control. The facilities covered by the PAL permit will 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. 

(6) Compliance with rules. Acceptance of a PAL permit 

by a permit applicant constitutes an acknowledgment and agreement 

that the holder will comply with all rules and orders of the commission 

issued in conformity with the Texas Clean Air Act and the conditions 

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

rule or PAL permit condition is applicable, the most stringent limit or 

condition will govern and be the standard by which compliance must 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 PAL permit. 

(7) Effective period. A PAL is effective for ten years. 

(8) Absence of monitoring data. A source owner or operator shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for 

a facility during any period oftime that there is no monitoring data, unless another method for determining emissions during such periods is 

specified in the PAL permit special conditions. 

(9) Monitoring system requirements. Failure to use a monitoring system that meets the requirements of this section renders the 

=::...t:..::.=:...:=.c.-=== [is a v1elatien ef the PAL permit]. 

(10) Revalidation. All data used to establish the PAL pol· 

lutant must be revalidated through performance testing or other scientifically valid means approved by the executive director. Such testing 

must occur at least once every five years after issuance of the PAL. 

(11) Renewal. If a PAL renewal application is submitted to 

the executive director in accordance with § 116.196 of this title (relating 

to Renewal of a Plant-wide Applicability Limit Permit), the PAL shall 

not expire at the end of the PAL effective period. It shall remain in 

effect until a renewed PAL permit is issued by the executive director 

or the application is voided. 

(c) Each PAL permit must include special conditions that satisfy the following requirements. 

(1) For the purposes of this subchapter, the definitions of 

the following terms are the same as those provided in 40 Code of Federal Regulations §51.165. 

(CERMS). 

(A) Continuous emission monitoring system (CEMS). 

(B) Continuous emissions rate monitoring system 
(C) Continuous parameter monitoring system (CPMS). 

(D) Predictive emissions monitoring system (PEMS). 

(2) The PAL monitoring system must accurately determine 

all emissions of the PAL pollutant in terms of mass per unit of time. 

Any monitoring system authorized for use in the PAL permit must be 

based on sound science and meet generally acceptable scientific proce~ 

dures for data quality and manipulation. 

(3) The PAL monitoring system must employ one or more 

of the general monitoring approaches meeting the minimum require~ 

ments as described in subparagraphs (A)- (D) of this paragraph. 

(A) An owner or operator using mass balance calcula~ 

tions to monitor PAL pollutant emissions from activities using coating 

or solvents shall meet the following requirements: 

(i) provide a demonstrated means of validating the 

published content of the PAL pollutant that is contained in, or created 

by, all materials used in or at the facility; 

(ii) assume that the facility emits all of the PAL pollutant that is contained in, or created by, any raw material or fuel used in 

or at the facility, if it cannot otherwise be accounted for in the process; 

and 

(iii) where the vendor of a material or fuel that is 

used in or at the facility publishes a range of pollutant content from such 

material, the owner or operator shall use the highest value of the range 

to calculate the PAL pollutant emissions unless the executive director 

determines that there is site~specific data or a site-specific monitoring 

program to support another content within the range. 

(B) An owner or operator using a CEMS to monitor 

PAL pollutant emissions shall meet the following requirements. 

(i) The CEMS must comply with applicable performance specifications found in 40 Code of Federal Regulations Part 60, 

Appendix B. 

(ii) The CEMS must sample, analyze, and record 

data at least every 15 minutes while the emissions unit is operating. 

(C) An owner or operator using CPMS or PEMS to 

monitor PAL pollutant emissions shall meet the following requirements. 

(i) The CPMS or the PEMS must be based on cur~ 

rent site~specific data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of 

operation of the facility. 

(ii) Each CPMS or PEMS must sample, analyze, and 

record data at least every 15 minutes or at another less frequent interval 

approved by the executive director, while the facility is operating. 

(D) An owner or operator using emission factors to 

monitor PAL pollutant emissions shall meet the following requirements. 

(i) All emission factors must be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the 

factors' development. 

(ii) The facility must operate within the designated 

range of use for the emission factor, if applicable. 

(iii) If technically practicable, the owner or operator 

of a significant facility that relies on an emission factor to calculate 

PAL pollutant emissions shall conduct validation testing to determine a 

site-specific emission factor within six months ofPAL permit issuance, 

unless the executive director determines that testing is not required. 

(E) An alternative monitoring approach must meet the 

requirements in paragraph ( 1) of this subsection and be approved by 

the executive director. 

( 4) Where an owner or operator of a facility cannot demonstrate a correlation between a monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the facility, the executive 

director shall: 

(A) establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably 

estimated at such operating point(s); or 

(B) determine that operation of the facility during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation of the PAL. 

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 February 24, 

2012. 

TRD-201201122 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: April 8, 2012 

For further information, please call: (512) 239-2548 

• • • 

TITLE 34. PUBLIC FINANCE 

PART 1. COMPTROLLER OF PUBLIC 

ACCOUNTS 

CHAPTER 3. TAX ADMINISTRATION 

SUBCHAPTER V. FRANCHISE TAX 

34 TAC §3.587 

The Comptroller of Public Accounts proposes an amendment to 

§3.587, concerning margin: total revenue. 

Subsection (e)(1) is amended to clarify that only taxes that are 

imposed by law on a third party, collected by a taxable entity 

and remitted to the taxing authority qualify as flow-through funds. 

Taxes imposed on the taxable entity itself do not qualify as flowthrough funds and are not allowed as a revenue exclusion. Nonsubstantive changes are made to subsection (b)(1) and (3) to 

improve clarity and readability. 

John Heleman, Chief Revenue Estimator, has determined that 

for the first five-year period the rule will be in effect, there will 

be no significant revenue impact on the state or units of local 

government. 

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

five years the rule is in effect, the public benefit anticipated as a 

result of enforcing the rule will be by providing additional guidance for the calculation of franchise tax obligations. This rule 

is proposed under Tax Code, Title 2, and does not require a 

statement of fiscal implications for small businesses. There is 

no significant anticipated economic cost to individuals who are 

required to comply with the proposed rule. 

PROPOSED RULES March 9, 2012 37 TexReg 1675 
Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

Mark R. Vickery, P.G., Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARlNG ON PROPOSED REVISIONS TO 30 TAC 

CHAPTER 116 AND TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) will conduct a public 

hearing to receive testimony regarding proposed revisions to 30 Texas Administrative 

Code (TAC) Chapter 116, Control of Air Pollution by Permits for New Construction or 

Modification, §§116.12, 116.150, 116.151, 116.180, and 116.186, and corresponding 

revisions to the state implementation plan (SIP) under the requirements of Texas 

Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter 

B; and 40 Code of Federal Regulations §51.102 of the United States Environmental 

Protection Agency (EPA) concerning SIPs. 

The proposed rulemaking would remove a reference to flexible permits in the definition 

of plant-wide applicability limit, include references to federal terminology, and state 

that the failure to use monitoring required in a plant-wide applicability limit permit 

would render that permit invalid. 

The commission will hold a public hearing on this proposal in Austin on March 29, 

2012, at 1o:oo a.m. in Building E Room 201S, at the commission's central office located 

at 12100 Park 35 Circle. 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 be permitted during the hearing; 

however, commission staff members will be available to discuss the proposal 30 minutes 

prior to the hearing. 

Persons who have special communication or other accommodation needs who are 

planning to attend the hearing should contact Sandy Wong, Office of Legal Services at 

(512) 239-1802. Requests should be made as far in advance as possible. 

Written comments may be submitted to Michael Parrish, MC 205, Office of Legal 

Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 

78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: 

http:jjwwws.tceq.texas.govjrulesjecomments/. File size restrictions may apply to 

comments being submitted via the eComments system. All comments should reference 

Rule Project Number 2012-015-116-AI. The comment period closes April9, 2012. 

Copies of the proposed rulemaking can be obtained from the commission's Web site at 

http:jjwww.tceq.texas.govjnavjrulesjpropose_adopt.html. For further information, 

please contact Blake Stewart, Air Permits Division, (512) 239-6931. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq.texas.govjgotojcustomersurvey 

printed on recycled paper 
ADJACENT STATES MAILING LIST 

Mr. Michael Vince, Administrator 

Air Quality Assessment Division 

Louisiana Department of Environmental Quality 

Office of Environmental Assessment 

P.O. Box 4314 

Baton Rouge, Louisiana 70821-4314 

Mr. Mike Bates, Chief 

Air Division 

Arkansas Department of Environmental Quality 

5301 N orthshore Drive 

North Little Rock, Arkansas 72118-5317 

Mr. Eddie Terrill, Director 

Air Quality Division 

Oklahoma Department of Environmental Quality 

P.O. Box 1677 

Oklahoma City, Oklahoma 73101-1677 

Ms. Mary Uhl, Bureau Chief 

New Mexico Environmental Department 

Air Quality Bureau 

1301 Siler Road, Building B 

Santa Fe, New Mexico 87507 
Bryan W. Shaw, Ph.D., Chairman 

Carlos Rubinstein, Commissioner 

Toby Baker, Commissioner 

Zal{ Covar, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUAUTY 

Mr. Carl Edlund, P.E. 

Protecting Texas by Reducing and Preventing Pollution 

May3, 2012 

Director, Multimedia Planning and Permitting Division 

United States Environmental Protection Agency, Region 6 

1445 Ross Avenue, Suite 1200 

Dallas, Texas 75202-2733 

Dear Mr. Edlund: 

As part of U.S. Environmental Protection Agency's (EPA) review of rules submitted by the Texas 

Commission on Environmental Quality (TCEQ or Commission) to address the 1997 eight-hour 

ozone National Ambient Air Quality Standard and New Source Review Reform (NSRR) in 2006 

and 2011, you requested TCEQ address several issues. The TCEQ responds to your request in 

tw'o ways. First, on February 22, 2012, the Commission proposed rulemaking to amend five 

rules to ensure that TCEQ's NSRR rules are approvable as revisions to the Texas State 

Implementation Plan (SIP). These rules were published in the March 9, 2012 edition of the 

Texas Register and the Commission has received comments on the proposed rules. To expedite 

. federal approval, the TCEQ requests that EPA "parallel process" these revisions to the Texas SIP 

in accordance with 40 Code of Federal Regulations (CFR) Part 51, Appendix V. 

Second, we have prepared responses to the remaining issues for which rulemaking is not 

required. The TCEQ's responses to these issues are described below. 

Compliance with Federal Clean Air Act (FCAA) § 11oa) 

Background 

EPA adopted its NSRR rules by publication in the December 31, 2002 issue of the Federal 

Register.1 Subsequently, the clean unit and pollution control permit portions of the NSRR rules 

were vacated by the D.C. Circuit Court of Appeals. 2 After TCEQ adopted new and amended ru1es 

in January 2006 to implement the three surviving NSRR program components and submitted 

those as revisions to the Texas SIP, EPA proposed disapproval in 2oog,a and then took final 

action to disapprove the rules on September 15, 2010.4 In August 2010, TCEQ initiated 

rulemaking to address EPA's proposed disapproval; that rulemaking amended several, but not 

all, of the rules which were the subject of the 2006 rulemaking. Those changes were adopted in 

February 2011 and were submitted to EPAfor approval as part of the Texas SIP with a request 

that EPA also consider the rules amended and adopted by the Commission on January 11, 2006, 

effective on February 1, 2006. 

1 67 Fed. Reg. 80186 (December 31, 2002). 2·New York v. United States, 413 F.3d 3 (D.C. Cir. ::was). 

3 74 Fed. Reg. 48467 (September 23, 2009). 

4 75 Fed. Reg. 56424. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq.texas.gov/customersurvey 
Mr. Carl Edlund, P.E. 

EPA R6 for NSRR 2012 

Page 2 

This letter supplements those three rulemakings,s and addresses EPA's concerns regarding 

compliance with FCAA § 11 oO) for the three basic program components of NSRR: the revised 

baseline for determining pre-change ·emissions, the actual-to-projected actual test for 

determining post-change increases, and the Plant-wide Applicability Limit (PAL). Although 

EPA previously determined, as stated in the New Source Review (NSR) Supplemental Analysis 

dated November 2002, that the implementation of the federal NSRR rules would be 

environmentally beneficialJ EPA requested that TCEQ provide an analysis of how TCEQ's 

rule makings that implement these changes meet the FCAA § uoQ). 

'W'hen EPA adopted its NSRR rules,6 it expanded its demonstration requirements to include not 

just different definitions but also different programs in the EPA's revised major NSR 

regulations. Therefore, to be approved as meeting the 2002 revised major NSR SIP 

requirements, a State submitting a customized major NSR SIP revision must demonstrate why 

its program and definitions are at least as stringent as the revised major NSR base program.? 

Moreover, because there is an existing Texas Major NSR SIP, the submitted changes to the 

major NSR SIP must meet the anti-backsliding provisions of the FCAA in§ 193, and meet' the 

requirements in§ 110(1) which provides that EPA may not approve a SIP revision if it will 

interfere with any applicable requirement concerning attainment and reasonable further 

progress or any other applicable requirement of the Act. Furthermore, any submitted SIP 

revision must meet the applicable SIP regulatory requirements and the requirements for SIP 

elements in Section 110 of the Act) and be consistentwith applicable statutory and regulatory 

requirements. These can include, among other things, enforceability, compliance assurance, 

replicability of an element in the program, accountability, test methods, and whether the 

submitted rules are vague. There are four fundamental principles for the relationship between 

the SIP and any major NSR permits that implement the major NSR program. These four 

principles as applied to the review of a major or minor NSR SIP revision include: (1) the baseline 

emissions from a permitted source be quantifiable; (2) the NSR program be enforceable by 

specifying clear, unambiguous, and measurable requirements, including a legal means for 

ensuring the sources are in compliance with the NSR program, and providing means to 

determine compliance; (3) the NSR program's measures be replicable by including sufficiently 

specific and objective provisions so that two independent entities applying the permit program's 

procedures would obtain the same result; and (4) the major NSR permit program be 

accountable) including means to track emissions at sources resulting from the issuance of 

permits and permit amendments. s 

sIn response, TCEQ provided comments. regarding EPA's proposed disapproval in 2009, and subsequently adopted 

changes to 30 TAC § 116.16o(which were submittedto and approved by EPA in 2010). TCEQ also adopted rules to 

implement the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS) in 2005, which EPA included in 

its ~009 and 2010 disapproval actions. TCEQ responded by amending rules and submitting them to EPA in 2011; 

EPA approved most of these changes on December 28,2011 (76 Fed. Reg. 81371). Changes. to 30 TAC § 116.150 

remain for EPA review as part of the NSRR n!lemakings. 6· EPA's NSRR rules were promulgated on December 31, 2002 (67 Fed. Reg. 80186) and reconsidered with changes 

on November7. 2003 (68 Fed. Reg. 63021). 

7 67 Fed. Reg. 8o186, at 80241 (December 31, 2002). 

a See EPA's.Aprll16, 1992, "General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 

1990" (57 Fed. Reg. 13498) (General Preamble). 
Mr. Carl Edlund, P.E. 

EPA R6 for NSRR 2012 

Pages 

TCEQ Rules Comply with the§ 110(1) of the FCAA 

The TCEQ's existing NSRR rules meet the applicable SIP regulatory requirements and the 

requirements for SIP elements in Section 110 of the FCAA, and are consistent with applicable 

statutory and regulatory> requirements; the sections for which rule amendments were proposed 

on February 22, 2012 also meet these requirements. Therefore, TCEQ has demonstrated in the 

submitted and proposed rulemakings that TCEQ's major NSR SIP meets all requirements and is 

approvable as a revision to the SIP. 

However, given the changes in the rules, via three rulemakings noted above, TCEQ has not 

accumulated data for permits issued under the final version of the rules and therefore has no 

historical data to perform a quantitative analysis of emission reductions to supplement the 

associated rulemaking. In addition to the SIP submittals provided to EPA in 2006 and 2011, 

and the 2012 proposed rules and preamble, the following discussion is provided to support the 

TCEQ's position that its NSRR rules are approvable as revisions to the Texas NSR SIP. 

Change in which years can be used to establish the baseline emissions (also known as ''2 in 10") 

EPA's NSRR rules changed the calculation methodology for determining baseline actual 

emissions for use in major NSR applicability determinations. NSRR allows the use of the 

highest actual emissions from any consecutive 24-month period within the previous 10 years in 

place of the actual emissions for the two years prior to start-of-construction when establishing 

baseline emissions. This change accounts for normal business cycles which produce periods of 

lower emissions while allowing facilities to pursue operational and physical changes in a timely 

manner. TCEQ included EPA's baseline determination method in its rules. 

The primary benefit of the "2 in to" rule is allowing applicants who want to use a two-year 

period that is not the two-years immediately prior to the submittal of the application. An 

applicant submitting a permit application under the "2 in 10" baseline provisions is required to 

submit emissions documentation for the 24 month period selected as representative; however, 

there is no requirement to submit documentation for the average emissions for the two years 

prior to the start of construction unless those were the representative years selected by the 

applicant. Therefore, TCEQ has no data currently available which would allow a comparison of 

the emission increases/decreases under the NSRR rules to what those emission changes would 

have been in the absence of NSRR. Air Quality Permit Applications (whether only for minor 

sources, or whether major NSR is also triggered) are reviewed under the rules in effect at the 

time of application submittal and, for major NSR, at pennit issuance. Therefore, TCEQ has not 

requested the additional information since it was not required at the time of the review. 

Adoption and implementation of the "2 in to" baseline provisions is not expected to interfere 

with any applicable requirement concerning attainment and reasonable further progress or any 

other applicable requirement of the FCAA. In addition, these rules do not change existing 

requirements for obtaining offsets for nonattainment permitting and considering all sources for 

prevention of significant deterioration (PSD) permitting. 

9 TCEQ excluded malfunction emissions from baseline calculations or projected actual emissions (as those terms are 

defined in 30 TAC § 116.12(3)(E) and (29)), and in compliance determinations as required by§ n6.t86{a), both of 

which arc more stringent than EPA's major NSR program. 
Mr. Carl Edlund, P.E. 

EPA R6 for NSRR 2012 

Page4 

In addition, the TCEQ processes thousands of air quality authorizations every year. A 

substantial number of these actions occur at sites that are major sources which used the "2 in 

10" baseline provisions to determine major NSR applicability. A significant number of these 

major sources are located in the Beaumont-Port Arthur and Houston-Galveston-Brazoria areas 

and are subject to the stringent SIP requirements for control of volatile organic compounds 

(VOC) and nitrogen oxides (NOx) under Title 30 Texas Administrative Code (TAC) Chapters 115 

and 117. In addition, sources undergoing construction or modification which are not subject to 

the best available control technology (BACT) or lowest achievable emission rate (IAER) major 

NSR requirements must still comply with Texas' BACT requirements in 30 TAC 

§ 116.11t(a)(2)(C). These additional limitations assist in ensuring that there is not backsliding 

from control requirements for VOC and NOx. 

Use of actual to projected future actual test for non-utility (as well as utility) sources 

EPA's NSRR rules also allow the use of the projected future actual test for non-utility sources in 

determining NSR applicability. This option was previously allowed for utility sources only. This 

change is a voluntary al~ernative to the actual-to-potential to emit test. Either option may be 

used when determining project increases for use in determining the applicability of major NSR 

requirements. TCEQ implemented the EPA rule. 

An applicant utilizing the actual-to-projected-actual test would not have submitted the 

information for the actual to potential to emit test since the information would be irrelevant to 

the review. TCEQ has no data currently available which would allow a comparison of the 

emission increases/ decreases under the NSRR rules to what those emission changes would have 

been in the absence of NSRR. TCEQ is relying on EPA to provide guidance on how to ·properly 

project future emissions, how those emissions should be tracked, and which type of future 

emissions can be excluded for any project. 

Adoption and implementation of the actual-to-projected-actual test is not expected to interfere 

. with any applicable requirement concerning attainment and reasonable further progress.or any 

other applicable requirement of the FCA.A. In addition, these rules do not change existing 

requirements for obtaining offsets for nonattainment permitting and considering all sources for 

PSD permitting. 

In addition, sources undergoing construction or modification which are not subject to the BACT 

or LAER major NSR requiren1ents must still comply with Texas! BAct requirements in 

SIP-approved 30 TAC § 116.111(a)(2)(C). This backstop results in TCEQ's conclusion that 

changes to air quality as a result of implementing NSRR should be neutral with respect to 

reasonable further progress. 

Plant-wide Applicability Limit' 

The Plant-wide Applicability Limit sets a cap for a site's emissions of a regulated pollutant. 

Changes made at the site are not subject to major NSR review as long as the emissions of the 

regulated pollutant remain below the PAL cap. EPA's PAL rules are a voluntary option that 

provides "the ability to manage facility-mde emissions without triggering major NSR review" 

which will facilitate the ability of companies "to respond rapidly to changing market 
Mr. Carl Edlund, P.E. 

EPA R6 for NSRR 2012 

Pages 

conditions. "10 EPA specifically stated that the PAL allows avoidance of the major NSR 

permitting process when a company makes "alterations to the facility or individual emission 

units.''u When EPA adopted its PAL rules, both its Technical Support Document12 and its 

Supplemental Analysis13 provided EPA's technical background information used to support the 

rules; Appendix A to the Supplemental Analysis is the report of the "Flexible Permit Pilot" 

permit. EPA concluded that, overall, the use of emission caps in PAL-type permits would 

actually reduce emissions in various industrial categories for various pollutants1 based on the 

real VOC reductions achieved from three specific industrial categories, and thus be 

environmentally beneficial in enforceable permits.14 

In addition, the monitoring, recordkeeping, and reporting (MRR) requirements required to 

demonstrate compliance with the PAL may have the added benefit of optimizing operations due 

to improved monitoring. Optimization of operations generally has an associated reduction in air 

emissions which could result in a modest contribution toward reasonable further progress. 

The characteristics of PALs provide benefits to both the public and the regulated entities that 

utilize them. These characteristics include: use of a cap for groups ofemission sources on a 

pollutant specific basis, operational flexibility, regulatory certainty, no circumvention of major 

NSR, detailed MRR requirements, and environmental benefit. Texas has had a small number of 

sites take advantage of the PAL option under the federal NSRR rules1 and only two were issued 

after the TCEQ adopted the n1le amendments in 2011, one in Harris County and one in Jefferson 

County. This is an insignificant percentage of the number of permits currently authorized 

annually in Texas, which is typically more than 14~000 permits. Because TCEQ has issued only 

two PAL permits since the majority of the rules were adopted by TCEQ1 no data exists· to 

determine whether the PAL program ~ould adversely affect air quality. 

In addition, the PAL for a specific pollutant is based upon baseline actual emissions for that 

pollutant. Any future construction or modifications under the PAL which are not subject to the 

BACf or lowest achievable emission reduction major NSR requirements must still comply with 

Texas' BACT requirements in 30 TAC § n6.111(a)(2)(C). In some cases, controls beyond those 

accepted as BACT for minor NSR may be required to meet the PAL cap. Sources under a PAL 

located in the Beaumont-Port Arthur and Houston-Galveston-Brazoria areas are also subject to 

the stringent SIP requirements under 30 TAC Chapters 115 and 117. This backstop results in 

TCEQ's conclusion that changes to air quality as a result of implementing the PAL portion of 

NSRR will be neutral in affect to air quality reasonable further progress. 

lo 67 Fed. Reg. 80186,80189 (December 31, 2002). 

tl EPA's use of the term "facility" is understood to mean the entire plant site. In contrast, the Texas Clean Air Act 

defines "facility" very narrowly and it is analogous to the EPA term "emissions unit." 1101. Technical Support Document for the Pl'evention of Significant Deterioration and Nonattainment Area New Source 

Review Regulations, United States Environmental Protection Agency, Office of Air Quality Planning and Standards 

(November 2002). 

13 New Source Review Improvements, Supplemental Analysis of the Environmental Impact of the 2002 Final NSR 

Improvement Rules, United States Environmental Protection Agency (November 21, 2002). 

l4 I d., pp. 2, and 6-8, and Appendix A, Executive Summary, page 4· 
Mr. Carl Edlund, P.E. 

EPA R6 for NSRR 2012 

Page6 

Specific Questions Raised btL EPA Region 6 

Whether TCEQ's Plant-wide Applicability Limit (PAL) Permits are Practically Enforceable 

A permit is practically enforceableif permit conditions establish clear legal obligations and allow 

compliance with those obligations to be verified. In its final rule adopting the PAL rules, EPA's 

notice discusses the MRR requirements for a PAL permit, and EPA characterized these 

requirements as addressing a number of issues associated with practical enforceability of 

PALs. 15 EPA requested TCEQ demonstrate that the TCEQ~s PAL rules will result in PAL permits 

that are practically enforceable, because the permit provisions specify both a technically 

accurate limitation as well as the portions of the source subject to the limitation, the time period 

for the limitation, and the method to determine compliance, including appropriate MRR 

requirements. The TCEQ rules that satisfy the applicable federal PAL requirements, as 

established in EPA's rules, are as follows: 

Technically accurate limitation and identification ofthe portions of the source that are 

subject to the limitation. · 

Texas established its PAL program based on 30 TAC §§ 116.180, 116.182, n6.186(a)7 and 

116.188. These rules satisfy the Federal requirements in 40 CFR 51.165(±)(3)(i)~ (f)(4)(i)(A) & 

(E), & (f)(6)(1) and 51.166(w)(3)(i), (w)(4)(i)(a) & (e), & (w)(6)(1), and therefore render the 

program, and PAL permits issued under the program, practically enforceable. 

The time period for the limitation 

Texas rules state that the PAL limit must be met on a 12-month rolling average [30 TAC §§ 

116.182(3) and n6.186(a)]. These rules meet the federal requirements in 40 C:FRst.165COC3)(i) 

and (0(4)(i)(A) & (E) and 51.166(w)(3)(i) and (w)(4)(i)(a) & (e), and therefore render the 

program, and PAL permits issued under the program, practically enforceable. 

The method to determine compliance, including appropriate MRR 

Detailed MRR that is consistent with the Federal PAL requirements, and also meet the 

requirement for practical enforceability is found in 30 TAC § 116.186. Specifically, the 

requirements in§§ n6.186(b)(4), (b)(6) 7 (b)(8), (b)(9) and (c) meet 40 CFR 51.16s(f)(13)-(14) 

and 51.166(w)(13)~(14), and therefore render the program, and JlAL pennits issued under the 

program7 practically enforceable. 

Whether the TCEQ rules meet 40 CFR 51,166(w)(7)(iv), 51.165(a)(1)(xxxv)(A)(2) and (B)(1), 

and 51.166(b)(47)(i)(a) and (ii)(a) with respect to inclusion of malfunction emissions. 

A PAL permit limit can be generally enforced like any other permit limit~ and the TCEQ has 

authority to enforce all permit requirements; this authority is found in Tex. Water Code, 

Chapter 71 and Tex. Health & Safety Code§§ 382.011,382.015,382.016,382.0515,382.0516, 

382.022, 382.023, and 382.085, as well as in certain rules found in 30 TAC Chapter 101, 

Subchapters A and F. In addition, TCEQ rule 30 TAC § 101.201 requires regulated entities, 

l5 See 67 Fed. Reg. 80186, at 80211-80214 (December 31, 2002). 
Mr. Carl Edlund, P .E. 

EPA R6 for NSRR 2012 

Page7 

regardless of whether they have a PAL permit, to record (and in some cases report) emissions 

events, which includes unscheduled maintenance, startup, and shutdown (MSS) activity 

emissions. Emissions from malfunctions are unauthorized emissions as defined in 30 TAC 

§ 101.1(107); therefore, they are unauthorized (non-compliant) emissions. Exceedances of a 

PAL limit, such as emissions from malfunctions, are unauthorized emissions and subject to 

enforcement. TCEQ represented to EPA Region 6 that unscheduled MSS activity emissions are 

functionally equivalent to EPA's definition ofmalfunction. 16 Finally, PAL permits are 

incorporated in TCEQ's Title V permits by reference. A citation for violating a limit in a PAL 

permit could be included in an enforcement case. 

The TCEQ does not "reward'' non-compliance by inclusion. Exclusion of these emissions when 

the PAL is established means that TCEQ's rules are more stringent than EPA's requirements. In 

addition, TCEQ does not include malfunction emissions as part of the calculation of baseline 

emissions or projected actual emissions [as those terms are defined in 30 TAC §§ 116.12(3)(E) 

and (29)]. This means that TCEQ is at least as stringent as or more stringent than EPA's 

requirement. 

Furthermore, EPA has approved similar rules in other states. For example, South Carolina 

omitted the word ''malfunction" from its definitions of "baseline actual emissions" and 

''projected actual emissions."17 In its adoption of these definitions, the state said this omission 

was justified because the South Carolina Department of Health and Environmental Control had 

never permitted malfunction emissions, and concluded that there was no advantage to including 

malfunction emissions in either calculation. EPA concurred that omitting malfunctions does 

not lessen the stringency of South Carolina's NSR program. 1B 

Similarly, the rules adopted by the Florida Department of Environmental Protection19 do not 

require the inclusion of emissions associated with malfunction. Instead, Florida relies only on 

quantifiable emissions that can be verified, for both projected actual emissions and baseline 

actual emissions. Since this approach "Will not prevent malfunctions from being exceedances of 

applicable standards, and does not affect obligations regarding excess emissions related 

notifications required by state or federal law, EPA determined that this difference does not make 

F1orida·s program less stringent than the federal program.20 TCEQ,s similar approach is 

therefore also more stringent than the federal rules. 

VVhether information generated by a monitoring system required by a PAL permit condition 

can m.eet the requirements for admissibility in a judicial proceeding 

Texas statutes and TCEQ rules adopted under those statutes which e::,i:ablish the jurisdiction of 

the TCEQ, as well as pern1it conditions, require owners and operators of facilities that may emit 

air contaminants, which are authorized for construction and operation, to maintain data 

16 Letter from John Steib, Deputy Director, TCEQ Office of Compliance & Enforcement to John Blevins, Director, 

Compliance Assurance and Enforcement Division, USEPA, Region-6 Dallas, Aprilq, 2007. 17 South Carolina Code Section R61-62.1, Standard 7(b)(4) and (b)(4)(i)(a), and (b)(41) and (b)(41)(ii)(b), and 

Standard 7.1(b)(2) and (b)(2)(B)(i)(a), and (b)(ll) and (b)(u)(B)(ii). 18 Proposed approval 72 FR 52031, 52035 (Sept. 12, 2007); final approval 73 FR 31368 (June 2, 2008). 

l9 Florida Administrative Code §62-210.200(36) and (244). 20 Proposal upproval73 Fed. Reg.1B466, 18470~71 (April4, 2008); approval73 Fed. Reg. 36435 (June 27, 2008). 
Mr. Carl Edlund, P.E. 

EPA R6 for NSRR 2012 

PageS 

necessary to demonstrate compliance with the terms and conditions of their authorizations. 

That authority is found in Tex. Health & Safety Code§§ 382.011, 382.012, 382.014, 382.016, 

382.051, 382.0513, 382.0514, and 382.0515; Tex. Water Code§§ 5.013(a)(11), 7.179, 7.180, and 

7.181; and TCEQ rules 30 TAC .§§ 116.111, 116.115 (which are, for the most part, SIP approved) 

and§§ 116.711 and u6.715. Additionally, the Texas Legislature bas provided the TCEQ with the 

enforcement authority in Tex. Water Code Chapter 7 to initiate an action to enforce the statutes 

within the jurisdiction of the TCEQ, such as 30 TAC §.§ 7 .. 179, 7.180, and 7.181. 

The TCEQ adopted the requirement that the Texas Rules of Evidence, as applied in nonjury civil 

cases in the district courts of this state, be followed in all hearings. 21 The initial factor affecting 

admissibility is relevance, and the relevance of offered evidence - evidence of non-compliance in 

an enforcement hearing- will support admissibility. ·However, if the data is not sufficient to 

support admissibility, or is non-existent, then the executive director may pursue an enforcement 

action for failing to· maintain the data necessary to demonstrate compliance. 

Conclu.c;ion 

TCEQ remains obligated under its SIP and the FCAA to prevent emission increases due to any 

relaxation in requirements. The major NSR permitting program will continue to serve its 

intended role of assuring new and significantly modified sources are well controlled, as will the 

·TCEQ's minor NSR program. And, although permitting is considered to be a control measure, 

NSR is not the primary control measure for attainment of the NAAQS. . This backstop results in 

TCEQ's conclusion that changes to air quality as a result of implementing NSRR should be 

neutral with respect to attainment and maintenance of the NAAQS and reasonable further 

progress as required by the FCAA. 

I am confident that the proposed rule changes together with the information submitted in this 

correspondence will ensure SIP approval of the rules adopted to implement NSR Reform. If you 

have any questions or need further information, please contact Steve Hagle 7 Deputy Director for 

TCEQ Office of Air. 

Sincerely, 

cc: Richard Hyde, P.E., Deputy Executive Director 

Ramiro Garcia Jr., Deputy Director, Office of Compliance and Enforcement 

Steve Hagle, P .E.: Deputy Director, Office of Air 

Caroline Sweeney, Deputy Director, Office of Legal Services 

Mike Wilson, P .E., Director, Air Permits Division, Office of Air 

21 30 TAC § 80.127. 
Testimony
INDEX OF WRITTEN TESTIMONY 

Reference Number Submitted By 

W-1 Baker Botts L.L.P., on behalf of the Texas Industry Project 
BAKER BOTTS LLP 

April 9, 2012 

005580.0118 

ONE SHELL PlAZA 

91 0 LOUISIANA 

HOUSTON, TEXAS 

77002·4995 

TEL +1713.229.1234 

FAX + 1 713.229.1522 

www. bakerbotts.com 

Zachary L. Craft 

TEL + 1 713.229.1133 

ABU DHABI 

AUSTIN 

BEIJING 

DALlAS 

DUBAI 

HONG KONG 

HOUSTON 

LONDON 

MOSCOW 

NEW YORK 

PALO ALTO 

RIYADH 

WASHINGTON 

Michael Parrish 

MC205 

FAX + 1 713.229.7933 

zochary.craft@bokerbotts.com 

Office of Legal Services 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 78711-3087 

512.239.4808 (fax) 

Re: TIP Comments on NSR Reform Rule Project Number 2012-015-116-AI 

Dear Mr. Parrish: 

The Texas Commission on Environmental Quality ("TCEQ") has invited public 

comments on the above-referenced rule project proposal. These comments are submitted on 

behalf of the Texas Industry Project (''TIP"), a group of 70 companies in the chemical, refining, 

oil and gas, electronics, forest products, terminal, electric utility, and transportation industries 

with operations in Texas. 

TIP supports TCEQ's efforts in this rule project to address EPA's concerns with 

the Texas New Source Review (''NSR") program. TIP members are affected by virtually every 

aspect of the NSR program and share TCEQ's objective of revising its NSR regulations to ensure 

their prompt approval by EPA into the Texas State Implementation Plan ("SIP"). 

However, TIP also has concerns about certain features of the proposal that relate 

to Plantwide Applicability Limit (''PAL") permits. These concerns, and TIP's requested changes, 

are discussed below. 

1. "Failure to Use'' a PAL Permit Monitoring System 

TIP requests that TCEQ revise 30 Tex. Admin. Code § 116.186(b)(9) to add a 

sentence after TCEQ's proposed language, to read as follows: 

HOU02:1247905.4 

(9) Monitoring system requirements. Failure to use a 

monitoring system that meets the requirements of this 

section renders the PAL permit invalid. 

shall specify the monitoring systems that meet the 

requirements of this section and specify the data 

substitution methods for determining PAL pollutant 

emissions during monitor downtime, and such monitor 

downtime by itsel(shall not be considered a failure to use 
BAKER BOTTS LL.P. 

Michael Parrish - 2 -

the monitoring system if compliance with the requirements 

of paragraph {b)(8) above is demonstrated. Monitor 

downtime includes periods when quality-assured 

monitoring data are not available for any reason, including 

equipment malfunction. repair, periodic maintenance, and 

quality assurance activities. 

April 9, 2012 

The requested language is consistent with TCEQ's intent for the rule and its 

treatment ofthe issues in the preamble. See 37 Tex. Reg. 1661, 1663 (Mar. 9, 2012). 

The requested language is important because it unambiguously forecloses the 

possibility that TCEQ's rule would be interpreted to require a PAL to be invalidated for a 

monitoring device malfunction or other downtime. Only the text of the rule that TCEQ 

ultimately promulgates will become part of the SIP and be enforceable through EPA 

administrative enforcement or in a federal court through a Federal Clean Air Act citizen suit. 

There can be no assurance that future enforcement or litigation decisions will be made in 

consultation or deference to TCEQ's position as expressed in a preamble. 

The requested language is also consistent with the federal PAL rules and should 

not prevent prompt EPA SIP-approval: "[T]he phrase 'failure to use' in EPA's rule means a 

failure to install or failure to operate the prescribed monitoring device or system to operate under 

a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the 

1nonitoring device or system." 37 Tex. Reg. at 1663; see also 75 Fed. Reg. 56,423, 56,438 (Sept. 

15, 201 0) (indicating that EPA intended to require state PAL programs to provide for 

"invalidating the PAL ifthere is no compliance with the required monitoring" (emphasis added)). 

2. Distinction Between PAL Permit Monitoring and Other lVIonitoring 

TIP also requests that TCEQ specify the monitoring requirements that are subject 

to 30 Tex. Admin. Code § 116.186(b )(9) when issuing, changing, or renewing individual permits 

that include PALs. The permit invalidation language in the federal PAL rules should logically be 

construed only to apply to the minimum monitoring requirements of the PAL rules themselves, 

not to supplemental or non-PAL-pollutant monitoring requirements or to monitoring systems that 

exceed minimum PAL requirements. TIP's requested language above is consistent with this 

approach. 

Conclusion 

TIP appreciates your consideration. Please do not hesitate to contact me if you 

have questions. 

HOU02:1247905.4 
BAKER BOTTS LLP 

Michael Parrish 

HOU02:1247905.4 

.., - ,) - April 9, 2012 
INDEX OF ORAL TESTIMONY 

Public Hearing 

March 29, 2012, in Austin 

TCEQ received no oral testimony for this rulemaking. 
- 1 -

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: March 29, 2012 

Time: 10:00 am 

Rule Project No.: 2012-015-116-AI 

Short Title: NSR Reform Revisions 

Location: Building E, Room 2018, at the commission's central office located at 12100 Park 35 Circle 

Concerning: The proposed revisions 30 TAC Chapter n6, Control of Air Pollution by Permits for New Construction or Modification, and 

corresponding revisions to the state implementation plan. 

Name Representing Presenting Oral Testimony? 

(Please Print) (Circle One) ~---------~ 

~No 

~ ------- Yes No 

{;~ ~ Yes No 

/ l\JV' ~V_... 

Yes No 

./\ t/ \ ~~ Yes No 

pz \. 

\f'l v Yes No 

,0\. ;' 

/ NV (A).,," Yes No 

/ Yes No 
HEARING OFFICER REPORT 

I am the hearing officer assigned to conduct the public hearing regarding the 

proposed revisions 30 TAC Chapter 116, Control of Air Pollution by Permits for 

New Construction or Modification, and corresponding revisions to the state 

implementation plan 

A public hearing was scheduled for 10:00 a.m. on March 29, 2012, in building E, 

room 2018, at the commission's central office located at 12100 Park 35 Circle. 

At 9:30 a.m., the room was open and TCEQ staff members were available to 

discuss the proposal. At 1o:oo a.m., TCEQ staff and a court reporter were present 

and ready to open the hearing for public comment. After waiting for ten 

minutes, no one had arrived to make comments on the record. Therefore, the 

public hearing was not formally opened for comment and a transcript was not 

prepared. 

Hearing Officer 

Date signed 
Evaluation
Texas Commission on Environinental Quality 

Interoffice Memorandum 

To: Commissioners Date: July 6, 2012 

Thru: Bridget C. Bohac, Chief Clerk 

Zak Covar, Executive Director 

From: Steve Hagle, P.E., Deputy Director 

Office of Air 

Docket No.: 2011-2229-RUL 

Subject: Commission Approval for Rulemaking Adoption 

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

Modification 

New Source Review Reform Revision 

Rule Project No. 2012-015-116-AI 

Background and reason(s) for the rulemaking: 

On June 10, 2005, the TCEQ submitted amendments to 30 TAC §116.12 to the United 

States Environmental Protection Agency (EPA) as revisions to the New Source Review 

(NSR) State Implementation Plan (SIP) and §116.150 as revisions to the Nonattainment 

New Source Review (NNSR) SIP, both adopted on May 25, 2005. On February 1, 2006, 

the TCEQ submitted amendments to §§116.12, 116.121, 116.180, 116.182, 116.186, 116.188, 

116.190, 116.192, 116.601, and 116.617 to the EPA as revisions to the NSR SIP. On 

September 23, 2009, the EPA published notice of the proposed disapproval of these 

revisions to the Texas SIP (74 Federal Register 48467, September 23, 2009). The EPA's 

final disapproval notice was published September 15, 2010. On March 11, 2011, the 

TCEQ submitted a revised SIP package amending some of these rules to address the 

issues outlined in the EPA's disapproval. On September 30,2011, the EPA expressed its 

intention to propose a conditional approval of the package and requested a dialog to 

resolve certain EPA concerns and facilitate a final approval. This rulemaking addresses 

those concerns. 

Scope of the rulemaking: 

A.) Summary of what the rulemaking will do: 

• Remove obsolete language referencing flexible permits in the definition of Plantwide applicability limit (PAL) effective date (§116.12(23)); 

• Include text that provides that a reference to "facility" also refers to the federal rule 

term "emissions unit" where appropriate in §116.150 and § 116.151, both concerning 

NNSR permitting; 

• Include a reference to the federal definition of major stationary source (40 Code of 

Federal Regulations §51.166(b)(1)) and correct a typographical error in a reference 

to a federal rule in §116.18o(a)(5). Note that EPA offered an alternative which was to 

reference the definition of major stationary source in §116.12(17); however, staff 

believes that referencing the federal rule is adequate for SIP approval, will eliminate 
Commissioners 

Page 2 

July 6, 2012 

Re: Docket No. 2011-2229-RUL 

a need to change this cross reference when any changes are made in the future to 

§116.12, and will minimize potential confusion; and 

• Include language in §116.186(b)(g) to indicate that the failure to use a monitoring 

system meeting requirements renders the PAL permit invalid. 

B.) Scope required by federal regulations or state statutes: 

Staff is recommending amendments to §116.12, Nonattainment Review Definitions; 

§116.150, New Major Source or Major Modification in Ozone Nonattainment Areas; 

§116.151, New Major Source or Major Modification in Nonattainment Area Other Than 

Ozone; §116.180, Applicability; and §116.186, General and Special Conditions. 

C.) Additional staffrecommendations that are not required by federal rule or 

state statute: None. 

Statutory authority: 

Statutory authority includes Texas Water Code, §5.102, General Powers; §5.103, Rules; 

§5.105, General Policy; §7.02, Enforcement Authority; §7.107, Violation; §7.301 Definition; 

and §7.302, Grounds for Revocation or Suspension of Permit. Statutory Authority also 

includes Texas Health and Safety Code, §382.017, Rules; §382.002, Policy and Purpose; 

§382.011, General Powers and Duties; §382.012, State Air Control Plan; §382.016, 

Monitoring Requirements; Examination of Records; §382.021, Sampling Methods and 

Procedures; §382.040, Documents; Public Property; §382.051, Permitting Authority of the 

Commission; Rules, §382.0511, Permit Consolidation and Amendment; §382.0512, 

Modification of Existing Facility; §382.0513, Permit Conditions; §382.0514, Sampling, 

Monitoring, and Certification; §382.0515, Application for Permit; and §382.0518, 

Preconstruction Permit. The amendments are also adopted under Federal Clean Air Act, 

42 United States Code, §§7401, et seq., which requires states to submit SIP revisions that 

specifY the manner in which the national ambient air quality standards will be achieved 

and maintained within each air quality control region of the state. 

Effect on the: 

A.) Regulated community: Although the EPA has noted deviations from the federal 

rules for the major NSR SIP in state rules, the Air Permits Division (APD) has required 

applicants to comply with all applicable conditions of major NSR, and therefore, there 

should be no adverse impacts associated with the resolution of these deviations. 

B.) Public: There will be no effect on the public since the APD is currently conducting 

reviews of sources subject to NSR that meet federal definitions and requirements. 

C.) Agency programs: There will be no effect on agency programs since the APD is 

currently conducting reviews of sources subject to NSR that meet federal definitions and 

requirements. 
Commissioners 

Page 3 

July 6, 2012 

Re: Docket No. 2011-2229-RUL 

Stakeholder meetings: No stakeholder meetings were held. Standard notice of this 

action and an opportunity for comment was provided. 

Public Comment: Only one comment letter was received. Texas Industry Project 

requests that the commission add language to §116.186(b)(9) that unambiguously 

forecloses the possibility that the TCEQ rule be interpreted that the malfunction of a 

monitoring device could lead to the invalidation of a PAL permit. Only the rule text is 

enforceable, and there is no assurance that future enforcement or interpretation will be 

made in deference to the commission's position, as expressed in the preamble, that "failure 

to use" a monitoring system refers to installation and does not include malfunctions. 

The phrase "failure to use" in EPA's PAL rule means a failure to install or 

failure to operate the prescribed monitoring device or system to operate 

under a PAL permit, rather than an inadvertent malfunction or maintenance 

downtime of the monitoring device or system. The language §116.t86(b)(9) is 

intentionally identical to that used by EPA in it PAL rules and was chosen to 

ensure the SIP approvability of this adoption. The executive director has no 

formal indication from EPA that it would find other language approvable and 

recommends adopting the language as proposed. 

Significant Changes from Proposal: None. 

Potential controversial concerns and legislative interest remaining after 

proposal and public comment: None anticipated. 

Does this rulemaking affect any current policies or require development of 

new policies? No. 

What are the consequences if this rulemaking does not go forward? If this 

rulemaking does not go forward, federal SIP approval of major NSR permitting will be 

jeopardized. The timing of this rulemaking coincides with EPA's statement to TCEQ staff 

that EPA will propose a conditional approval of all of the NSR Reform and NSR 

N onattainment permitting SIP changes submitted by TCEQ, including those that are part 

of this current rulemaking. The condition to be satisfied is that TCEQ adopts the 

amendments within one year. Although the rule amendments adopted in 2011 are not the 

subject of litigation regarding EPA review of the rules, EPA has agreed with BCCA Appeal 

Group, et al, to take action on the TCEQ's 2011 rules (which includes some rules adopted or 

amended in 2005 and 2006) by summer 2012. TCEQ's proposal on February 22, 2012 will 

assist in that effort. In addition to this rulemaking, on May 4, 2012, the Executive Director 

provided a letter, at the request of EPA Region 6, which contained additional information 

regarding how the commission's rules implementing NSR Reform comply with FCAA § 

110(1). The letter also addresses specific questions raised by EPA Region 6 regarding the 

practical enforceability of PAL permits, TCEQ's treatment of malfunction emissions with 

regard to PAL permits, and the judicial admissibility of monitoring data required by PAL 
Commissioners 

Page4 

July 6, 2012 

Re: Docket No. 2011-2229-RUL 

permits. A copy of the letter is attached is provided in the backup materials for 

informational purposes. 

Are there alternatives to rulemaking? The commission could decline to address the 

EPA's request and wait for further EPA action. 

Key points in the adoption rulemaking schedule: 

Texas Register proposal publication date: March 9, 2012 

Anticipated Texas Register publication date: August 10, 2012 

Anticipated Effective Date: August 16, 2012 

Six~month Texas Register filing Deadline: September 9, 2012 

Agency contacts: 

Michael Wilhoit, 239-1222, Air Permits Division 

Janis Hudson, 239-0466, Environmental Law Division 

Michael Parrish, Texas Register Coordinator, 239-2548 

cc: Chief Clerk, 2 copies 

Executive Director's Office 

Susana M. Hildebrand, P.E. 

Anne Idsal 

Curtis Seaton 

Tucker Royall 

Office of General Counsel 

Michael Wilhoit 

Michael Parrish 
Texas Commission on Environmental Quality Page 1 

Chapter 116- Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2012-015-116-AI 

The Texas Commission on Environmental Quality (commission or TCEQ) adopts 

amendments to §§116.12, 116.150, 116.151, 116.180, and 116.186. 

Section 116.180 is adopted with change to the proposed text as published in the March 

9, 2012, issue of the Texas Register (37 TexReg 1661). Sections 116.12, 116.150, 116.151, 

and 116.186 are adopted without changes to the proposed text and will not be 

republished. 

The amendments to §§116.12, 116.150, 116.151, 116.180, and 116.186 will be submitted to 

the United States Environmental Protection Agency (EPA) as revisions to the State 

Implementation Plan (SIP). 

Background and Summary of the Factual Basis for the Adopted Rules 

On June 10, 2005, the TCEQ submitted amendments to §116.12 to the EPA as revisions 

to the New Source Review (NSR) SIP and §116.150 as revisions to the Nonattainment 

New Source Review (NNSR) SIP, both adopted on May 25, 2005. On January 11, 2006, 

the TCEQ repealed §§116.180 - 116.183, 116.410, and 116.617; amended §§116.12, 

116.150, 116.151, 116.160, and 116.610; and adopted new §§116.121, 116.180, 116.182, 

116.184, 116.186, 116.188, 116.190, 116.192, 116.194, 116.196, 116.198, 116.400, 116.402, 

116.404, 116-406, 116.617, and 116.1200. The TCEQ submitted these to the EPA as 

revisions to the NSR SIP to implement EPA's NSR Reform rules which became final on 
Texas Commission on Environmental Quality Page 2 

Chapter 116- Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2012-015-116-AI 

December 31, 2002. On September 23, 2009, the EPA published notice of the proposed 

disapproval of these revisions to the Texas SIP on September 23, 2009 (74 Federal 

Register 48467). The EPA published the final disapproval notice on September 15, 2010 

(75 Federal Register 56423). 

On February 9, 2011, in response to the EPA's final disapproval, the TCEQ repealed 

§116.121, adopted amendments to §§116.12, 116.115, 116.150, 116.180, 116.182, 116.186, 

116.188, 116.190, 116.192, 116.601, and 116.617; and adopted new §116.127. The 

commission published these amendments in the February 25, 2011, issue of the Texas 

Register (36 TexReg 1305 and 1324). On March 11, 2011, the TCEQ submitted a revised 

SIP package that was based on the rule amendments, with the exception of §116.617, 

adopted on February 9, 2011, and addressed the issues outlined in the EPA's 

disapproval. On September 30, 2011, the EPA expressed its intent to propose 

conditional approval of TCEQ rules implementing the changes to the NSR SIP and the 

NSR Reform and requested a dialog to resolve certain EPA concerns and facilitate a final 

approval. This rulemaking addresses those concerns. 

This rulemaking is at least as stringent as the federal rules it implements because it 

includes the applicable elements of the major NSR and plant-wide applicability limit 

(PAL) permit programs. The rule making action also ensures that the rulemaking, if 

adopted, will meet the requirements of Federal Clean Air Act (FCAA), §110 which, 
Texas ComPJission on Environmental Quality Page 3 

Chapter 116- Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2012-015-116-AI 

among other requirements, requires that the elements of the SIP be enforceable, ensure 

compliance, include replicable elements, and ensure accountability. The specific 

changes to the PAL rules meet these basic requirements. In addition to this rule making, 

on May 4, 2012, the executive director provided a letter, at the request of EPA Region 6, 

which contained additional information regarding how the commission's rules 

implementing NSR Reform comply with FCAA, §110(1). The letter also addresses 

specific questions raised by EPA Region 6 regarding the practical enforceability of PAL 

permits, TCEQ's treatment of malfunction emissions with regard to PAL permits, and 

the judicial admissibility of monitoring data required by PAL permits. 

Section by Section Discussion 

§116.12, Nonattainment and Prevention of Significant Deterioration Review 

Definitions 

The commission adopts the amendment to the definition of the term "Plant-wide 

applicability limit effective date" in §116.12(23) to remove language that references the 

date that a flexible permit was issued. Since PAL permits and flexible permits are 

addressed by two different sets of rules in Chapter 116, it is inappropriate to reference 

flexible permits in the definition of the term PAL effective date. The change removes this 

obsolete language, clarifying permitting requirements and ensuring consistency with 

federal requirements regarding NSR permits. 
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§116.150, New Major Source or Major Modification in Ozone Nonattainment Areas 

The federal term "emissions unit" as defined in federal rules is similar to the term 

"facility" as defined in the Texas Clean Air Act (TCAA). In order to ensure clarity and 

consistency with federal requirements, the commission is adding the language "or 

emissions unit" where the terms "facility" or "facilities" are used (i.e., §116.150(a), (d)(1) 

and (3)). 

§116.151, New Major Source or Major Modification in Nonattainment Area Other Than 

Ozone 

The federal term "emissions unit" as defined in federal rules is similar to the term 

"facility" as defined in the TCAA. In order to ensure clarity and consistency with federal 

requirements, the commission is adding the language "or emissions unitlt where the 

terms "facility" or "facilities" are used in §116.151(a), (c)(1) and (3)). 

In response to EPA's proposed disapproval notice published September 23, 2009, the 

commission's executive director submitted comments replying to EPA's solicitation 

from the TCEQ to comment on EPA's interpretation of Texas law and the Texas NSR SIP 

with respect to the term "facility," stating that it is critical to EPA's understanding of the 

Texas Permitting Program. TCEQ's comments stated, in part, that the definition of the 

term "facility" is one of the cornerstones of the air permitting program in Texas under 

the TCAA. The comments specifically stated that the TCEQ's interpretation of Texas law 
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differs from that of EPA. 

In its final disapproval notice on September 15, 2010 (75 Federal Register 56423), EPA 

carried forward text from its proposed disapproval from September 23, 2009, by stating 

in footnote 7 on page 56433 and also on page 56438, "{i}t is our understanding of State 

law, that a "facility" can be an "emissions unit," i.e., any part of a stationary source that 

emits or may have the potential to emit any air contaminant. A 'facility' also can be a 

piece of equipment, which is smaller than an "emissions unit." A 'facility' can be a 

'major stationary source' as defined by Federal law. A 'facility' under State law can be 

more than one 'major stationary source.' It can include every emissions point on a 

company site, without limiting these emissions points to only those belonging to the 

same industrial grouping (SIC code)." In the same notice in footnote 15 on page 56438, 

EPA acknowledges that TCEQ's definition of "facility" is part of the approved Texas SIP. 

Under the TCAA in Texas Health and Safety Code (THSC), §382.003(6) and in 

§116.10(4), "facility" is defined as "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 considered to be a facility." A facility may constitute or contain a stationary 

source-- a point of origin of a contaminant, as defined in THSC, §382.003(12) and in 

§116.10(15), a definition that is approved into the Texas SIP. As a discrete point, a 
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facility can constitute but cannot contain a "major stationary source" as defined by 

federal law and in the TCEQ's SIP-approved §116.12(17). A facility is subject to major 

and minor NSR requirements, depending on the facts of the specific application. 

The TCEQ and its predecessor agencies have consistently interpreted facility to preclude 

inclusion of more than one stationary source, in contrast to EPA's stated understanding. 

Likewise, TCEQ does not interpret facility to include "every emissions point on a 

company site, even if limiting these emission points to only those belonging to the same 

industrial grouping (SIC code)." The federal definition of "major stationary source" in 

40 Code of Federal Regulations (CFR) §51.166(b)(1)(i)(a) includes the concept of 

multiple emission points and is not equivalent to the state definition of "source" which is 

a single emission point. A "major stationary source" can include more than one 

"emission unit" which is equivalent to "facility'' under Texas law. 

Under major NSR, EPA uses the term "emissions unit" (generally) when referring to 

part of a "stationary source;" TCEQ translates "emissions unit" to mean "facility." The 

commission's SIP-approved Prevention of Significant Deterioration (PSD) permitting 

rule in §116.16o(c)(3) states, "{t}he term 'facility' shall replace the words 'emissions unit' 

in the referenced sections of the CFR." 

TCEQ and its predecessor agencies have applied this interpretation of the term "facility" 
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for more than 30 years. The TCEQ's interpretation of Texas statutes enacted by the 

legislature is addressed by the Texas Code Construction Act (Texas Government Code, 

Chapter 311). More specifically, words and phrases that have acquired a technical or 

particular meaning, whether by legislative definition or otherwise, shall be construed 

accordingly under Texas Government Code, §311.011(b). 

In response to the proposed disapproval, the commission previously considered adding 

the phrase "or emissions unit" in its PAL rules, but did not do so in the nonattainment 

permitting rules because of the long term use of the term "facility" in the Texas 

permitting rules and the approved Texas SIP. EPA approved versions of the 

nonattainment permitting rules into the SIP, including the definition of "facility." 

In order to accelerate the approval of the federal nonattainment permitting program, 

the commission proposed and is adopting the addition of "emissions unit" to §116.150 

and §116.151. 

§116.180, Applicability 

The commission adopts a correction to a typographical error in §116.18o(a)(5) by 

changing a reference to the federal rules from 40 CFR §51.165(iv)(A) to 40 CFR 

§51.165(a)(1)(iv)(A). Additionally, the commission is adding a reference to the federal 

definition of major stationary source in 40 CFR §51.166(b)(1). Adding this reference 
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strengthens the TCEQ's PAL rules by limiting the applicability of a PAL to a source that 

conforms to the federal definition of a major stationary source in 40 CFR §51.166(b)(1). 

The changes clarify permitting requirements and ensure consistency with federal 

requirements regarding NSR permits. 

§116.186, General and Special Conditions 

The commission amends §116.186(b)(g) to state that failure to use the required 

monitoring would render the PAL permit invalid. The commission adopts the change to 

ensure consistency with federal rule requirements. 

In both its proposed and final disapproval notices for the NSR Reform rules (as 

mentioned elsewhere in this preamble), the EPA stated that the specific monitoring 

definitions are essential for the enforceability of and providing the means for 

determining compliance with a PAL program. EPA also specifically stated that one of 

the bases for disapproval of the commission's PAL rules is that the rules lacked a 

mandate that failure of the monitoring system to meet the requirements of this section 

renders a PAL permit invalid. In response, the commission specifically amended its 

PAL rules to address the monitoring systems, and also added §116.186(b)(g) specifying 

that failure to use a monitoring system is a violation of the PAL permit. EPA did not 

provide comment on that amendment, nor on §116.186(b)(g). The commission 

understood that the proposed changes were satisfactory for SIP approval. However, 
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§116.186(b)(9) did not address EPA's concerns, which were related to the installation 

and general use of monitoring systems rather than compliance issues, such as 

monitoring downtime, the latter which is addressed in §116.186(b)(8). As discussed 

elsewhere in this preamble, EPA contacted the commission in 2011 regarding its review 

of the submitted rules and raised the issue of ensuring that the commission's rules 

adequately adopted the EPA's requirement that a PAL permit is invalid if it does not 

require a monitoring system and the system is not installed. 

EPA's general monitoring requirements for PAL permits are in 40 CFR 

§51.165(t)(12)(i)(A) - (D) and §51.166(w)(12)(i)(a) - (d). 40 CFR §51.165(t)(12)(i) and 

§51.166(w)(12)(i) include requirements for a monitoring system in each PAL permit that 

is based on sound science and meets generally acceptable scientific procedures for data 

quality and manipulation; those systems must be one of the four general monitoring 

approaches in the federal PAL rules. 40 CFR §51.165(t)(12)(i)(D) and 

§51.166(w)(12)(i)(d) provide that failure to use a monitoring system that meets the 

applicable federal rule requirements renders the PAL invalid (see discussion in 67 

Federal Register 80211 - 80214, December 31, 2002). Therefore, based on the text and 

context of both the rule and the accompanying preamble, the phrase "failure to use" in 

EPA's rule means a failure to install or failure to operate the prescribed monitoring 

device or system to operate under a PAL permit, rather than an inadvertent malfunction 

or maintenance downtime of the monitoring device or system. The change to 
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§116.186(b)(g) will address EPA's concern that the commission's rules fully incorporate 

all PAL permit requirements. 

Any invalidation of a PAL permit will be subject to necessary and appropriate 

procedures in Texas statutes and TCEQ rules. Texas Water Code (1WC), §7.302, 

regarding Grounds for Revocation or Suspension of Permit, provides the commission 

the authority to revoke and suspend or reissue a permit on prescribed grounds after 

notice and hearing. Prior to any invalidation of a PAL permit, the commission 

anticipates enforcement action that could include a request for revocation. The 

commission generally does not expect occurrence of circumstances which could lead to 

invalidation (e.g., failure to install or use monitoring equipment) and thus few, if any, 

revocation proceedings. 

Final Regulatory Impact Analysis Determination 

The commission reviewed the adopted rulemaking in light of the regulatory impact 

analysis (RIA)requirements of Texas Government Code, §2001.0225, and determined 

that the rulemaking does not meet the definition of a major environmental rule as 

defined in that statute, and in addition, if it did meet the definition, would not be subject 

to the requirement to prepare a regulatory impact analysis. 

A major environmental rule means a rule, the specific intent of which is to protect the 
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environment or reduce risks to human health from environmental exposure, and that 

may adversely affect in a material way the economy, a sector of the economy, 

productivity, competition, jobs, the environment, or the public health and safety of the 

state or a sector of the state. The specific intent of the adopted revisions is to include 

definitions for, and make other changes to the PAL rules to meet federal requirements. 

Additionally, even if the rules met the definition of a major environmental rule, the 

rulemaking does not meet any of the four applicability criteria for requiring a regulatory 

impact analysis for a major environmental rule, which are listed in Texas Government 

Code, §2001.0225(a). Texas Government Code, §2001.0225, applies only to a major 

environmental rule, the result of which is to: 1) exceed a standard set by federal law, 

unless the rule is specifically required by state law; 2) exceed an express requirement of 

state law, unless the rule is specifically required by federal law; 3) exceed a requirement 

of a delegation agreement or contract between the state and an agency or representative 

of the federal government to implement a state and federal program; or 4) adopt a rule 

solely under the general powers of the agency instead of under a specific state law. 

The adopted rules implement requirements of the FCAA. Under 42 United States Code 

(USC), §7410, each state is required to adopt and implement a SIP containing adequate 

provisions to implement, attain, maintain, and enforce the National Ambient Air Quality 

Standards (NAAQS) within the state. While 42 USC, §7410 generally does not require 
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specific programs, methods, or emission reductions in order to meet the standard, state 

SIPs must include specific requirements as specified by 42 USC, §7410. The provisions 

of the FCAA recognize that states are in the best position to determine what programs 

and controls are necessary or appropriate in order to meet the NAAQS. This flexibility 

allows states, affected industry, and the public, to collaborate on the best methods for 

attaining the NAAQS for the specific regions in the state. Even though the FCAA allows 

states to develop their own programs, this flexibility does not relieve a state from 

developing a program that meets the requirements of 42 USC, §7410, and assure that 

their SIPs provide for implementation, attainment, maintenance, and enforcement of 

the NAAQS within the state. One of the requirements of 42 USC, §7410 is for states to 

include programs for the regulation of the modification and construction of any 

stationary source within the area covered by the plan as necessary to assure that the 

NAAQS are achieved, including a permit program as required in FCAA, Parts C and D, 

or NSR. Additionally, once states have developed SIPs, and those plans are approved by 

the EPA, the FCAA prescribes, in 42 USC, §7502(e) that the EPA, in modifying a 

NAAQS, shall promulgate rules that apply to all areas that have not attained the 

previous NAAQS that provide for controls that are no less stringent than the controls 

that previously applied to the area. This rulemaking addresses those sections submitted 

as revisions to the NSR SIP and were subsequently proposed for disapproval by the EPA. 

Specifically, those concern definitions for and other changes to the PAL rules to meet 

federal requirements. 
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The requirement to provide a fiscal analysis of regulations in the Texas Government 

Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent 

of SB 633 was to require agencies to conduct a regulatory impact analysis of 

extraordinary rules. The statutory language identifies these as major environmental 

rules that will have a material adverse impact and will exceed a requirement of state law, 

federal law, or a delegated federal program, or are adopted solely under the general 

powers of the agency. With the understanding that this requirement would seldom 

apply, the commission provided a cost estimate for SB 633 that concluded, "based on an 

assessment of rules adopted by the agency in the past, it is not anticipated that the bill 

will have significant fiscal implications for the agency due to its limited application." 

The commission also noted that the number of rules that would require assessment 

under the provisions of the bill was not large. The commission bases this conclusion, in 

part, on the criteria set forth in the bill that exempted rules from the full analysis unless 

the rule was a major environmental rule that exceeds a federal law. 

Because of the ongoing need to meet federal requirements, the commission routinely 

proposes and adopts rules incorporating or satisfying specific federal requirements. The 

commission presumes the legislature to understand this federal scheme. If each rule 

proposed by the commission to meet a federal requirement was considered to be a 

major environmental rule that exceeds federal law, then each of those rules would 
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require the full RIA contemplated by SB 633. This conclusion is inconsistent with the 

conclusions reached by the commission in its cost estimate and by the Legislative 

Budget Board in its fiscal notes. Since the commission presumes the legislature to 

understand the fiscal impacts of the bills it passes, and that presumption is based on 

information provided by state agencies and the Legislative Budget Board, the 

commission believes that the intent of SB 633 was only to require the full RIA for rules 

that are extraordinary in nature. While the adopted rules may have a broad impact, that 

impact is no greater than is necessary or appropriate to meet the requirements of the 

FCAA, and in fact creates no additional impacts since the adopted rules do not exceed 

the requirement to attain and maintain the NAAQS. For these reasons, the adopted 

rules fall under the exception in Texas Government Code, §2001.0225(a), because they 

are required by, and do not exceed, federal law. 

The commission has consistently applied this construction to its rules since this statute 

was enacted in 1997. Since that time, the legislature has revised the Texas Government 

Code, but left this provision substantially unamended. It is presumed that "when an 

agency interpretation is in effect at the time the legislature amends the laws without 

making substantial change in the statute, the legislature is deemed to have accepted the 

agency's interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 

(Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 

960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. 
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App. Austin 1990, no writ). Cf Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 

(Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. 

Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. 

Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement 

Div., 563 S.W.2d 916 (Tex. 1978)). 

The commission's interpretation of the RIA requirements is also supported by a change 

made to the Administrative Procedure Act (APA) by the legislature in 1999. In an 

attempt to limit the number of rule challenges based upon APA requirements, the 

legislature clarified that state agencies are required to meet these sections of the AP A 

against the standard of "substantial compliance" (Texas Government Code, §2001.035). 

The legislature specifically identified Texas Government Code, §2001.0225 as falling 

under this standard. As discussed in this analysis and elsewhere in this preamble, the 

commission has substantially complied with the requirements of Texas Government 

Code, §2001.0225. 

The adopted rules implement requirements of the FCAA, specifically to adopt and 

implement SIPs to attain and maintain the NAAQS, including a requirement to adopt 

and implement permit programs. The specific intent of the rulemaking is to address 

those sections submitted as revisions to the NSR SIP and subsequently were proposed 

for disapproval by the EPA. Specifically, those concern definitions for and other 
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changes to the PAL rules to meet federal requirements. The adopted rules were not 

developed solely under the general powers of the agency, but are authorized by specific 

sections ofTHSC, Chapter 382 (also known as the TCAA), and the TWC, which are cited 

in the Statutory Authority section of this preamble. Therefore, this rulemaking action is 

not subject to the regulatory analysis provisions of Texas Government Code, 

§2001.0225(b). 

TakingslrnpactAssessrnent 

Under Texas Government Code, §2007.002(5), taking means a governmental action 

that affects private real property, in whole or in part or temporarily or permanently, in a 

manner that requires the governmental entity to compensate the private real property 

owner as provided by the Fifth and Fourteenth Amendments to the United States 

Constitution or Texas Constitution §17 or §19, Article I; or a governmental action that 

affects an owner's private real property that is the subject of the governmental action, in 

whole or in part or temporarily or permanently, in a manner that restricts or limits the 

owner's right to the property that would otherwise exist in the absence of the 

governmental action; and is the producing cause of a reduction of at least 25% in the 

market value of the affected private real property, determined by comparing the market 

value of the property as if the governmental action is not in effect and the market value 

of the property determined as if the governmental action is in effect. 
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The commission completed a takings impact analysis for this rulemaking under the 

Texas Government Code, §2007.043. The primary purpose of this rulemaking, as 

discussed elsewhere in this preamble, is to address those sections submitted as revisions 

to the NSR SIP and subsequently were proposed for disapproval by the EPA. 

Specifically, the changes concern definitions for and other changes to the PAL rules to 

meet federal requirements. 

The adopted rules will not create any additional burden on private real property. The 

adopted rules will not affect private real property in a manner that would require 

compensation to private real property owners under the United States Constitution or 

the Texas Constitution. This adoption also will not affect private real property in a 

manner that restricts or limits an owner's right to the property that would otherwise 

exist in the absence of the governmental action. Therefore, the rulemaking will not 

cause a taking under Texas Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

The commission determined that this rulemaking action relates to an action or actions 

subject to the Texas Coastal Management Program (CMP) in accordance with the 

Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning 

Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) 
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and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the CMP, 

commission rules governing air pollutant emissions must be consistent with the 

applicable goals and policies of the CMP. The commission reviewed this action for 

consistency with the CMP goals and policies in accordance with the rules of the Coastal 

Coordination Council, and determined that the action is consistent with the applicable 

CMP goals and policies. 

The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and 

enhance the diversity, quality, quantity, functions, and values of coastal natural resource 

areas (31 TAC §501.12(1)). The CMP policy applicable to this rulemaking action is the 

policy that commission rules comply with federal regulations in 40 CFR to protect and 

enhance air quality in the coastal areas (31 TAC §501.14(q)). Therefore, in accordance 

with 31 TAC §505.22(e), the commission affirms that this rulemaking action is 

consistent with CMP goals and policies. 

Effect on Sites Subject to the Federal Operating Permits Program 

Chapter 116 is an applicable requirement of 30 TAC Chapter 122, Federal Operating 

Permits Program. Owners or operators subject to the federal operating permit program 

must, consistent with the revision process in Chapter 122, upon the effective date of the 

adopted rulemaking, revise their operating permit to include the new Chapter 116 

requirements. Additionally, sources subject to the rules may become subject to the 
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federal operating permit program. 

Public Comment 

The commission held a public hearing on the proposal in Austin on March 29, 2012. 

The following persons submitted comments during the public comment period which 

closed on April 9, 2012: Baker Botts, L.L.P. on behalf of the Texas Industry Project 

(TIP). 

Response to Comments 

TIP requests that the commission add language to §116.186(b)(g) that unambiguously 

forecloses the possibility that the TCEQ rule be interpreted as the malfunction of a 

monitoring device could lead to the invalidation of a PAL permit. TIP requested 

additional rule text stating that monitor downtime includes periods when qualityassured monitoring data is not available for any reason, including equipment 

malfunction, repair, periodic maintenance, and quality assurance activities. TIP stated 

that the requested language is consistent with the federal PAL rules and should not 

prevent prompt EPA approval. TIP further stated only the rule text is enforceable, and 

there is no assurance that future enforcement or interpretation will defer to the 

commission's position, as expressed in the preamble, that "failure to use" a monitoring 

system refers to installation and does not include malfunctions. 
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The commission has not changed the rule in response to this comment. 

EPA contacted the commission in 2011 regarding its review of the submitted 

PAL rules and raised the issue of ensuring that the commission's rules 

adequately adopted the EPA's requirement that a PAL permit is invalid if 

the required monitoring system is not required by the permit nor installed 

by the permittee. As thoroughly discussed elsewhere in this preamble, the 

phrase "failure to use" in EPA's PAL rule means a failure to install or failure 

to operate the prescribed monitoring device or system to operate under a 

PAL permit, rather than an inadvertent malfunction or maintenance 

downtime of the monitoring device or system. The language in 

§116.186(b)(9) is intentionally identical to that used by EPA in its PAL rules 

and was chosen to ensure the SIP approvability of this adoption. The 

commission has no formal indication from EPA that it would find any other 

language approvable other than that proposed, and the commission is 

adopting that language. Further, the suggested language is broader than 

that in EPA's preamble, which TIP cites in its comments. 

In the context of an enforcement matter or litigation regarding compliance 

with §116.186(b)(9), should there be a question of whether the commission 

is enforcing the rule in harmony with this adoption preamble, the parties 

can consult the preamble to ensure that enforcement or litigation decisions 
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appropriately take into consideration the commission's position on this 

rule language as expressed in the preamble. 

TIP also requested that the commission specify monitoring requirements that are 

subject to §116.186(b)(9) when issuing, changing, or reviewing individual permits that 

include PALs. The permit invalidation language in the federal PAL rule should be 

construed to apply to only to the minimum monitoring requirements of the PAL rules 

and not to supplemental non-PAL pollutant monitoring requirements or to systems 

exceeding minimum PAL requirements. 

The commission's permits will specify monitoring requirements that meet 

applicable rules, including §tt6.t86, for PAL permits, as well as any other 

monitoring requirements necessary for compliance with the FCAA, TCAA, 

the Texas SIP, and the rules of the commission. The commenter is correct 

that the criteria for permit invalidation is limited to those monitoring 

systems installed to meet the minimum PAL requirements. No change was 

made to the rules in response to this comment. 
Recommendation
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SUBCHAPTERA: DEFINITIONS 

§116.12 

STATUTORY AUfHORl1Y 

The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General 

Powers, which provides the commission with the general powers to carry out its duties 

under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to 

adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, 

concerning General Policy, which authorizes the commission by rule to establish and 

approve all general policy of the commission; and under Texas Health and Safety Code 

(THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the Texas Clean Air Act. The amendment is 

also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes 

the commission's purpose to safeguard the state's air resources, consistent with the 

protection of public health, general welfare, and physical property; THSC, §382.011, 

concerning General Powers and Duties, which authorizes the commission to control the 

quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which 

authorizes the commission to prepare and develop a general, comprehensive plan for 

the proper control of the state's air; THSC, §382.016, concerning Monitoring 

Requirements; Examination of Records, which authorizes the commission to prescribe 

reasonable requirements for measuring and monitoring the emissions of air 
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contaminants from a source or from an activity causing or resulting in the emission of 

air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, 

which authorizes the commission to prescribe sampling methods and procedures to be 

used in determining violations of and compliance with the commission's rules; THSC, 

§382.040, concerning Documents; Public Property, which provides that all information, 

documents, and data collected by the commission in performing its duties are state 

property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, 

which authorizes the commission to issue permits for construction of new facilities or 

modifications to existing facilities that may emit air contaminants; THSC, §382.0511, 

concerning Permit Consolidation and Amendment, which authorizes the commission to 

consolidate various authorizations; THSC, §382.0512, concerning Modification of 

Existing Facility, which prescribes how the commission will evaluate modifications of 

existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes 

the commission to establish and enforce permit conditions; THSC, §382.0514, 

concerning Sampling, Monitoring, and Certification, which authorizes the commission 

to require sampling and monitoring of a permitted federal source or facility; THSC, 

§382.0515, concerning Application for Permit, which specifies permit application 

requirements; and THSC, §382.0518, concerning Preconstruction Permit, which 

authorizes the commission to issue preconstruction permits. The amendment is also 

adopted under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et 

seq., which requires states to submit state implementation plan revisions that specify 
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the manner in which the National Ambient Air Quality Standard will be achieved and 

maintained within each air quality control region of the state. 

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, 

382.017, 382.021, 382.040, 382.051, 382.0511- 382.0515, and 382.0518, and FCAA, 42 

USC, §§7401 et seq. 

§116.12. Nonattainment and Prevention of Significant Deterioration Review 

Definitions. 

Unless specifically defined in the Texas Clean Air Act (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. The terms in this section are 

applicable to permit review for major source construction and major source 

modification in nonattainment areas. In addition to the terms that are defined by the 

TCAA, and in §101.1 of this title (relating to Definitions), the following words and terms, 

when used in Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to 

Nonattainment Review Permits and Prevention of Significant Deterioration Review); 

and Chapter 116, Subchapter C, Division 1 of this title (relating to Plant-Wide 

Applicability Limits), have the following meanings, unless the context clearly indicates 

otherwise. 
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(1) Actual emissions--Actual emissions as of a particular date are equal to 

the average rate, in tons per year, at which the unit actually emitted the pollutant during 

the 24-month period that precedes the particular date and that is representative of 

normal source operation, except that this definition shall not apply for calculating 

whether a significant emissions increase has occurred, or for establishing a plant-wide 

applicability limit. Instead, paragraph (3) of this section relating to baseline actual 

emissions shall apply for this purpose. The executive director shall allow the use of a 

different time period upon a determination that it is more representative of normal 

source operation. Actual emissions shall be calculated using the unit's actual operating 

hours, production rates, and types of materials processed, stored, or combusted during 

the selected time period. The executive director may presume that the source-specific 

allowable emissions for the unit are equivalent to the actual emissions, e.g., when the 

allowable limit is reflective of actual emissions. For any emissions unit that has not 

begun normal operations on the particular date, actual emissions shall equal the 

potential to emit of the unit on that date. 

(2) Allowable emissions--The emissions rate of a stationary source, calculated 

using the maximum rated capacity of the source (unless the source is subject to federally 

enforceable limits that restrict the operating rate, or hours of operation, or both), and 

the most stringent of the following: 
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(A) the applicable standards specified in 40 Code of Federal 

Regulations Part 6o or 61; 

(B) the applicable state implementation plan emissions limitation 

including those with a future compliance date; or 

(C) the emissions rate specified as a federally enforceable permit 

condition including those with a future compliance date. 

(3) Baseline actual emissions--The rate of emissions, in tons per year, of a 

federally regulated new source review pollutant. 

(A) For any existing electric utility steam generating unit, baseline 

actual emissions means the average rate, in tons per year, at which the unit actually 

emitted the pollutant during any consecutive 24-month period selected by the owner or 

operator within the five-year period immediately preceding when the owner or operator 

begins actual construction of the project. The executive director shall allow the use of a 

different time period upon a determination that it is more representative of normal 

source operation. 
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(B) For an existing facility (other than an electric utility steam 

generating unit), baseline actual emissions means the average rate, in tons per year, at 

which the facility actually emitted the pollutant during any consecutive 24-month period 

selected by the owner or operator within the ten-year period immediately preceding 

either the date the owner or operator begins actual construction of the project, or the 

date a complete permit application is received for a permit. The rate shall be adjusted 

downward to exclude any emissions that would have exceeded an emission limitation 

with which the major stationary source must currently comply with the exception of 

those required under 40 Code of Federal Regulations Part 63, had such major stationary 

source been required to comply with such limitations during the consecutive 24-month 

period. 

(C) For a new facility, the baseline actual emissions for purposes of 

determining the emissions increase that will result from the initial construction and 

operation of such unit shall equal zero; and for all other purposes during the first two 

years following initial operation, shall equal the unit's potential to emit. 

(D) The actual average rate shall be adjusted downward to exclude 

any non-compliant emissions that occurred during the consecutive 24-month period. 

For each regulated new source review pollutant, when a project involves multiple 

facilities, only one consecutive 24-month period must be used to determine the baseline 
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actual emissions for the facilities being changed. A different consecutive 24-month 

period can be used for each regulated new source review pollutant. The average rate 

shall not be based on any consecutive 24-month period for which there is inadequate 

information for determining annual emissions, in tons per year, and for adjusting this 

amount. Baseline emissions cannot occur prior to November 15, 1990. 

(E) The actual average emissions rate shall include fugitive 

emissions to the extent quantifiable. Until March 1, 2016, emissions previously 

demonstrated as resulting from planned maintenance, startup, or shutdown activities; 

historically unauthorized; and subject to reporting under Chapter 101 of this title 

(relating to General Air Quality Rules) shall be included to the extent that they have 

been authorized, or are being authorized. 

(4) Basic design parameters--For a process unit at a steam electric 

generating facility, the owner or operator may select as its basic design parameters 

either maximum hourly heat input and maximum hourly fuel consumption rate or 

maximum hourly electric output rate and maximum steam flow rate. When establishing 

fuel consumption specifications in terms of weight or volume, the minimum fuel quality 

based on British thermal units content shall be used for determining the basic design 

parameters for a coal-fired electric utility steam generating unit. The basic design 

parameters for any process unit that is not at a steam electric generating facility are 
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maximum rate of fuel or heat input, maximum rate of material input, or maximum rate 

of product output. Combustion process units will typically use maximum rate of fuel 

input. For sources having multiple end products and raw materials, the owner or 

operator shall consider the primary product or primary raw material when selecting a 

basic design parameter. The owner or operator may propose an alternative basic design 

parameter for the source's process units to the executive director if the owner or 

operator believes the basic design parameter as defined in this paragraph is not 

appropriate for a specific industry or type of process unit. If the executive director 

approves of the use of an alternative basic design parameter, that basic design 

parameter shall be identified and compliance required in a condition in a permit that is 

legally enforceable. 

(A) The owner or operator shall use credible information, such as 

results of historic maximum capability tests, design information from the manufacturer, 

or engineering calculations, in establishing the magnitude of the basic design 

parameter. 

(B) If design information is not available for a process unit, the 

owner or operator shall determine the process unit's basic design parameter(s) using the 

maximum value achieved by the process unit in the five-year period immediately 

preceding the planned activity. 
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(C) Efficiency of a process unit is not a basic design parameter. 

(5) Begin actual construction--In general, initiation of physical on-site 

construction activities on an emissions unit that are of a permanent nature. Such 

activities include, but are not limited to, installation of building supports and 

foundations, laying of underground pipework, and construction of permanent storage 

structures. With respect to a change in method of operation, this term refers to those 

on-site activities other than preparatory activities that mark the initiation of the change. 

(6) Building, structure, facility, or installation--All of the pollutantemitting activities that belong to the same industrial grouping, are located in one or 

more contiguous or adjacent properties, and are under the control of the same person 

(or persons under common control). Pollutant-emitting activities are considered to be 

part of the same industrial grouping if they belong to the same "major group" (i.e., that 

have the same two-digit code) as described in the Standard Industrial Classification 

Manual, 1972, as amended by the 1977 supplement. 

(7) Clean coal technology--Any technology, including technologies applied 

at the precombustion, combustion, or post-combustion stage, at a new or existing 

facility that will achieve significant reductions in air emissions of sulfur dioxide or 
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oxides of nitrogen associated with the utilization of coal in the generation of electricity, 

or process steam that was not in widespread use as of November 15, 1990. 

(8) Clean coal technology demonstration project--A project using funds 

appropriated under the heading "Department of Energy-Clean Coal Technology," up to a 

total amount of $2.5 billion for commercial demonstration of clean coal technology, or 

similar projects funded through appropriations for the United States Environmental 

Protection Agency. The federal contribution for a qualifying project shall be at least 20% 

of the total cost of the demonstration project. 

(g) Commence--As applied to construction of a major stationary source or 

major modification, means that the owner or operator has all necessary preconstruction 

approvals or permits and either has: 

(A) begun, or caused to begin, a continuous program of actual onsite construction of the source, to be completed within a reasonable time; or 

(B) entered into binding agreements or contractual obligations, 

which cannot be canceled or modified without substantial loss to the owner or operator, 

to undertake a program of actual construction of the source to be completed within a 

reasonable time. 
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(10) Construction--Any physical change or change in the method of 

operation (including fabrication, erection, installation, demolition, or modification of an 

emissions unit) that would result in a change in actual emissions. 

(11) Contemporaneous period--For major sources the period between: 

(A) the date that the increase from the particular change occurs; 

and 

(B) 6o months prior to the date that construction on the particular 

change commences. 

(12) De minimis threshold test (netting)--A method of determining if a 

proposed emission increase will trigger nonattainment or prevention of significant 

deterioration review. The summation of the proposed project emission increase in tons 

per year with all other creditable source emission increases and decreases during the 

contemporaneous period is compared to the significant level for that pollutant. If the 

significant level is exceeded, then prevention of significant deterioration and/ or 

nonattainment review is required. 
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(13) Electric utility steam generating unit--Any steam electric generating 

unit that is constructed for the purpose of supplying more than one-third of its potential 

electric output capacity and more than 25 megawatts electrical output to any utility 

power distribution system for sale. Any steam supplied to a steam distribution system 

for the purpose of providing steam to a steam-electric generator that would produce 

electrical energy for sale is included in determining the electrical energy output capacity 

of the affected facility. 

(14) Federally regulated new source review pollutant--As defined in 

subparagraphs (A) - (D) of this paragraph: 

(A) any pollutant for which a national ambient air quality standard 

has been promulgated and any constituents or precursors for such pollutants identified 

by the United States Environmental Protection Agency; 

(B) any pollutant that is subject to any standard promulgated under 

Federal Clean Air Act (FCAA), §111; 

(C) any Class I or II substance subject to a standard promulgated 

under or established by FCAA, Title VI; or 
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(D) any pollutant that otherwise is subject to regulation under the 

FCAA; except that any or all hazardous air pollutants either listed in FCAA, §112 or 

added to the list under FCAA, §112(b)(2), which have not been delisted under FCAA, 

§112(b)(3), are not regulated new source review pollutants unless the listed hazardous 

air pollutant is also regulated as a constituent or precursor of a general pollutant listed 

under FCAA, §1o8. 

(15) Lowest achievable emission rate--For any emitting facility, that rate of 

emissions of a contaminant that does not exceed the amount allowable under applicable 

new source performance standards promulgated by the United States Environmental 

Protection Agency under 42 United States Code, §7411, and that reflects the following: 

(A) the most stringent emission limitation that is contained in the 

rules and regulations of any approved state implementation plan for a specific class or 

category of facility, unless the owner or operator of the proposed facility demonstrates 

that such limitations are not achievable; or 

(B) the most stringent emission limitation that is achieved in 

practice by a specific class or category of facilities, whichever is more stringent. 
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(16) Major facility--Any facility that emits or has the potential to emit 100 

tons per year or more of the plant-wide applicability limit (PAL) pollutant in an 

attainment area; or any facility that emits or has the potential to emit the PAL pollutant 

in an amount that is equal to or greater than the major source threshold for the PAL 

pollutant in Table I of this section for nonattainment areas. 

(17) Major stationary source--Any stationary source that emits, or has the 

potential to emit, a threshold quantity of emissions or more of any air contaminant 

(including volatile organic compounds (VOCs)) for which a national ambient air quality 

standard has been issued. The major source thresholds are identified in Table I of this 

section for nonattainment pollutants and the major source thresholds for prevention of 

significant deterioration pollutants are identified in 40 Code of Federal Regulations 

(CFR) §51.166(b)(1). A source that emits, or has the potential to emit a federally 

regulated new source review pollutant at levels greater than those identified in 40 CFR 

§51.166(b)(1) is considered major for all prevention of significant deterioration 

pollutants. A major stationary source that is major for VOCs or nitrogen oxides is 

considered to be major for ozone. The fugitive emissions of a stationary source shall not 

be included in determining for any of the purposes of this definition whether it is a 

major stationary source, unless the source belongs to one of the categories of stationary 

sources listed in 40 CFR §51.165(a)(1)(iv)(C). 
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(18) Major modification--As follows. 

(A) Any physical change in, or change in the method of operation of 

a major stationary source that causes a significant project emissions increase and a 

significant net emissions increase for any federally regulated new source review 

pollutant. At a stationary source that is not major prior to the increase, the increase by 

itself must equal or exceed that specified for a major source. At an existing major 

stationary source, the increase must equal or exceed that specified for a major 

modification to be significant. The major source and significant thresholds are provided 

in Table I of this section for nonattainment pollutants. The major source and significant 

thresholds for prevention of significant deterioration pollutants are identified in 40 

Code of Federal Regulations §51.166(b)(1) and (23), respectively. 

Figure: 30 TAC §116.12(18)(A) (No change to the figure as it currently exists in TAC.) 

(B) A physical change or change in the method of operation shall 

not include: 

(i) routine maintenance, repair, and replacement; 
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(ii) use of an alternative fuel or raw material by reason of an 

order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and 

(b) (or any superseding legislation) or by reason of a natural gas curtailment plan under 

the Federal Power Act; 

(iii) use of an alternative fuel by reason of an order or rule of 

42 United States Code, §7425; 

(iv) use of an alternative fuel at a steam generating unit to 

the extent that the fuel is generated from municipal solid waste; 

(v) use of an alternative fuel or raw material by a stationary 

source that the source was capable of accommodating before December 21, 1976 (unless 

such change would be prohibited under any federally enforceable permit condition 

established after December 21, 1976) or the source is approved to use under any permit 

issued under regulations approved under this chapter; 

(vi) an increase in the hours of operation or in the 

production rate (unless the change is prohibited under any federally enforceable permit 

condition that was established after December 21, 1976); 
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(vii) any change in ownership at a stationary source; 

(viii) any change in emissions of a pollutant at a site that 

occurs under an existing plant-wide applicability limit; 

(ix) the installation, operation, cessation, or removal of a 

temporary clean coal technology demonstration project, provided that the project 

complies with the state implementation plan and other requirements necessary to attain 

and maintain the national ambient air quality standard during the project and after it is 

terminated; 

(x) for prevention of significant deterioration review only, 

the installation or operation of a permanent clean coal technology demonstration 

project that constitutes re-powering, provided that the project does not result in an 

increase in the potential to emit of any regulated pollutant emitted by the unit. This 

exemption shall apply on a pollutant-by-pollutant basis; or 

(xi) for prevention of significant deterioration review only, 

the reactivation of a clean coal-fired electric utility steam generating unit. 
Texas Commission on Environmental Quality Page 39 

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(19) Necessary preconstruction approvals or permits--Those permits or 

approvals required under federal air quality control laws and regulations and those air 

quality control laws and regulations that are part of the applicable state implementation 

plan. 

(20) Net emissions increase--The amount by which the sum of the 

following exceeds zero: the project emissions increase plus any sourcewide creditable 

contemporaneous emission increases, minus any sourcewide creditable 

contemporaneous emission decreases. Baseline actual emissions shall be used to 

determine emissions increases and decreases. 

(A) An increase or decrease in emissions is creditable only if the 

following conditions are met: 

(i) it occurs during the contemporaneous period; 

(ii) the executive director has not relied on it in issuing a 

federal new source review permit for the source and that permit is in effect when the 

increase in emissions from the particular change occurs; and 
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(iii) in the case of prevention of significant deterioration 

review only, an increase or decrease in emissions of sulfur dioxide, particulate matter, or 

nitrogen oxides that occurs before the applicable minor source baseline date is 

creditable only if it is required to be considered in calculating the amount of maximum 

allowable increases remaining available. 

(B) An increase in emissions is creditable if it is the result of a 

physical change in, or change in the method of operation of a stationary source only to 

the extent that the new level of emissions exceeds the baseline actual emission rate. 

Emission increases at facilities under a plant-wide applicability limit are not creditable. 

(C) A decrease in emissions is creditable only to the extent that all 

of the following conditions are met: 

(i) the baseline actual emission rate exceeds the new level of 

emissions; 

(ii) it is federally enforceable at and after the time that actual 

construction on the particular change begins; 
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(iii) the executive director has not relied on it in issuing a 

prevention of significant deterioration or a nonattainment permit; 

(iv) the decrease has approximately the same qualitative 

significance for public health and welfare as that attributed to the increase from the 

particular change; and 

(v) in the case of nonattainment applicability analysis only, 

the state has not relied on the decrease to demonstrate attainment or reasonable further 

progress. 

(D) An increase that results from a physical change at a source 

occurs when the emissions unit on which construction occurred becomes operational 

and begins to emit a particular pollutant. Any replacement unit that requires shakedown 

becomes operational only after a reasonable shakedown period, not to exceed 180 days. 

(21) Offset ratio--For the purpose of satisfying the emissions offset 

reduction requirements of 42 United States Code, §7503(a)(1)(A), the emissions offset 

ratio is the ratio of total actual reductions of emissions to total emissions increases of 

such pollutants. The minimum offset ratios are included in Table I of this section under 

the definition of major modification. In order for a reduction to qualify as an offset, it 
Texas Commission on Environmental Quality Page 42 

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must be certified as an emission credit under Chapter 101, Subchapter H, Division 1 or 4 

of this title (relating to Emission Credit Banking and Trading; or Discrete Emission 

Credit Banking and Trading), except as provided for in §116.170(b) of this title (relating 

to Applicability of Emission Reductions as Offsets). The reduction must not have been 

relied on in the issuance of a previous nonattainment or prevention of significant 

deterioration permit. 

(22) Plant-wide applicability limit--An emission limitation expressed, in 

tons per year, for a pollutant at a major stationary source, that is enforceable and 

established in a plant-wide applicability limit permit under §116.186 of this title 

(relating to General and Special Conditions). 

(23) Plant-wide applicability limit effective date--The date of issuance of 

the plant-wide applicability limit permit. [The plant-wide applicability limit effective 

date for a plant-wide applicability limit established in an existing flexible permit is the 

date that the flexible permit was issued.] 

(24) Plant-wide applicability limit major modification--Any physical 

change in, or change in the method of operation of the plant-wide applicability limit 

source that causes it to emit the plant-wide applicability limit pollutant at a level equal 

to or greater than the plant-wide applicability limit. 
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(25) Plant-wide applicability limit permit--The new source review permit 

that establishes the plant-wide applicability limit. 

(26) Plant-wide applicability limit pollutant--The pollutant for which a 

plant-wide applicability limit is established at a major stationary source. 

(27) Potential to emit--The maximum capacity of a stationary source to 

emit a pollutant under its physical and operational design. Any physical or enforceable 

operational limitation on the capacity of the stationary source to emit a pollutant, 

including air pollution control equipment and restrictions on hours of operation or on 

the type or amount of material combusted, stored, or processed, may be treated as part 

of its design only if the limitation or the effect it would have on emissions is federally 

enforceable. Secondary emissions, as defined in 40 Code of Federal Regulations 

§51.165(a)(1)(viii), do not count in determining the potential to emit for a stationary 

source. 

(28) Project net--The sum of the following: the project emissions increase, 

minus any sourcewide creditable emission decreases proposed at the source between the 

date of application for the modification and the date the resultant modification begins 

emitting. Baseline actual emissions shall be used to determine emissions increases and 
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decreases. Increases and decreases must meet the creditability criteria listed under the 

definition of net emissions increase in this section. 

(29) Projected actual emissions--The maximum annual rate, in tons per 

year, at which an existing facility is projected to emit a federally regulated new source 

review pollutant in any rolling 12-month period during the five years following the date 

the facility resumes regular operation after the project, or in any one of the ten years 

following that date, if the project involves increasing the facility's design capacity or its 

potential to emit that federally regulated new source review pollutant. In determining 

the projected actual emissions, the owner or operator of the major stationary source 

shall include unauthorized emissions from planned maintenance, startup, or shutdown 

activities, which were historically unauthorized and subject to reporting under Chapter 

101 of this title, to the extent they have been authorized, or are being authorized; and 

fugitive emissions to the extent quantifiable; and shall consider all relevant information, 

including, but not limited to, historical operational data, the company's own 

representations, the company's expected business activity and the company's highest 

projections of business activity, the company's filings with the state or federal regulatory 

authorities, and compliance plans under the approved state implementation plan. 

(30) Project emissions increase--The sum of emissions increases for each 

modified or affected facility determined using the following methods: 
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(A) for existing facilities, the difference between the projected 

actual emissions and the baseline actual emissions. In calculating any increase in 

emissions that results from the project, that portion of the facility's emissions following 

the project that the facility could have accommodated during the consecutive 24-month 

period used to establish the baseline actual emissions and that are also unrelated to the 

particular project, including any increased utilization due to product demand growth 

may be excluded from the project emission increase. The potential to emit from the 

facility following completion of the project may be used in lieu of the projected actual 

emission rate; and 

(B) for new facilities, the difference between the potential to emit 

from the facility following completion of the project and the baseline actual emissions. 

(31) Replacement facility--A facility that satisfies the following criteria: 

(A) the facility is a reconstructed unit within the meaning of 40 

Code of Federal Regulations §60.15(b)(1), or the facility replaces an existing facility; 

(B) the facility is identical to or functionally equivalent to the 

replaced facility; 
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(C) the replacement does not alter the basic design parameters of 

the process unit; 

(D) the replaced facility is permanently removed from the major 

stationary source, otherwise permanently disabled, or permanently barred from 

operation by a permit that is enforceable. If the replaced facility is brought back into 

operation, it shall constitute a new facility. No creditable emission reductions shall be 

generated from shutting down the existing facility that is replaced. A replacement 

facility is considered an existing facility for the purpose of determining federal new 

source review applicability. 

(32) Secondary emissions--Emissions that would occur as a result of the 

construction or operation of a major stationary source or major modification, but do not 

come from the source or modification itself. Secondary emissions must be specific, welldefined, quantifiable, and impact the same general area as the stationary source or 

modification that causes the secondary emissions. Secondary emissions include 

emissions from any off-site support facility that would not be constructed or increase its 

emissions, except as a result of the construction or operation of the major stationary 

source or major modification. Secondary emissions do not include any emissions that 

come directly from a mobile source such as emissions from the tail pipe of a motor 

vehicle, from a train, or from a vessel. 
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(33) Significant facility--A facility that emits or has the potential to emit a 

plant-wide applicability limit (PAL) pollutant in an amount that is equal to or greater 

than the significant level for that PAL pollutant. 

(34) Small facility--A facility that emits or has the potential to emit the 

plant-wide applicability limit (PAL) pollutant in an amount less than the significant 

level for that PAL pollutant. 

(35) Stationary source--Any building, structure, facility, or installation that 

emits or may emit any air pollutant subject to regulation under 42 United States Code, 

§§7401 et seq. 

(36) Temporary clean coal technology demonstration project--A clean coal 

technology demonstration project that is operated for a period of five years or less, and 

that complies with the state implementation plan and other requirements necessary to 

attain and maintain the national ambient air quality standards during the project and 

after it is terminated. 
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SUBCHAPTER B: NEW SOURCE REVIEW PERMITS 

DIVISION 5: NONATTAINMENT REVIEW PERMITS 

§116.150, §116.151 

STATUTORY AUTHORITY 

The amendments are adopted under Texas Water Code (TWC), §5.102, concerning 

General Powers, which provides the commission with the general powers to carry out its 

duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the 

commission to adopt rules necessary to carry out its powers and duties under the TWC; 

TWC, §5.105, concerning General Policy, which authorizes the commission by rule to 

establish and approve all general policy of the commission; and under Texas Health and 

Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The 

amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, 

which establishes the commission's purpose to safeguard the state's air resources, 

consistent with the protection of public health, general welfare, and physical property; 

THSC, §382.011, concerning General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; and THSC, §382.012, concerning 

State Air Control Plan, which authorizes the commission to prepare and develop a 

general, comprehensive plan for the proper control of the state's air; THSC, §382.051, 

concerning Permitting Authority of Commission; Rules, which authorizes the 
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commission to issue permits for construction of new facilities or modifications to 

existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit 

Consolidation and Amendment, which authorizes the commission to consolidate various 

authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which 

prescribes how the commission will evaluate modifications of existing facilities; THSC, 

§382.0513, concerning Permit Conditions, which authorizes the commission to establish 

and enforce permit conditions; THSC, §382.0515, concerning Application for Permit, 

which specifies permit application requirements; and THSC, §382.0518, concerning 

Preconstruction Permit, which authorizes the commission to issue preconstruction 

permits. The amendments are also adopted under Federal Clean Air Act (FCAA), 42 

United States Code (USC), §§7401, et seq., which requires states to submit state 

implementation plan revisions that specify the manner in which the national ambient 

air quality standard will be achieved and maintained within each air quality control 

region of the state. 

The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 

382.051, 382.0511, 382.0512, 382.0513, 382.0515, and 382.0518, and FCAA, 42 USC, 

§§7401 et seq. 
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§tt6.150. New Major Source or Major Modification in Ozone Nonattainment 

Areas. 

(a) This section applies to all new source review authorizations for new 

construction or modification of facilities or emissions units that will be located in any 

area designated as nonattainment for ozone under 42 United States Code (USC), §§7407 

et seq. as of the date of issuance of the permit, unless the following apply on the date of 

issuance of the permit: 

(1) the United States Environmental Protection Agency (EPA) has made a 

finding of attainment; 

(2) the EPA has approved the removal of nonattainment New Source 

Review CNSR) requirements from the area; 

(3) the EPA has determined that Prevention of Significant Deterioration 

requirements apply in the area; or 

(4) the EPA determines that nonattainment NSR is no longer required for 

purposes of antibacksliding. 
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(b) The owner or operator of a proposed new major stationary source, as defined 

in §116.12 of this title (relating to Nonattainment and Prevention of Significant 

Deterioration Review Definitions) of volatile organic compound (VOC) emissions or 

nitrogen oxides (NOx) emissions, or the owner or operator of an existing stationary 

source of VOC or NOx emissions that will undergo a major modification, as defined in 

§116.12 of this title with respect to VOC or NOx, shall meet the requirements of 

subsection (d)(l)- (4) of this section, except as provided in subsection (e) of this section. 

Table I, located in the definition of major modification in §116.12 of this title, specifies 

the various classifications of nonattainment along with the associated emission levels 

that designate a major stationary source and significant level for those classifications. 

(c) Except as noted in subsection (e) of this section regarding NOx, the de 

minimis threshold test (netting) is required for all modifications to existing major 

sources ofVOC or NOx, unless at least one of the following conditions are met: 

(1) the proposed emissions increases associated with a project, without 

regard to decreases, is less than five tons per year (tpy) of the individual nonattainment 

pollutant in areas classified under Federal Clean Air Act (FCAA), Title I, Part D, Subpart 

2 (42 USC, §7511) classified as Serious or Severe; 
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(2) the proposed emissions increases associated with a project, without 

regard to decreases, is less than 40 tpy of the individual nonattainment pollutant in 

areas classified under FCAA, Title I, Part D, Subpart 1 (42 USC, §7502) and for those 

under FCAA, Title I, Part D, Subpart 2 (42 USC, §7511) classified as Marginal or 

Moderate; or 

(3) the project emissions increases are less than the significant level stated 

in Table I located in the definition of major modification in §116.12 of this title and when 

coupled with project actual emissions decreases for the same pollutant, summed as the 

project net, are less than or equal to zero tpy. 

(d) In applying the de minimis threshold test, if the net emissions increases are 

greater than the significant levels stated in Table I located in the definition of major 

modification in §116.12 of this title, the following requirements apply. 

(1) The proposed facility or emissions unit shall comply with the lowest 

achievable emission rate (LAER) as defined in §116.12 of this title for the nonattainment 

pollutants for which the facility or emissions unit is a new major source or major 

modification except as provided in paragraph (3)(B) of this subsection and except for 

existing major stationary sources that have a potential to emit (PTE) of less than 100 tpy 

of the applicable nonattainment pollutant. For these sources, best available control 
Texas Commission on Environmental Quality Page 53 

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technology (BACT) can be substituted for lAER. lAER shall otherwise be applied to 

each new facility or emissions unit and to each existing facility or emissions unit at 

which the net emissions increase will occur as a result of a physical change or change in 

method of operation of the unit. 

(2) All major stationary sources owned or operated by the applicant (or by 

any person controlling, controlled by, or under common control with the applicant) in 

the state must be in compliance or on a schedule for compliance with all applicable state 

and federal emission limitations and standards. 

(3) At the time the new or modified facility or emissions unit or facilities or 

emissions units commence operation, the emissions increases from the new or modified 

facility or emissions unit or facilities or emissions units must be offset. The proposed 

facility or emissions unit shall use the offset ratio for the appropriate nonattainment 

classification as defined in §116.12 of this title and shown in Table I located in the 

definition of major modification in §116.12 of this title. Internal offsets that are 

generated at the source and that otherwise meet all creditability criteria can be applied 

as follows. 

(A) Major stationary sources located in a serious or severe ozone 

nonattainment area with a PTE of less than 100 tpy of an applicable nonattainment 
Texas Commission on Environmental Quality Page 54 

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pollutant are not required to undergo nonattainment new source review under this 

section, if the project increases are offset with internal offsets at a ratio of at least 1.3 to 

1. 

(B) Major stationary sources located in a serious or severe ozone 

nonattainment area with a PTE of greater than or equal to 100 tpy of an applicable 

nonattainment pollutant can substitute federal BACT (as identified in §116.16o(c)(1)(A) 

of this title (relating to Prevention of Significant Deterioration Requirements) for LAER, 

if the project increases are offset with internal offsets at a ratio of at least 1.3 to 1. 

Internal offsets used in this manner can also be applied to satisfy the offset requirement. 

(4) In accordance with the FCAA, the permit application must contain an 

analysis of alternative sites, sizes, production processes, and control techniques for the 

proposed source. The analysis must demonstrate that the benefits of the proposed 

location and source configuration significantly outweigh the environmental and social 

costs of that location. 

(e) For sources located in the El Paso ozone nonattainment area as defined in 40 

Code of Federal Regulations, Part 81, the requirements of this section do not apply to 

NOx emissions. 
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§tt6.151. New Major Source or Major Modification in Nonattainment Area 

Other Than Ozone. 

(a) This section applies to applications for new construction or modification of 

facilities or emissions units located in a designated nonattainment area for an air 

contaminant other than ozone. The owner or operator of a proposed new or modified 

facility or emissions unit that will be a new major stationary source for that 

nonattainment air contaminant, or the owner or operator of an existing major stationary 

source that will undergo a major modification with respect to that nonattainment air 

contaminant, shall meet the additional requirements of subsection (c)(1)- (4) of this 

section. Table I located in the definition of major modification in §116.12 of this title 

(relating to Nonattainment and Prevention of Significant Deterioration Review 

Definitions) specifies the various classifications of nonattainment along with the 

associated emission levels that designate a major stationary source. 

(b) The de minimis threshold test (netting) is required for all modifications to 

existing major sources of federally regulated new source review pollutants, unless the 

proposed emissions increases associated with a project, without regard to decreases, are 

less than the major modification threshold for the pollutant identified in Table I located 

in the definition of major modification in §116.12 of this title. 
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(c) In applying the de minimis threshold test, if the net emissions increases are 

greater than the major modification levels stated in Table I located in the definition of 

major modification in §116.12 of this title, the following requirements apply. 

(1) The proposed facility or emissions unit shall comply with the lowest 

achievable emission rate (LAER) as defined in §116.12 of this title for the nonattainment 

pollutants for which the facility or emissions unit is a new major source or major 

modification. LAER shall be applied to each new facility or emissions unit and to each 

existing facility or emissions unit at which the net emissions increase will occur as a 

result of a physical change or change in method of operation of the unit. 

(2) All major stationary sources owned or operated by the applicant (or by 

any person controlling, controlled by, or under common control with the applicant) in 

the state shall be in compliance or on a schedule for compliance with all applicable state 

and federal emission limits and standards. 

(3) At the time the new or modified facility or emissions unit or facilities or 

emissions units commence operation, the emission increases from the new or modified 

facility or emissions unit or facilities or emissions units shall be offset. The proposed 

facility or emissions unit shall use the offset ratio for the appropriate nonattainment 
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classification as defined in §116.12 of this title and shown in Table I located in the 

definition of major modification in §116.12 of this title. 

(4) In accordance with the Federal Clean Air Act, the permit application 

shall contain an analysis of alternative sites, sizes, production processes, and control 

techniques for the proposed source. The analysis shall demonstrate that the benefits of 

the proposed location and source configuration significantly outweigh the 

environmental and social costs of that location. 
Texas Commission on Environmental Quality Page 58 

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SUBCHAPTER C: PLANT-WIDE APPLICABILITY LIMITS 

DIVISION t: PLANT-WIDE APPLICABILITY LIMITS 

§tt6.t8o, §116.186 

STATUTORY AUTHORITY 

The amendments are adopted under Texas Water Code (TWC), §5.102, concerning 

General Powers, which provides the commission with the general powers to carry out its 

duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the 

commission to adopt rules necessary to carry out its powers and duties under the TWC; 

TWC, §5.105, concerning General Policy, which authorizes the commission by rule to 

establish and approve all general policy of the commission; TWC, §7.02, concerning 

Enforcement Authority, which provides the commission the authority to enforce the 

statutes under its jurisdiction; TWC, §7.301, concerning Definition, which defines terms 

used in Chapter 7, Subchapter G; TWC, §7.302, concerning Grounds for Revocation or 

Suspension of Permit, which provides the commission the authority to revoke and 

suspend or revoke and reissue a permit on prescribed grounds after notice and hearing; 

and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which 

authorizes the commission to adopt rules consistent with the policy and purposes of the 

Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, 

concerning Policy and Purpose, which establishes the commission's purpose to 

safeguard the state's air resources, consistent with the protection of public health, 

general welfare, and physical property; THSC, §382.011, concerning General Powers and 
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Duties, which authorizes the commission to control the quality of the state's air; and 

THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to 

prepare and develop a general, comprehensive plan for the proper control of the state's 

air; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, 

which authorizes the commission to prescribe reasonable requirements for measuring 

and monitoring the emissions of air contaminants from a source or from an activity 

causing or resulting in the emission of air contaminants; THSC, §382.021, concerning 

Sampling Methods and Procedures, which authorizes the commission to prescribe 

sampling methods and procedures to be used in determining violations of and 

compliance with the commission's rules; THSC, §382.040, concerning Documents; 

Public Property, which provides that all information, documents, and data collected by 

the commission in performing its duties are state property; THSC, §382.051, concerning 

Permitting Authority of Commission; Rules, which authorizes the commission to issue 

permits for construction of new facilities or modifications to existing facilities that may 

emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and 

Amendment, which authorizes the commission to consolidate various authorizations; 

THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how 

the commission will evaluate modifications of existing facilities; THSC, §382.0513, 

concerning Permit Conditions, which authorizes the commission to establish and 

enforce permit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and 

Certification, which authorizes the commission to require sampling and monitoring of a 
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permitted federal source or facility; THSC, §382.0515, concerning Application for 

Permit, which specifies permit application requirements; and THSC, §382.0518, 

concerning Preconstruction Permit, which authorizes the commission to issue 

preconstruction permits. The amendments are also adopted under Federal Clean Air Act 

(FCAA), 42 United States Code (USC), §§7401, et seq., which requires states to submit 

state implementation plan revisions that specify the manner in which the national 

ambient air quality standard will be achieved and maintained within each air quality 

control region of the state. 

The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.016, 

382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et seq. 

§tt6.t8o. Applicability. 

(a) The following requirements apply to a plant-wide applicability limit (PAL) 

permit. 

(1) Only one PAL may be issued for each pollutant at an existing major 

stationary source. 
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(2) A PAL permit may include more than one PAL. 

(3) A PAL permit may not cover facilities or emissions units at more than 

one existing major stationary source. 

(4) A PAL permit may be consolidated with a new source review permit at 

the existing major stationary source. 

(5) A PAL permit can be issued only for an existing major stationary 

source; it may not be issued for a new major stationary source as defined in 40 Code of 

Federal Regulations §51.165(a)(1)Civ)(A) and §51.166(b)C1)(i) [§51.165(iv)(A)]. 

(b) The new owner of a major stationary source shall comply with §116.110(e) of 

this title (relating to Applicability), provided that all facilities, or emissions units at a 

major stationary source, covered by a PAL permit change ownership at the same time 

and to the same person, or both the new owner and existing permit holder must obtain a 

PAL permit alteration allocating the emission prior to the transfer of the permit by the 

commission. After the sale of a facility, or emissions unit at a major stationary source, 

but prior to the transfer of a permit requiring a permit alteration, the original PAL 

permit holder remains responsible for ensuring compliance with the existing PAL 

permit and all rules of the commission. 
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(c) The owner of the facility, emissions unit at a major stationary source, group of 

facilities, or account or the operator of the facility, emissions unit at a major stationary 

source, group of facilities, or account that is authorized to act for the owner is 

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

section. 

§116.186. General and Special Conditions. 

(a) The plant-wide applicability limit (PAL) will impose an annual emission 

limitation in tons per year, that is enforceable for all facilities, or emissions units at a 

major stationary source, that emit the PAL pollutant. For each month during the PAL 

effective period after the first 12 months of establishing a PAL, the major stationary 

source owner or operator shall demonstrate that the sum of the monthly emissions from 

each facility under the PAL for the previous 12 consecutive months is less than the PAL 

(a 12-month average, rolled monthly). For each month during the first 11 months from 

the PAL effective date, the major stationary source owner or operator shall demonstrate 

that the sum of the preceding monthly emissions from the PAL effective date for each 

facility under the PAL is less than the PAL. Each PAL must include emissions of only 

one pollutant. The PAL must include all emissions, including fugitive emissions, to the 

extent quantifiable, from all facilities or emissions units at a major stationary source 

included in the PAL that emit or have the potential to emit the PAL pollutant. 
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(b) The following general conditions are applicable to every PAL permit. 

(1) Applicability. This section does not authorize any facility to emit air 

pollutants but establishes an annual emissions level below which new and modified 

facilities, or emissions units at a major stationary source, will not be subject to major 

new source review for that pollutant. 

(2) Sampling requirements. If sampling of stacks or process vents is 

required, the PAL permit holder shall contact the commission's 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 PAL permit 

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

operations or contracting with an independent sampling consultant. 

(3) Equivalency of methods. The permit holder shall demonstrate 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 PAL permit. Alternative methods must be applied for in writing and 
Texas Commission on Environmental Quality Page 64 

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must be reviewed and approved by the executive director prior to their use in fulfilling 

any requirements of the permit. 

(4) Recordkeeping and reporting. 

(A) A copy of the PAL permit along with information and data 

sufficient to demonstrate continuous compliance with the emission caps contained in 

the PAL permit must be maintained in a file at the plant site and made available at the 

request of personnel from the commission or any air pollution control program having 

jurisdiction. For facilities that normally operate unattended, this information must be 

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

the permit application. This information must 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 PAL permit. 

(B) The owner or operator shall retain a copy of the PAL permit 

application and any applications for revisions to the PAL, each annual certification of 

compliance under §122.146 of this title (relating to Compliance Certification Terms and 

Conditions), and the data relied on in certifying the compliance for the duration of the 

PAL plus five years. 
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(C) A semiannual report shall be submitted to the executive director 

within 30 days of the end of each reporting period that contains: 

(i) the identification of owner and operator and the permit 

number; 

(ii) total annual emissions (in tons per year) based on a 12-

month rolling total for each month in the reporting period; 

(iii) all data relied upon, including, but not limited to, any 

quality assurance or quality control data, in calculating the monthly and annual PAL 

pollutant emissions; 

(iv) a list of any facility modified or added to the major 

stationary source during the preceding six-month period; 

(v) the number, duration, and cause of any deviations or 

monitoring malfunctions (other than the time associated with zero and span calibration 

checks), and any corrective action taken. This may be satisfied by referencing the PAL 
Texas Commission on Environmental Quality Page 66 

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permit number in the semiannual report for the site submitted under §122.145 of this 

title (relating to Reporting Terms and Conditions); 

(vi) a notification of a shutdown of any monitoring system, 

whether the shutdown was permanent or temporary, the reason for the shutdown, the 

anticipated date that the monitoring system will be fully operational or replaced with 

another monitoring system, and whether the emissions unit monitored by the 

monitoring system continued to operate, and the calculation of the emissions of the 

pollutant or the number determined by method included in the permit; and 

(vii) a signed statement by the responsible official, as defined 

in §122.10 of this title (relating to General Definitions), certifying the truth, accuracy, 

and completeness of the information provided in the report. 

(D) The owner or operator shall submit the results of any 

revalidation test or method to the executive director within three months after 

completion of such test or method. 

(5) Maintenance of emission control. The facilities covered by the PAL 

permit will not be operated unless all air pollution emission capture and abatement 
Texas Commission on Environmental Quality Page 67 

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equipment is maintained in good working order and operating properly during normal 

facility operations. 

( 6) Compliance with rules. Acceptance of a PAL permit by a permit 

applicant constitutes an acknowledgment and agreement that the holder will comply 

with all rules and orders of the commission issued in conformity with the Texas Clean 

Air Act and the conditions precedent to the granting of the permit. If more than one 

state or federal rule or PAL permit condition is applicable, the most stringent limit or 

condition will govern and be the standard by which compliance must 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 PAL 

permit. 

(7) Effective period. A PAL is effective for ten years. 

(8) Absence of monitoring data. A source owner or operator shall record 

and report maximum potential emissions without considering enforceable emission 

limitations or operational restrictions for a facility during any period of time that there 

is no monitoring data, unless another method for determining emissions during such 

periods is specified in the PAL permit special conditions. 
Texas Commission on Environmental Quality Page 68 

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(g) Monitoring system requirements. Failure to use a monitoring system 

that meets the requirements of this section renders the PAL permit invalid [is a violation 

of the PAL permit]. 

(10) Revalidation. All data used to establish the PAL pollutant must be 

revalidated through performance testing or other scientifically valid means approved by 

the executive director. Such testing must occur at least once every five years after 

issuance of the PAL. 

(11) Renewal. If a PAL renewal application is submitted to the executive 

director in accordance with §116.196 of this title (relating to Renewal of a Plant-wide 

Applicability Limit Permit), the PAL shall not expire at the end of the PAL effective 

period. It shall remain in effect until a renewed PAL permit is issued by the executive 

director or the application is voided. 

(c) Each PAL permit must include special conditions that satisfy the following 

requirements. 

(1) For the purposes of this subchapter, the definitions of the following 

terms are the same as those provided in 40 Code of Federal Regulations §51.165. 
Texas Commission on Environmental Quality Page 69 

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(A) Continuous emission monitoring system (CEMS). 

(B) Continuous emissions rate monitoring system (CERMS). 

(C) Continuous parameter monitoring system (CPMS). 

(D) Predictive emissions monitoring system (PEMS). 

(2) The PAL monitoring system must accurately determine all emissions of 

the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized 

for use in the PAL permit must be based on sound science and meet generally acceptable 

scientific procedures for data quality and manipulation. 

(3) The PAL monitoring system must employ one or more of the general 

monitoring approaches meeting the minimum requirements as described in 

subparagraphs (A) - (D) of this paragraph. 

(A) An owner or operator using mass balance calculations to 

monitor PAL pollutant emissions from activities using coating or solvents shall meet the 

following requirements: 
Texas Commission on Environmental Quality Page 70 

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(i) provide a demonstrated means of validating the published 

content of the PAL pollutant that is contained in, or created by, all materials used in or 

at the facility; 

(ii) assume that the facility emits all of the PAL pollutant that 

is contained in, or created by, any raw material or fuel used in or at the facility, if it 

cannot otherwise be accounted for in the process; and 

(iii) where the vendor of a material or fuel that is used in or 

at the facility publishes a range of pollutant content from such material, the owner or 

operator shall use the highest value of the range to calculate the PAL pollutant emissions 

unless the executive director determines that there is site-specific data or a site-specific 

monitoring program to support another content within the range. 

(B) An owner or operator using a CEMS to monitor PAL pollutant 

emissions shall meet the following requirements. 

(i) The CEMS must comply with applicable performance 

specifications found in 40 Code of Federal Regulations Part 6o, Appendix B. 
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(ii) The CEMS must sample, analyze, and record data at least 

every 15 minutes while the emissions unit is operating. 

(C) An owner or operator using CPMS or PEMS to monitor PAL 

pollutant emissions shall meet the following requirements. 

(i) The CPMS or the PEMS must be based on current sitespecific data demonstrating a correlation between the monitored parameter(s) and the 

PAL pollutant emissions across the range of operation of the facility. 

(ii) Each CPMS or PEMS must sample, analyze, and record 

data at least every 15 minutes or at another less frequent interval approved by the 

executive director, while the facility is operating. 

(D) An owner or operator using emission factors to monitor PAL 

pollutant emissions shall meet the following requirements. 

(i) All emission factors must be adjusted, if appropriate, to 

account for the degree of uncertainty or limitations in the factors' development. 
Texas Commission on Environmental Quality Page 72 

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(ii) The facility must operate within the designated range of 

use for the emission factor, if applicable. 

(iii) If technically practicable, the owner or operator of a 

significant facility that relies on an emission factor to calculate PAL pollutant emissions 

shall conduct validation testing to determine a site-specific emission factor within six 

months of PAL permit issuance, unless the executive director determines that testing is 

not required. 

(E) An alternative monitoring approach must meet the 

requirements in paragraph (1) of this subsection and be approved by the executive 

director. 

(4) Where an owner or operator of a facility cannot demonstrate a 

correlation between a monitored parameter(s) and the PAL pollutant emissions rate at 

all operating points of the facility, the executive director shall: 

(A) establish default value(s) for determining compliance with the 

PAL based on the highest potential emissions reasonably estimated at such operating 

point(s); or 
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(B) determine that operation of the facility during operating 

conditions when there is no correlation between monitored parameter(s) and the PAL 

pollutant emissions is a violation of the PAL. 
THE STATE OF TEXAS 

COUNTY OF TRAVIS 

TEXAS COMMISSION ON ENVIRri\~~Jf\W~ft ~U~f>TT,-true and correc.t copy of a 'Te~Eff'Corrim1ss~ ont:nv1ronmental Quality document, 

~'l.'E Op which is filed in the permanent records of the Commission. 

f.<./ "(1'1 Given u.nder my hand and the seal of office on 

~~ ~ /!:YAc;&4C&Jov AUG 0 8 2012 "~ Bridget C. &ohac, Chief Clerk 

ORDER ADOPTIN&as Commission on Environmental Quality 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2011-2229-RUL 

On July 25, 2012, the Texas Commission on Environmental Quality (Commission), 

during a public meeting, considered adoption of amendments to§ 116.12, Nonattainment and 

Prevention of Significant Deterioration Review Definitions; § 116.150, New Major Source or 

Major Modification in Ozone Nonattainment Areas;§ 116.151, New Major Source or Major 

Modification in Nonattainment Area Other Than Ozone; § 116.180, Applicability; and 

§ 116.186, General and Special Conditions and revisions to the state implementation plan 

(SIP). The Commission adopts these amendments and corresponding revisions to the SIP. 

Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2008), the 

Commission has the authority to control the quality of the state's air and to issue orders 

consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. 

Health & Safety Code. Notice of the proposed adoption was published for comment in the 

March 9, 2012 issue of the Texas Register (37 TexReg 1661). 

Pursuant to 40 Code of Federal Regulations § 51.102 and after proper notice, the 

Commission conducted a public hearing to consider the amended rules and revisions to the 

SIP. Proper notice included prominent advertisement in the areas affected at least 30 days 

prior to the date of the hearing. A public hearing was held in Austin on March 29, 2012. 

The Commission circulated hearing notices of its intended action to the public, 

including interested persons, the Regional Administrator of the EPA, and all applicable local 

air pollution control agencies. The public was invited to submit data, views, and . 

recommendations on the proposed amendments and SIP revisions, either orally or in writing, 

at the hearing or during the comment period. Prior to the scheduled hearing, copies of the 

proposed amendments and SIP revisions were available for public inspection at the 

Commission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed 

amendments and SIP revisions were submitted to the Commission during the comment 

period, and were considered by the Commission as reflected in the analysis of testimony 

incorporated by reference to this Order. The Commission finds that the analysis of testimony 

includes the names of all interested groups or associations offering comment on the proposed 

amendments and the SIP revisions and their position concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and 

revisions to the SIP incorporated by reference to this Order are hereby adopted. The adopted 

rules and the revisions to the SIP are incorporated by reference in this Order as if set forth at 

length verbatim in this Order. 
IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, 

the Chainna~ s~ould transmit a copy of this Order, together with the adopted amendments 

and reyisions td, th.~ SIP, to the Regional Administrator of EPA as a proposed revision to the 

Texas SIP pursuantt6 the Federal Clean Air Act, codified at 42 U.S. Code Ann.§§ 7401-

7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative 

Procedure Act, Tex. Gov't Code,§ 2001.033 (Vernon 2008). 

If any portion of this Order is for any reason held to be invalid by a court of competent 

jurisdiction, the invalidity of any portion shall not affect the validity of the remaining 

portions. 

Date issued: AUG 0 7 2012 

TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

haw, Ph.D., Chairman 
ing methods approved by the executive director and in accordance with 

the appropriate procedures ofthe TCEQ Sampling Procedures Manual. 

All units required to be equipped with an oxidation catalyst control device must also be retested after every 16,000 hours of operation. 

(4) Except for rich-bum engines equipped with oxidation" 

reduction (three-way) catalysts, and units required to be equipped with 

an oxidation catalyst under subsection ( d)(3) or ( 4) of this section, the 

uncontrolled source must demonstrate compliance with the emission 

standards in subsection (d) of this section. 

(t) Recordkeeping. In addition to the minimum records re~ 

quired by § 106.8 of this title (relating to Recordkeeping), the owner 

or operator must keep the following records: 

(1) For the life ofthe CHP unit, the registration application 

and any additional representations made during the approval process 

to obtain the registration; and 

(2) The owner or operator must keep the following records 

for at least two years and make them available to the TCEQ or any local 

pollution control program with jurisdiction upon request: 

(A) A record of every one-week period of operation 

where the CHP unit did not comply with subsection (c)(2) of this 

section; 

(B) All monitoring and testing data generated in compliance with subsection (e) of this section and in a format that shows 

the emission standards have been met; 

(C) Records ofCHP unit operation sufficient to demonstrate compliance with any applicable hour-based requirements of subsection (e) of this section; 

(D) Records of maintenance described in subsection 

(g)(2) of this section; and 

(E) Records ofthe number of hours that any emergency 

fuel is used under subsection (c)(8) of this section, and the reason why 

operating on an emergency fuel is necessary. 

(g) Planned Maintenance, Startup, and Shutdown. 

(1) This PBR authorizes all emissions from planned startup 

and shutdown activities associated with facilities that are authorized by 

this section. 

(2) This PBR authorizes emissions from the tollowing 

planned maintenance activities associated with facilities authorized by 

this section: routine maintenance including, but not limited to, filter 

changes, oxygen sensor replacements, overhauls, lubricant changes, 

spark plug changes, and emission control system maintenance. 

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 July 27, 2012. 

TRD-201203901 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: August 16, 2012 

Proposal publication date: March 9, 2012 

For further information, please call: (512) 239-2141 

• • • 

CHAPTER 116. CONTROL OF AIR 

POLLUTION BY PERMITS FOR NEW 

CONSTRUCTION OR MODIFICATION 

The Texas Commission on Environmental Quality (commission 

or TCEQ) adopts amendments to §§116.12, 116.150, 116.151, 

116.180, and 116.186. 

Section 116.180 is adopted with change to the proposed text as 

published in the March 9, 2012, issue of the Texas Register (37 

TexReg 1661). Sections 116.12, 116.150, 116.151, and 116.186 

are adopted without changes to the proposed text and will not 

be republished. 

The amendments to §§116.12, 116.150, 116.151, 116.180, and 

116.186 will be submitted to the United States Environmental 

Protection Agency (EPA) as revisions to the State Implementation Plan (SIP). 

Background and Summary of the Factual Basis for the Adopted 

Rules 

On June 10, 2005, the TCEQ submitted amendments to §116.12 

to the EPA as revisions to the New Source Review (NSR) SIP 

and § 116.150 as revisions to the Nonattainment New Source 

Review (NNSR) SIP, both adopted on May 25, 2005. On January 

11, 2006, the TCEQ repealed §§116.180- 116.183, 116.410, 

and 116.617; amended §§116.12, 116.150, 116.151, 116.160, 

and 116.610; and adopted new §§116.121, 116.180, 116.182, 

116.184,116.186,116.188,116.190,116.192,116.194,116.196, 

116.198, 116.400, 116.402, 116.404, 116.406, 116.617, and 

116.1200. The TCEQ submitted these to the EPA as revisions 

to the NSR SIP to implement EPA's NSR Reform rules which 

became final on December 31, 2002. On September 23, 2009, 

the EPA published notice of the proposed disapproval of these 

revisions to the Texas SIP on September 23, 2009 (7 4 Federal 

Register 48467). The EPA published the final disapproval notice 

on September 15, 2010 (75 Federal Register 56423). 

On February 9, 2011, in response to the EPA's final disap· 

proval, the TCEQ repealed §116.121, adopted amendments 

to §§116.12, 116.115, 116.150, 116.180, 116.182, 116.186, 

116.188, 116.190, 116.192, 116.601, and 116.617; and adopted 

new § 116.127. The commission published these amendments 

in the February 25, 2011, issue of the Texas Register(36 TexReg 

1305 and 1324 ). On March 11, 2011, the TCEQ submitted a 

revised SIP package that was based on the rule amendments, 

with the exception of §116.617, adopted on February 9, 2011, 

and addressed the issues outlined in the EPA's disapproval. On 

September 30, 2011, the EPA expressed its intent to propose 

conditional approval of TCEQ rules implementing the changes 

to the NSR SIP and the NSR Reform and requested a dialog 

to resolve certain EPA concerns and facilitate a final approval. 

This rulemaking addresses those concerns. 

This rulemaking is at least as stringent as the federal rules it 

implements because it includes the applicable elements of the 

major NSR and plant-wide applicability limit (PAL) permit programs. The rulemaking action also ensures that the rulemaking, if adopted, will meet the requirements of Federal Clean Air 

Act (FCAA), § 110 which, among other requirements, requires 

that the elements of the SIP be enforceable, ensure compliance, include replicable elements, and ensure accountability. 

The specific changes to the PAL rules meet these basic requirements. In addition to this rulemaking, on May 4, 2012, the executive director provided a letter, at the request of EPA Region 6, 

which contained additional information regarding how the comADOPTED RULES August 10,2012 37 TexReg 6049 
mission's rules implementing NSR Reform comply with FCAA, 

§ 11 0(1). The letter also addresses specific questions raised by 

EPA Region 6 regarding the practical enforceability of PAL permits, TCEQ's treatment of malfunction emissions with regard to 

PAL permits, and the judicial admissibility of monitoring data required by PAL permits. 

Section by Section Discussion 

§116.12, Nonattainment and Prevention of Significant Deterioration Review Definitions 

The commission adopts the amendment to the definition of the 

term "Plant-wide applicability limit effective date" in §116.12(23) 

to remove language that references the date that a flexible permit was issued. Since PAL permits and flexible permits are addressed by two different sets of rules in Chapter 116, it is inappropriate to reference flexible permits in the definition of the term 

PAL effective date. The change removes this obsolete language, 

clarifying permitting requirements and ensuring consistency with 

federal requirements regarding NSR permits. 

§116.150, New Major Source or Major Modification in Ozone 

Nonattainment Areas 

The federal term "emissions unit" as defined in federal rules is 

similar to the term "facility" as defined in the Texas Clean Air Act 

(TCAA). In order to ensure clarity and consistency with federal 

requirements, the commission is adding the language "or emissions unit" where the terms "facility" or "facilities" are used (i.e., 

§116.150(a), (d)(1) and (3)). 

§ 116. 151, New Major Source or Major Modification in Nonattainment Area Other Than Ozone 

The federal term ''emissions unit" as defined in federal rules is 

similar to the term "facility" as defined in the TCAA. In order to ensure clarity and consistency with federal requirements, the commission is adding the language "or emissions unit" where the 

terms "facility" or "facilities" are used in §116.151(a), (c)(1) and 

(3)). 

In response to EPA's proposed disapproval notice published 

September 23, 2009, the commission's executive director submitted comments replying to EPA's solicitation from the TCEQ 

to comment on EPA's interpretation of Texas law and the Texas 

NSR SIP with respect to the term "facility," stating that it is 

critical to EPA's understanding of the Texas Permitting Program. 

TCEQ's comments stated, in part, that the definition of the term 

"facility" is one of the cornerstones of the air permitting program 

in Texas under the TCAA. The comments specifically stated that 

the TCEQ's interpretation of Texas law differs from that of EPA. 

In its final disapproval notice on September 15, 2010 (75 Federal 

Register 56423), EPA carried forward text from its proposed disapproval from September 23, 2009, by stating in footnote 7 on 

page 56433 and also on page 56438, "{i}t is our understanding 

of State law, that a "facility" can be an "emissions unit," i.e., any 

part of a stationary source that emits or may have the potential 

to emit any air contaminant. A "facility" also can be a piece of 

equipment, which is smaller than an "emissions unit." A "facility" 

can be a "major stationary source" as defined by Federal law. A 

"facility" under State law can be more than one "major stationary 

source." It can include every emissions point on a company site, 

without limiting these emissions points to only those belonging 

to the same industrial grouping (SIC code)." In the same notice 

in footnote 15 on page 56438, EPA acknowledges that TCEQ's 

definition of "facility" is part of the approved Texas SIP. 

37 Tex:Reg 6050 August 10, 2012 Texas Register 

Under the TCAA in Texas Health and Safety Code (THSC), 

§382.003(6) and in §116.1 0(4), "facility" is defined as "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 considered to be a facility." A 

facility may constitute or contain a stationary source- a point of 

origin of a contaminant, as defined in THSC, §382.003(12) and 

in §116.10(15), a definition that is approved into the Texas SIP. 

As a discrete point, a facility can constitute but cannot contain a 

"major stationary source" as defined by federal law and in the 

TCEQ's SIP-approved §116.12(17). A facility is subject to major 

and minor NSR requirements, depending on the facts of the 

specific application. 

The TCEQ and its predecessor agencies have consistently interpreted facility to preclude inclusion of more than one stationary source, in contrast to EPA's stated understanding. Likewise, 

TCEQ does not interpret facility to include "every emissions point 

on a company site, even if limiting these emission points to only 

those belonging to the same industrial grouping (SIC code)." The 

federal definition of "major stationary source" in 40 Code of Federal Regulations (CFR) §51.166(b)(1 )(i)(a) includes the concept 

of multiple emission points and is not equivalent to the state definition of "source" which is a single emission point. A "major stationary source" can include more than one "emission unit" which 

is equivalent to "facility" under Texas law. 

Under major NSR, EPA uses the term "emissions unit" (generally) when referring to part of a "stationary source;" TCEQ 

translates "emissions unit" to mean "facility." The commission's 

SIP-approved Prevention of Significant Deterioration (PSD) permitting rule in §116.160(c)(3) states, "{t}he term 'facility' shall replace the words 'emissions unit' in the referenced sections of the 

CFR." 

TCEQ and its predecessor agencies have applied this interpretation of the term "facility" for more than 30 years. The TCEQ's 

interpretation of Texas statutes enacted by the legislature is addressed by the Texas Code Construction Act (Texas Government 

Code, Chapter 311 ). More specifically, words and phrases that 

have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly 

under Texas Government Code, §311.011 (b). 

In response to the proposed disapproval, the commission previously considered adding the phrase "or emissions unit" in its 

PAL rules, but did not do so in the nonattainment permitting rules 

because of the long term use of the term "facility" in the Texas 

permitting rules and the approved Texas SIP. EPA approved versions of the nonattainment permitting rules into the SIP, including 

the definition of "facility." 

In order to accelerate the approval of the federal nonattainment 

permitting program, the commission proposed and is adopting 

the addition of"emissions unit" to §116.150 and §116.151. 

§116.180, Applicability 

The commission adopts a correction to a typographical error in 

§ 116.180(a)(5) by changing a reference to the federal rules from 

40 CFR §51.165(iv)(A) to 40 CFR §51.165(a)(1 )(iv)(A). Additionally, the commission is adding a reference to the federal definition of major stationary source in 40 CFR §51.166(b)(1 ). Adding 

this reference strengthens the TCEQ's PAL rules by limiting the 

applicability of a PAL to a source that conforms to the federal 

definition of a major stationary source in 40 CFR §51.166(b )( 1 ). 
The changes clarify permitting requirements and ensure consis~ 

tency with federal requirements regarding NSR permits. 

§116.186, General and Special Conditions 

The commission amends §116.186(b)(9) to state that failure to 

use the required monitoring would render the PAL permit invalid. 

The commission adopts the change to ensure consistency with 

federal rule requirements. 

In both its proposed and final disapproval notices for the NSR 

Reform rules (as mentioned elsewhere in this preamble), the 

EPA stated that the specific monitoring definitions are essential 

for the enforceability of and providing the means for determining 

compliance with a PAL program. EPA also specifically stated 

that one of the bases for disapproval of the commission's PAL 

rules is that the rules lacked a mandate that failure of the mon~ 

itoring system to meet the requirements of this section renders 

a PAL permit invalid. In response, the commission specifically 

amended its PAL rules to address the monitoring systems, and 

also added § 116.186(b )(9) specifying that failure to use a moni~ 

taring system is a violation of the PAL permit. EPA did not provide 

comment on that amendment, nor on § 116.186(b )(9). The com~ 

mission understood that the proposed changes were satisfac~ 

tory for SIP approval. However, §116.186(b)(9) did not address 

EPA's concerns, which were related to the installation and gen~ 

eral use of monitoring systems rather than compliance issues, 

such as monitoring downtime, the latter which is addressed in 

§116.186(b)(8). As discussed elsewhere in this preamble, EPA 

contacted the commission in 2011 regarding its review of the 

submitted rules and raised the issue of ensuring that the commission's rules adequately adopted the EPA's requirement that 

a PAL permit is invalid if it does not require a monitoring system 

and the system is not installed. 

EPA's general monitoring requirements for PAL permits are in 

40 CFR §51.165(f)(12)(i)(A)- (D) and §51.166(w)(12)(i)(a)- (d). 

40 CFR §51.165(f)(12)(i) and §51.166(w)(12)(i) include requirements for a monitoring system in each PAL permit that is based 

on sound science and meets generally acceptable scientific procedures for data quality and manipulation; those systems must 

be one of the four general monitoring approaches in the federal 

PAL rules. 40 CFR §51.165(f)(12)(i)(D) and §51.166(w)(12)(i)(d) 

provide that failure to use a monitoring system that meets the applicable federal rule requirements renders the PAL invalid (see 

discussion in 67 Federal Register80211- 80214, December 31, 

2002). Therefore, based on the text and context of both the 

rule and the accompanying preamble, the phrase "failure to use" 

in EPA's rule means a failure to install or failure to operate the 

prescribed monitoring device or system to operate under a PAL 

permit, rather than an inadvertent malfunction or maintenance 

downtime of the monitoring device or system. The change to 

§116.186(b)(9) will address EPA's concern that the commission's 

rules fully incorporate all PAL permit requirements. 

Any invalidation of a PAL permit will be subject to necessary 

and appropriate procedures in Texas statutes and TCEQ rules. 

Texas Water Code (TWC), §7.302, regarding Grounds for Revocation or Suspension of Permit, provides the commission the authority to revoke and suspend or reissue a permit on prescribed 

grounds after notice and hearing. Prior to any invalidation of a 

PAL permit, the commission anticipates enforcement action that 

could include a request for revocation. The commission generally does not expect occurrence of circumstances which could 

lead to invalidation (e.g., failure to install or use monitoring equipment) and thus few, if any, revocation proceedings. 

Final Regulatory Impact Analysis Determination 

The commission reviewed the adopted rulemaking in light of the 

regulatory impact analysis (RIA) requirements of Texas Government Code, §2001.0225, and determined that the rulemaking 

does not meet the definition of a major environmental rule as defined in that statute, and in addition, if it did meet the definition, 

would not be subject to the requirement to prepare a regulatory 

impact analysis. 

A major environmental rule means a rule, the specific intent of 

which is to protect the environment or reduce risks to human 

health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health 

and safety of the state or a sector of the state. The specific intent 

of the adopted revisions is to include definitions for, and make 

other changes to the PAL rules to meet federal requirements. 

Additionally, even if the rules met the definition of a major environmental rule, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a 

major environmental rule, which are listed in Texas Government 

Code, §2001.0225(a). Texas Government Code, §2001.0225, 

applies only to a major environmental rule, the result of which 

is to: 1) exceed a standard set by federal law, unless the rule 

is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by 

federal law; 3) exceed a requirement of a delegation agreement 

or contract between the state and an agency or representative 

of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the 

agency instead of under a specific state law. 

The adopted rules implement requirements of the FCAA. Under 42 United States Code (USC), §7 410, each state is required 

to adopt and implement a SIP containing adequate provisions 

to implement, attain, maintain, and enforce the National Ambient Air Quality Standards (NAAQS) within the state. While 42 

USC, §7 410 generally does not require specific programs, methods, or emission reductions in order to meet the standard, state 

SIPs must include specific requirements as specified by 42 USC, 

§7 410. The provisions of the FCAA recognize that states are in 

the best position to determine what programs and controls are 

necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public, to collaborate on the best methods for attaining the NAAQS for the specific 

regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state 

from developing a program that meets the requirements of 42 

USC, §741 0, and assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of the NAAQS 

within the state. One of the requirements of 42 USC, §7410 is 

for states to include programs for the regulation of the modification and construction of any stationary source within the area 

covered by the plan as necessary to assure that the NAAQS are 

achieved, including a permit program as required in FCAA, Parts 

C and D, or NSR. Additionally, once states have developed SIPs, 

and those plans are approved by the EPA, the FCAA prescribes, 

in 42 USC, §7502(e) that the EPA, in modifying a NAAQS, shall 

promulgate rules that apply to all areas that have not attained the 

previous NAAQS that provide for controls that are no less stringent than the controls that previously applied to the area. This 

rulemaking addresses those sections submitted as revisions to 

the NSR SIP and were subsequently proposed for disapproval 

ADOPTED RULES August 10, 2012 37 TexReg 6051 
by the EPA. Specifically, those concern definitions for and other 

changes to the PAL rules to meet federal requirements. 

The requirement to provide a fiscal analysis of regulations in the 

Texas Government Code was amended by Senate Bill (SB) 633 

during the 75th Legislature, 1997. The intent of SB 633 was torequire agencies to conduct a regulatory impact analysis of extraordinary rules. The statutory language identifies these as major 

environmental rules that will have a material adverse impact and 

will exceed a requirement of state law, federal law, or a delegated 

federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement 

would seldom apply, the commission provided a cost estimate 

for SB 633 that concluded, "based on an assessment of rules 

adopted by the agency in the past, it is not anticipated that the 

bill will have significant fiscal implications for the agency due to 

its limited application." The commission also noted that the number of rules that would require assessment under the provisions 

of the bill was not large. The commission bases this conclusion, 

in part, on the criteria set forth in the bill that exempted rules from 

the full analysis unless the rule was a major environmental rule 

that exceeds a federal law. 

Because of the ongoing need to meet federal requirements, the 

commission routinely proposes and adopts rules incorporating 

or satisfying specific federal requirements. The commission presumes the legislature to understand this federal scheme. If each 

rule proposed by the commission to meet a federal requirement 

was considered to be a major environmental rule that exceeds 

federal law, then each of those rules would require the full RIA 

contemplated by SB 633. This conclusion is inconsistent with 

the conclusions reached by the commission in its cost estimate 

and by the Legislative Budget Board in its fiscal notes. Since 

the commission presumes the legislature to understand the fiscal impacts of the bills it passes, and that presumption is based 

on information provided by state agencies and the Legislative 

Budget Board, the commission believes that the intent of SB 

633 was only to require the full RIA for rules that are extraordinary in nature. While the adopted rules may have a broad impact, that impact is no greater than is necessary or appropriate 

to meet the requirements of the FCAA, and in fact creates no 

additional impacts since the adopted rules do not exceed the requirement to attain and maintain the NAAQS. For these reasons, 

the adopted rules fall under the exception in Texas Government 

Code, §2001.0225(a}, because they are required by, and do not 

exceed, federal law. 

The commission has consistently applied this construction to its 

rules since this statute was enacted in 1997. Since that time, 

the legislature has revised the Texas Government Code, but 

left this provision substantially unamended. It is presumed that 

"when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the 

statute, the legislature is deemed to have accepted the agency's 

interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 

485, 489 (Tex. App. Austin 1995}, writ denied with per curiam 

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. 

Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto 

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. 

Austin 2000, pet. denied); and Coastallndust. Water Auth. v. 

Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978)}. 

37 TexReg 6052 August 10, 2012 Texas Register 

The commission's interpretation of the RIA requirements is also 

supported by a change made to the Administrative Procedure 

Act (APA) by the legislature in 1999. In an attempt to limit the 

number of rule challenges based upon APA requirements, the 

legislature clarified that state agencies are required to meet 

these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The 

legislature specifically identified Texas Government Code, 

§2001.0225 as falling under this standard. As discussed in 

this analysis and elsewhere in this preamble, the commission 

has substantially complied with the requirements of Texas 

Government Code, §2001.0225. 

The adopted rules implement requirements of the FCAA, specifically to adopt and implement SIPs to attain and maintain the 

NAAQS, including a requirement to adopt and implement permit 

programs. The specific intent of the rulemaking is to address 

those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, those concern definitions for and other changes to the PAL 

rules to meet federal requirements. The adopted rules were not 

developed solely under the general powers of the agency, but 

are authorized by specific sections of THSC, Chapter 382 (also 

known as the TCAA}, and the TWC, which are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking action is not subject to the regulatory analysis provisions of 

Texas Government Code, §2001.0225(b). 

Takings Impact Assessment 

Under Texas Government Code, §2007.002(5), taking means a 

governmental action that affects private real property, in whole or 

in part or temporarily or permanently, in a manner that requires 

the governmental entity to compensate the private real property 

owner as provided by the Fifth and Fourteenth Amendments to 

the United States Constitution or Texas Constitution §17 or §19, 

Article I; or a governmental action that affects an owner's private 

real property that is the subject of the governmental action, in 

whole or in part or temporarily or permanently, in a manner that 

restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is 

the producing cause of a reduction of at least 25% in the market 

value of the affected private real property, determined by comparing the market value of the property as if the governmental 

action is not in effect and the market value of the property determined as if the governmental action is in effect. 

The commission completed a takings impact analysis for this 

rulemaking under the Texas Government Code, §2007.043. The 

primary purpose of this rulemaking, as discussed elsewhere in 

this preamble, is to address those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, the changes concern definitions 

for and other changes to the PAL rules to meet federal requirements. 

The adopted rules will not create any additional burden on private real property. The adopted rules will not affect private real 

property in a manner that would require compensation to private 

real property owners under the United States Constitution or the 

Texas Constitution. This adoption also will not affect private real 

property in a manner that restricts or limits an owner's right to the 

property that would otherwise exist in the absence of the governmental action. Therefore, the rulemaking will not cause a taking 

under Texas Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 
The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and commission rules in 30 TAG Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAG 

§505.11 (b )(2), relating to Actions and Rules Subject to the CMP, 

commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The 

commission reviewed this action for consistency with the CMP 

goals and policies in accordance with the rules of the Coastal 

Coordination Council, and determined that the action is consistent with the applicable CMP goals and policies. 

The CMP goal applicable to this rulemaking action is the goal 

to protect, preserve, and enhance the diversity, quality, quantity, 

functions, and values of coastal natural resource areas (31 TAG 

§501.12(1)). The CMP policy applicable to this rulemaking action 

is the policy that commission rules comply with federal regulations in 40 CFR to protect and enhance air quality in the coastal 

areas (31 TAG §501.14(q)). Therefore, in accordance with 31 

TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies. 

Effect on Sites Subject to the Federal Operating Permits Program 

Chapter 116 is an applicable requirement of 30 TAG Chapter 

122, Federal Operating Permits Program. Owners or operators 

subject to the federal operating permit program must, consistent 

with the revision process in Chapter 122, upon the effective date 

of the adopted rulemaking, revise their operating permit to include the new Chapter 116 requirements. Additionally, sources 

subject to the rules may become subject to the federal operating 

permit program. 

Public Comment 

The commission held a public hearing on the proposal in Austin 

on March 29, 2012. The following persons submitted comments 

during the public comment period which closed on April9, 2012: 

Baker Botts, L.L.P. on behalf of the Texas Industry Project (TIP). 

Response to Comments 

TIP requests that the commission add language to 

§ 116.186(b )(9) that unambiguously forecloses the possibility 

that the TCEQ rule be interpreted as the malfunction of a 

monitoring device could lead to the invalidation of a PAL permit. 

TIP requested additional rule text stating that monitor downtime 

includes periods when quality-assured monitoring data is not 

available for any reason, including equipment malfunction, 

repair, periodic maintenance, and quality assurance activities. 

TIP stated that the requested language is consistent with the 

federal PAL rules and should not prevent prompt EPA approval. 

TIP further stated only the rule text is enforceable, and there is 

no assurance that future enforcement or interpretation will defer 

to the commission's position, as expressed in the preamble, 

that "failure to use" a monitoring system refers to installation 

and does not include malfunctions. 

The commission has not changed the rule in response to this 

comment. EPA contacted the commission in 2011 regarding its 

review of the submitted PAL rules and raised the issue of ensuring that the commission's rules adequately adopted the EPA's 

requirement that a PAL permit is invalid if the required monitoring system is not required by the permit nor installed by the permittee. As thoroughly discussed elsewhere in this preamble, the 

phrase "failure to use" in EPA's PAL rule means a failure to install 

or failure to operate the prescribed monitoring device or system 

to operate under a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the monitoring device or 

system. The language in § 116.186(b )(9) is intentionally identical 

to that used by EPA in its PAL rules and was chosen to ensure the 

SIP approvability of this adoption. The commission has no formal indication from EPA that it would find any other language approvable other than that proposed, and the commission is adopting that language. Further, the suggested language is broader 

than that in EPA's preamble, which TIP cites in its comments. 

In the context of an enforcement matter or litigation regarding 

compliance with § 116.186(b )(9), should there be a question of 

whether the commission is enforcing the rule in harmony with 

this adoption preamble, the parties can consult the preamble 

to ensure that enforcement or litigation decisions appropriately 

take into consideration the commission's position on this rule language as expressed in the preamble. 

TIP also requested that the commission specify monitoring 

requirements that are subject to §116.186(b)(9) when issuing, 

changing, or reviewing individual permits that include PALs. 

The permit invalidation language in the federal PAL rule should 

be construed to apply to only to the minimum monitoring requirements of the PAL rules and not to supplemental non-PAL 

pollutant monitoring requirements or to systems exceeding 

minimum PAL requirements. 

The commission's permits will specify monitoring requirements 

that meet applicable rules, including §116.186, for PAL permits, 

as well as any other monitoring requirements necessary for compliance with the FCAA, TCAA, the Texas SIP, and the rules of the 

commission. The commenter is correct that the criteria for permit invalidation is limited to those monitoring systems installed 

to meet the minimum PAL requirements. No change was made 

to the rules in response to this comment. 

SUBCHAPTER A. DEFINITIONS 

30 TAC §116.12 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Water Code (TWC), 

§5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under 

the TWC; TWC, §5.1 03, concerning Rules, which authorizes 

the commission to adopt rules necessary to carry out its powers 

and duties under the lWC; lWC, §5.1 05, concerning General 

Policy, which authorizes the commission by rule to establish and 

approve all general policy of the commission; and under Texas 

Health and Safety Code (THSC), §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with 

the policy and purposes of the Texas Clean Air Act. The amendment is also adopted under THSC, §382.002, concerning Policy 

and Purpose, which establishes the commission's purpose to 

safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; 

THSC, §382.011, concerning General Powers and Duties, which 

authorizes the commission to control the quality of the state's 

air; and THSC, §382.012, concerning State Air Control Plan, 

which authorizes the commission to prepare and develop a 

general, comprehensive plan for the proper control of the state's 

air; THSC, §382.016, concerning Monitoring Requirements; 

Examination of Records, which authorizes the commission to 

prescribe reasonable requirements for measuring and monitorADOPTED RULES August 10, 2012 37 TexReg 6053 
ing the emissions of air contaminants from a source or from an 

activity causing or resulting in the emission of air contaminants; 

THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling 

methods and procedures to be used in determining violations of 

and compliance with the commission's rules; THSC, §382.040, 

concerning Documents; Public Property, which provides that all 

information, documents, and data collected by the commission 

in performing its duties are state property; THSC, §382.051, 

concerning Permitting Authority of Commission; Rules, which 

authorizes the commission to issue permits for construction 

of new facilities or modifications to existing facilities that may 

emit air contaminants; THSC, §382.0511, concerning Permit 

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, 

concerning Modification of Existing Facility, which prescribes 

how the commission will evaluate modifications of existing 

facilities; THSC, §382.0513, concerning Permit Conditions, 

which authorizes the commission to establish and enforce 

permit conditions; THSC, §382.0514, concerning Sampling, 

Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal 

source or facility; THSC, §382.0515, concerning Application for 

Permit, which specifies permit application requirements; and 

THSC, §382.0518, concerning Preconstruction Permit, which 

authorizes the commission to issue preconstruction permits. 

The amendment is also adopted under Federal Clean Air Act 

(FCAA), 42 United States Code (USC), §§7401 et seq., which 

requires states to submit state implementation plan revisions 

that specify the manner in which the National Ambient Air 

Quality Standard will be achieved and maintained within each 

air quality control region of the state. 

The adopted amendment implements THSC, §§382.002, 

382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 

382.051, 382.0511 - 382.0515, and 382.0518, and FCAA, 42 

USC, §§7401 et seq. 

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 July 27, 2012. 

TRD-201203894 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: August 16, 2012 

Proposal publication date: March 9, 2012 

For further information, please call: (512) 239-2548 

• • • 

SUBCHAPTER B. NEW SOURCE REVIEW 

PERMITS 

DIVISION 5. NONATTAINMENT REVIEW 

PERMITS 

30 TAC §116.150, §116.151 

STATUTORY AUTHORITY 

The amendments are adopted under Texas Water Code (TWC), 

§5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under 

37 TexReg 6054 August 10, 2012 Texas Register 

the TWC; TWC, §5.103, concerning Rules, which authorizes 

the commission to adopt rules necessary to carry out its powers 

and duties under the TWC; TWC, §5.1 05, concerning General 

Policy, which authorizes the commission by rule to establish and 

approve all general policy of the commission; and under Texas 

Health and Safety Code (THSC), §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with 

the policy and purposes of the Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, concerning 

Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with 

the protection of public health, general welfare, and physical 

property; THSC, §382.011, concerning General Powers and 

Duties, which authorizes the commission to control the quality 

of the state's air; and THSC, §382.012, concerning State Air 

Control Plan, which authorizes the commission to prepare and 

develop a general, comprehensive plan for the proper control of 

the state's air; THSC, §382.051, concerning Permitting Authority 

of Commission; Rules, which authorizes the commission to 

issue permits for construction of new facilities or modifications 

to existing facilities that may emit air contaminants; THSC, 

§382.0511, concerning Permit Consolidation and Amendment, 

which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of 

Existing Facility, which prescribes how the commission will 

evaluate modifications of existing facilities; THSC, §382.0513, 

concerning Permit Conditions, which authorizes the commission 

to establish and enforce permit conditions; THSC, §382.0515, 

concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning 

Preconstruction Permit, which authorizes the commission to 

issue preconstruction permits. The amendments are also 

adopted under Federal Clean Air Act (FCAA), 42 United States 

Code (USC), §§7401 et seq., which requires states to submit 

state implementation plan revisions that specify the manner in 

which the national ambient air quality standard will be achieved 

and maintained within each air quality control region of the state. 

The adopted amendments implement THSC, §§382.002, 

382.011, 382.012, 382.017, 382.051, 382.0511, 382.0512, 

382.0513, 382.0515, and 382.0518, and FCAA, 42 USC, 

§§7401 et seq. 

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 July 27, 2012. 

TRD-201203895 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: August 16, 2012 

Proposal publication date: March 9, 2012 

For further information, please call: (512) 239-2548 

• • • 

SUBCHAPTER C. PLANT-WIDE 

APPLICABILITY LIMITS 

DIVISION I. PLANT-WIDE APPLICABILITY 

LIMITS 

30 TAC §116.180, §116.186 
STATUTORY AUTHORITY 

The amendments are adopted under Texas Water Code (TWC), 

§5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under 

the TWC; TWC, §5.1 03, concerning Rules, which authorizes 

the commission to adopt rules necessary to carry out its powers 

and duties under the TWC; TWC, §5.1 05, concerning General 

Policy, which authorizes the commission by rule to establish 

and approve all general policy of the commission; TWC, §7.02, 

concerning Enforcement Authority, which provides the commission the authority to enforce the statutes under its jurisdiction; 

TWC, §7.301, concerning Definition, which defines terms used 

in Chapter 7, Subchapter G; TWC, §7.302, concerning Grounds 

for Revocation or Suspension of Permit, which provides the 

commission the authority to revoke and suspend or revoke 

and reissue a permit on prescribed grounds after notice and 

hearing; and under Texas Health and Safety Code (THSC), 

§382.017, concerning Rules, which authorizes the commission 

to adopt rules consistent with the policy and purposes of the 

Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, which 

establishes the commission's purpose to safeguard the state's 

air resources, consistent with the protection of public health, 

general welfare, and physical property; THSC, §382.011, 

concerning General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; and THSC, 

§382.012, concerning State Air Control Plan, which authorizes 

the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, 

§382.016, concerning Monitoring Requirements; Examination 

of Records, which authorizes the commission to prescribe 

reasonable requirements for measuring and monitoring the 

emissions of air contaminants from a source or from an activity 

causing or resulting in the emission of air contaminants; THSC, 

§382.021, concerning Sampling Methods and Procedures, 

which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of 

and compliance with the commission's rules; THSC, §382.040, 

concerning Documents; Public Property, which provides that all 

information, documents, and data collected by the commission 

in performing its duties are state property; THSC, §382.051, 

concerning Permitting Authority of Commission; Rules, which 

authorizes the commission to issue permits for construction 

of new facilities or modifications to existing facilities that may 

emit air contaminants; THSC, §382.0511, concerning Permit 

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, 

concerning Modification of Existing Facility, which prescribes 

how the commission will evaluate modifications of existing 

facilities; THSC, §382.0513, concerning Permit Conditions, 

which authorizes the commission to establish and enforce 

permit conditions; THSC, §382.0514, concerning Sampling, 

Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal 

source or facility; THSC, §382.0515, concerning Application for 

Permit, which specifies permit application requirements; and 

THSC, §382.0518, concerning Preconstruction Permit, which 

authorizes the commission to issue preconstruction permits. 

The amendments are also adopted under Federal Clean Air Act 

(FCAA), 42 United States Code (USC), §§7401 et seq., which 

requires states to submit state implementation plan revisions 

that specify the manner in which the national ambient air quality 

standard will be achieved and maintained within each air quality 

control region of the state. 

The adopted amendments implement THSC, §§382.002, 

382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 

382.051' 382.0511' 382.0512, 382.0513, 382.0514, 382.0515, 

and 382.0518, and FCAA, 42 USC, §§7401 et seq. 

§116.180. Applicability. 

(a) The following requirements apply to a plant-wide applicability limit (PAL) permit. 

(1) Only one PAL may be issued for each pollutant at an 

existing major stationary source. 

(2) A PAL permit may include more than one PAL. 

(3) A PAL permit may not cover facilities or emissions 

units at more than one existing major stationary source. 

(4) A PAL permit may be consolidated with a new source 

review permit at the existing major stationary source. 

(5) A PAL pennit can be issued only for an existing major 

stationary source; it may not be issued for a new major stationary source 

as defined in 40 Code of Federal Regulations §5 I.l65(a)(l )(iv)(A) and 

§51.166(b )(l)(i). 

(b) The new owner of a major stationary source shall comply 

with § 116.11 0( e) of this title (relating to Applicability), provided that 

all facilities, or emissions units at a major stationary source, covered 

by a PAL permit change ownership at the same time and to the same 

person, or both the new owner and existing permit holder must obtain 

a PAL permit alteration allocating the emission prior to the transfer of 

the pennit by the commission. After the sale of a facility, or emissions 

unit at a major stationary source, but prior to the transfer of a permit 

requiring a permit alteration, the original PAL permit holder remains 

responsible for ensuring compliance with the existing PAL permit and 

all rules of the commission. 

(c) The owner of the facility, emissions unit at a major stationary source, group of facilities, or account or the operator of the facility, emissions unit at a major stationary source, group of facilities, or 

account that is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b) of this 

section. 

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 July 27, 2012. 

TRD-201203896 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: August 16, 2012 

Proposal publication date: March 9, 2012 

For further information, please call: (512) 239-2548 

• • • 

CHAPTER285. ON-SITE SEWAGE FACILITIES 

The Texas Commission on Environmental Quality (TCEQ, 

agency, or commission) adopts the amendments to §285.11 

and §285.21; and adopts new §285.38. 

Sections 285.11 and 285.21 are adopted without changes to the 

proposed text as published in the February 24, 2012, issue of the 

Texas Register (37 TexReg 1174) and will not be republished. 

ADOPTED RULES August 10, 2012 37 TexReg 6055 
Livingston, Polk County; TYPE OF FACILITY: individual; RULE 

VIOLATED: 30 TAC §30.5(a), by failing to obtain a required 

occupational license; PENALTY: $175; ENFORCEMENT COORDI~ 

NATOR: Heather Podlipny, (512) 239"2603; REGIONAL OFFICE: 

3870 Eastex Freeway, Beaumont, Texas 77703"1830, (409) 898-3838. 

(26) COMPANY: Monarch Utilities I LP.; DOCKET NUMBER: 

2011-2189-MWD-E; IDENTIFIER: RN102287513; LOCATION: 

Montgomery County; TYPE OF FACILITY: wastewater treatment 

plant; RULE VIOLATED: TWC, §26.121(a)(l), 30 TAC §305.125(4), 

and Texas Pollutant Discharge Elimination System (TPDES) Permit 

Number WQ0012587001, Permit Conditions Number 2.g., by failing to prevent the unauthorized discharge of wastewater from the 

collection system into or adjacent to water in the state; and 30 TAC 

§305.125(1) and (5) and TPDES Permit Number WQ0012587001, 

Operational Requirements Number 4, by failing to maintain adequate 

safeguards to prevent the discharge of untreated or inadequately treated 

wastes during electrical power failures; PENALTY: $25,800; ENFORCEMENT COORDINATOR: Jennifer Graves, (956) 430-6023; 

REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 

77023-1486, (713) 767-3500. 

(27) COMPANY: Najera, Felipe; DOCKET NUMBER: 2012-1445-

AIR-E; IDENTIFIER: RN106104110; LOCATION: Palestine, An· 

derson County; TYPE OF FACILITY: outdoor burning; RULE 

VIOLATED: 30 TAC § 111.20 I, by failing to comply with the outdoor 

burning rules of Texas which state that no person may cause, suffer, 

allow or permit any outdoor burning within the State of Texas, except 

as provided by this subchapter or by orders or permits of the commission; PENALTY: $875; ENFORCEMENT COORDINATOR: Heather 

Podlipny, (512) 239-2603; REGIONAL OFFICE: 2916 Teague Drive, 

Tyler, Texas 75701-3734, (903) 535-5100. 

(28) COMPANY: Tommy Haltom; DOCKET NUMBER: 2012-

0409-AIR-E; IDENTIFIER: RN105818843; LOCATION: Marshall, 

Harrison County; TYPE OF FACILITY: air curtain incinerator; RULE 

VIOLATED: 30 TAC §112.143(4) and §122.146(1) and (2), Texas 

Health and Safety Code, §382.085(b), Federal Operating Permit 

Number 03241/General Operating Permit Number 518, Terms and 

Conditions (b)(3)(D)(i) and (ii), by failing to submit an Annual Compliance Certification within 30 days after the end of the certification 

period; PENALTY: $2,000; ENFORCEMENT COORDINATOR: 

Audra Benoit, (409) 899-8799; REGIONAL OFFICE: 2916 Teague 

Drive, Tyler, Texas 75701-3734, (903) 535-5100. 

(29) COMPANY: Tyler Pounds Regional Airport; DOCKET NUMBER: 2012-1488-WQ-E; IDENTIFIER: RN103183695; LOCATION: 

Tyler, Smith County; TYPE OF FACILITY: airport; RULE VIOLATED: 30 TAC §281.25(a)(4), by failing to obtain a Multi-Sector 

General Permit (stormwater); PENALTY: $875; ENFORCEMENT 

COORDINATOR: Harvey Wilson, (512) 239-0321; REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3734, (903) 535"5100. 

(30) COMPANY: Victoria County Water Control and Improvement 

District Number 2; DOCKET NUMBER: 2012-0913-MWD-E; IDENTIFIER: RN10161233l; LOCATION: Placedo, Victoria County; 

TYPE OF FACILITY: wastewater treatment plant; RULE VIOLATED: 30 TAC §305.125(1) and (17) and §319.7(d) and Texas 

Pollutant Discharge Elimination System (TPDES) Permit Number 

WQOOI2743001, Monitoring and Reporting Requirements Number 

1, by failing to submit the discharge monitoring reports for the 

monitoring periods ending January, 2011 - December 31, 2011, by 

the 20th day of the following month; 30 TAC §305.125(1) and (17) 

and TPDES Permit Number WQ0012743001, Sludge Provisions, by 

failing to submit a complete sludge report for the monitoring period 

ending July 31, 2011; and 30 TAC §205.6 and TWC §5.702, by failing 

to pay outstanding public health service fees for TCEQ Financial 

Account Number 92350006 for the 2012 fiscal year; PENALTY: 

$18,360; ENFORCEMENT COORDINATOR: Jennifer Graves, (956) 

430-6023; REGIONAL OFFICE: 6300 Ocean Drive, Suite 1200, 

Corpus Christi, Texas 78412-5503, (361) 825-3100. 

TRD-201204272 

Kathleen C. Decker 

Director, Litigation Division 

Texas Commission on Environmental Quality 

Filed: August 14, 2012 

• • 

Correction of Error 

• 

The Texas Commission on Environmental Quality (TCEQ) adopted 

amendments to 30 TAC §§116.12, 116.150, 116.151, 116.180, and 

116.186, concerning Control of Air Pollution by Permits for New Construction or Modification, in the August I 0, 2012, issue of the Texas 

Register (37 TexReg 6049). An error occurs in the rule preamble on 

page 6049, second colunm, third line from the bottom. The date "May 

4, 2012" is wrong. The correct date is "May 3, 2012". 

The corrected sentence reads as follows: 

"In addition to this rulemaking, on May 3, 2012, the executive director provided a letter, at the request of EPA Region 6, which contained 

additional information .... " 

TRD-201204267 

• • • 

Enforcement Orders 

An agreed order was entered regarding Sugartree, Inc., Docket No. 

2011-1921-WR-E on July 27, 2012 assessing $1,500 in administrative 

penalties with $300 deferred. 

Information concerning any aspect of this order may be obtained 

by contacting Heather Brister, Enforcement Coordinator at (254) 

761-3034, Texas Commission on Environmental Quality, P.O. Box 

13087, Austin, Texas 78711-3087. 

An agreed order was entered regarding Naomi Hagerman dba tOOth 

Meridian Stop, Docket No. 2011-2153-PST-E on July 27, 2012 assessing $6,230 in administrative penalties with $1,246 deferred. 

Information concerning any aspect of this order may be obtained by 

contacting Clinton Sims, Enforcement Coordinator at (512) 239-6933, 

Texas Commission on Environmental Quality, P.O. Box 13087, Austin, 

Texas 78711-3087. 

An agreed order was entered regarding Aksons Enterprise, Inc. dba 

Yonkers, Docket No. 2011-2255-PST-E on July 27, 2012 assessing 

$2,500 in administrative penalties with $500 deferred. 

Information concerning any aspect of this order may be obtained by 

contacting Stephen Thompson, Enforcement Coordinator at (512) 239-

2558, Texas Commission on Environmental Quality, P.O. Box 13087, 

Austin, Texas 78711-3087. 

An agreed order was entered regarding Johan Gerrit Koke dba Blue 

Jay Dairy, Docket No. 2011-2270-AGR-E on July 27, 2012 assessing 

$4,480 in administrative penalties with $896 deferred. 

Information concerning any aspect of this order may be obtained 

by contacting Heather Brister, Enforcement Coordinator at (254) 

761-3034, Texas Commission on Environmental Quality, P.O. Box 

13087, Austin, Texas 78711-3087. 

IN ADDITION August 24, 2012 37 TexReg 6799