TNRCCGENVIROMETITAL Fax :512-239-0606 Nov S 2001 17 :13 P.02

SUPPLEMENT TO1 .993,1996, and 1998 STATEMENTS OF LEGAL AUTHORITY FOR TEXAS'S FEDERAL CLEANAIRACT TITL E VOPERATING pER1VIIT PROGRAM State of Texas Office of theAttorney General INTRODUCTION This is the fimal statement of the Attorney General ofTexas concerning Texas's authority to carry out its state programto implement a federal Clean Air Act Title Voperating permit program in accordance with Part 70 ofTitle 40, Code of Federal Regulations (40 C .F .R .) . The program will be referred to hereinafter as the Part 70 Operating Permit Program I The formof this statement is based on the United States Environmental Protection Agency's (BPA's) Title YModel Attorney General Opinion of June 1, 1993? The Texas Natural Resource Conservation Commission (TNRCC or Commission) has submitted three previous Attorney General statements to certify authorities required for its Part 70 Operating Permit Program . The TNRCCsubmitted the first of these on November 12, 1993 (the 1993 Statement) . Acopy of it is attached hereto as Attachment A . The 1993 Statement comprehensively covered the requirements for certification listed in 40 C .F.R section 70

.4(b)(3) and was also based on the model EPATitle V

certification document . The two additional Attorney General staternents addressed specific issues raised by the EPA and revised the 1993 Statement for subsequent modifications to Texas's Part 70 Operating Pemit Prograrn.3 The TNRCCsubmitted the first of 

### 'Title V ofthe federal Clean Air Act is codified at 42 U .S.C. §§ 7661-7661f. 2The F .1'A model opinion is organized into sections for each area of certification. Each section in this Supplement document begins with a statement ofauthority based on the EPA model opinion

. 3Socfioa 70_4(i)(2>(i) *F40 C .F .R . rcqviires a s;tste to submit a modiried Attorney General statement if it revises its operating permit regulations.TIVRCCErK1IROMENTAL Fax :512-239-0606 Nov 5 2001 17 :13 P.03

. these on May 6, 1996 (the 1996 Statement) . Acopy of it is attached hereto as Attachment D . It includes a letter of commitment by the Commission's Executive Director and Gcoeral Counsel, The TNRCCsubmitted the second additional Attomey General statement on August 6, 1998 (the 1998 Statement) as a supplement to the 1993 and 1996 Statements. Acopy of it is attached hereto as Attachment C . 

### This statement itmcoxporates the contents ofthe earlier statements and does zDot repeat the entire contents ofthe 1993, 1996, or 1998 Statements but instead notes whether legislative or regulatory changes mandate revision of those statements' analyses . STATEMENT OF THE ATTORNEY GENERAL As the Attorney General of the State ofTexas, in accordance with section ,502(d) of the federal Clean Air Act (CAA) as amended and EPA regulations,' I certify that the laws ofthe State ofTexas, including the Texas Clean AirAct (TCAA), Texas Health and Safety Code Chapter 382, provide adequate authority to carry out all aspects of the programsubmitted on June 1, 2001, by the TNRCCto the EPA for final approval to administer and enforce Texas's Part 70 Operating Permit Program as required by Title V

of the CAA

. The State's Part 70 Operating Permit Program has been previously subjWfted and lnterimly approved by the EPA . On August 23, 1993, thc TNRCC adopted its initial Part 70 Operating Permit Program regulations in 30 Texas Administrative Code (T.A.C .) Chapter 122,

°42 U .S .C. § 7661a(d) ; 40 C .F.ZZ. § 70.4(b)(3) .

2TN2CCENVIROMENTRL Fax =512-239-0606 Nov 5 2001 17 :13 P-04

Federal Operating Permitss On September 17, 1993, and in two supplemental documents the TNRCCsubmitted its proposed Part 70 Operating Permit Program to the EPA

.6 On June 25, 1996, the EPApromulgated its first interim approval of the program . The EPA noted continuing deficiencies in the program aud called for their correction prior to full program approval .' On October 15, 107, the Commission adopted revisioaas to 30T.A.C . Chapter 122 in part to address some of the deficiencies noted by the EPAin its prior notices .' On three occasions the EPAhas extended its interimapproval ofTexas's Part 70Operating Permit Program . On August 29, 1997, the EPA extended the interimapproval of the program until October 1, 1998.9 Again, on July 27, 1998, the EPA extended the interim approval to June l, 2000_'o On February 14, 2000, the EPA published another extension that would have extended interimprogram approval to June 1, 2002.' 1 On March 29, 2000, however, the EPApublished a witlxdrawal of the February 14, 2000, extension based on an adverse comment that the extension was contrary to the exp

SSee 18 Tex. Reg

. 5989 (1993) . 60n June 7,1995, EPApublished a proposal to give the Commission's programinterim approval . 60 Fed

. Reg . 30,037 (1995) . In that proposal, the EPA noted several deficiencies that would require corroction prior to the Commission's obtaining both interim and full program approval . The Commission responded in a letter dated October 3, 1995. 'See 61 Fed Reg

. 32,693 (1996) . aSee 22 Tex, Reg

. 10,677 (1997)(codified as amendment to 30 T .A.C. Chapter 122) . 962 Fed . Reg . 45,732 (1997) . 1063 Fed . Reg. 40,053 (1998) . 1165 Fed . Reg. 7290 (2000)_- . Fax =512-239--060G Nov 5 2001 17 :13 P.05



### provisions ofthe CAA

." Subsequently, on May 22, 2000, the EPA published notice that a11 states with interimapproval would havc until June 1, 2001, to submit a programfor full program approval and that the EPAwould take action on those submittals by December 1, 2001 ." 

### Pumant to 40 C

.F.R . section 70

.4(3), the Attorney General is to certify that the laws of Texas provide adequate legal authority for Texas to carry out all aspects ofits submitted Part 70 Operating Permit Program in accordance with the requirements of Title Vof the CAAand 40 

### C.F.R Part 70

. Each enumerated requirement is listed below in its own section with the specific requirement restated fromthe EPA Model Opinion. 1<. AUTHORITY TOMUE PERMITS" 

### State law provides authority for the TN1tCC to issue operating permits to all air pollution sour= within the State that are required to have permits pursuant to CAAsection 502(a), Title 

### 42, United States Code (42 U .S.C .) section 7661a(a), and 40 C.F.R section 70 .3 and to incorporate into permits and assure compliance with each applicable requirement of the CAA and the requirements of 40 C .F .R. Put 70

. State law

also provides authority to issue operating permits for solid waste incineration units combusting municipal solid waste pursuant to CAA section 129(e), 42 U

.S .C. section 7429(e), that assure compliance with all applicable requirements of the CAAand the requirements of 40 C .F.R . Part 70 .



### `265 Fed. Reg. 16,523 (2000) . 1365 Fed . Reg. 32,035 (2000) . "This heading, like each other heading below that begins with a roman numeral, cross- refers to a section in the 1993 Statement with the same heading . 4TP62CCiEPNIROhENTAL Fax :512-239-0606 Nov F 2001 17 :13 P.06



### Federal Authority, CAA §§ 129(e), 502(a)-(b), 503, 504(a) (42 U .S .C. §§ 7429(e), 7661a(a)-(b), 7661b, 7661 c(a)) . 40 C .F.R. §§ 70.4(bx3)(i), 70 .4(bX3Xiv), 70.4(bX3)(v), 70 .5(a), 70 .6, 70.7(b) . C~~tation of State Laws and Regiilations~ TEx . HBAL'lH &

SAP$rr CODE §§ 382

.051,382.0513,382

.0514,382-054,3810541, 382 .0543, 382.056, 382

.0561, 382.0562, 382

.0563, 382.0564

. Tl?x. WATex CoDB § 7

.302 (replaces former TEx Hr.ALTH & SAFI~rx CODE § 382

.059 (repealed)) . 

### 30 TAX . Chapter 122. The analysis in this section is unchanged except fox a change to the scope of the applicable requirements covered by the State's Part 70 Operating Permit Program . As discussed in Section VIII below, in 2001 the TNRCC amended its definition of applicable requirement in 30 T,A, .C

. Chapter 122 to be consistent with 40 CYJZ- Pan 70 . 

### II . AUTHORl(Ty TOISSUE PERMITS TO NONCOMPLXING SOURCES State law

provides authority for the ; ZNRCCto issue pemits to sources dW are not in compliance with applicable requireaaaents and to includc complianoe schodulcs in pernnits to bring sources into compliance. Federal Authori : 

### CAA §§ 502(bx5)(A), 504(a) (42 U .S.C . §§ 7661a(bx5)(A), 7661c(a)) . 40 C .F .R . §§ 70 .5(c)(8), 70.6(c)(3) .TNRCC/ENIIROMENTfL Fax :512-239-0606 Nov r- 2001 17 :13 P . 07

Ctation ofState Laws and Reptilations TEJC" HEALTH &SAkM CODE § 382.051(c), . 30 T .A .C . §§ 122.132(e), 122.142(e) . 

### The analysis in this section is not changed. HI . PERMIT AGENCY MEMBERSHIP ANDCONFLICTS OF INTEXtEST State law

provides that no State board or body that approves operatift permits, either in the first instance ox upon appeal, sW1 be constituted of less than a majority of membe,m who represent the public interest and who do not derive a significant portion of their imoome firom persons subject to operating permits. State law also provides that any potential conflicts of interest by meu*ers ofsach board or body or the bead of any executive agency With Similar 

### powers be adequately disclosed. State law also provides that no pennzit for a solid waste incinerafion unit may be issued by an agency, inshumentality or person that is also responsible, in whole or in part, for the design and construction or operation ofthe unit. Federal Aghotrilyz CAA §§ 128(a)(1)-(2), 129(e) (42 U .S.C . §§ 7428(ax1)-(2), 7429(e)) . 40 C.F1L § 70

.4(bx3)(iv),

lation 1)3X WATER CODE § 5

.052(a), 5

.053, 5 .059 . 7)1x . HEALTH &

SAFETY CODE § 382.0591(b) . TEx . Gov'T CoDB, Chapter 572 . 

### The analysis in this Section is unchanged.TNRCCiEhRJIROf4=NTAL Fax :512-239-0606 Nov 5 2001 17 :13 P.08



### TV . PERMYT FEES

. State law

provides authority for the TNRCCto assess and collect annual pernlit few from sources within the State that are subject to the requirements ofTitle Vof the CAAand 40 C .F.R . Part 70, in an amount sufficient to cover all reasonable direct and indirect costs required to develop, administer, and enforce the State's Title Vprogram . . Fed.,Anthoribu CAA § 502(bx3XA) (42 U .S .C . § 7661a(bx3xA)), 40 C .F.R . §§ 70 .9(a)-(d) . Citation ofState Laws and 12 ations: 

## Tr .x. HEALTH&SAFETYConE §§ 382 .0621, 3s2.0622(b)-(c) . 30T .A.C . § 101 .27

. 

### 30T.A.C . § 122.143(10) : The analysis in this section is not changed. V . PERM'1' TERM State law

generally provides authority to issue operating permits for a fixed termnot to exceed five years. State law also provides authority to issue permits with acid rain provisions for a fixed tmn offive ye= . 

### 1~'edcral A,uthorit]L 

# CAA§§ 129(e), 408(a), 

### s02(bXS)(B) (42 U .S.C. §g 7429(c), 7651g(a), 7661a(bXs)(13)) . 

## 40 CAP- § § 70.4(b)(3Xi), 70.6(a)(2), 72-70(b), 72.72(g)-TNRCC/ENVIRO~NTRL Fax :512-239-0606 Nov S 2001 17 :13 P . 09

Citation of State IA~,ys and Re ations ")~X" HEALTH 8C SAFMT COvt ; §§ 382 .0541 (.X5), (12),382.0543(a) . 30T .A .C . §§ 122.143(2),122

.201(d), 122

.241,122.410

. 

### TIte analysis in this section is not changed. MONITOMG, RECORDKEEpING, AND REPORTING State law

provides authority to incorporate monito,ning, reOoWkecpin& reporau& and compliance certification zequirememts into opetVing permits consistent with 40 C .1~.R . section 70 .6 . State law

provides authority to incorporate into the permit periodic monitoring or testing requirements where tb,e existing State Implanentation Plan or other applicable requirement does not contain such a requirement, consistent with 40 C .F' .R . section 70

.6(ax3)(i)(B) . Fed" Anthoritv~



### .. ., .._ 

## CAA §§ 502(bX2), s03(bXZ), Sa4(a)-(C) (42 u .S.C . §§ 766ia(bX2), 7661b(bX2), 7661c(a)-(e)) . 40 C .1~ - §§ 70.4(b)(3xii), 70.6(a)(3), 70 .6(c)(1), 70.6(cx5) . Citation ofState

jaws and Regulations : TEX' REAL'1H& SAFMCoDLz §§ 382.016, 382.021, 382.0514 . 3o T .A .C . §§ 122 .140, 122.142(0), (h), 122 .144, 122.145, 122

.146, 122.600, 122

.602, 122.604, 122.606, 122.608, 122 .610, 122.612, 122,700, 122-702, 122 .704, 122.706, 122.708, 122 .710, 122.712, 122.714, 122.716.



### . 30 T.A.C. §§ 101 .8, 101 .9 . 1'he analysis in this section is not changed .TNRCCENVIROMENTAL Fax :512-239-0606 Nov 5 2001 17 :14 P .10

VII . INSPEC'TION/ENTR`Y' AUTHORITY 

### State law provides authority to incorporate into pezmits inspection and entry requirements consistent with 40 C

.F.R . section 70

.6(cK2) .

. Federal Aptgn CAA§ 504(c) (42 U

.S.C . §7661c(c)) . 

# 40 C .F.x. § 70 .6(c)(2) . . Citati o Statc Laws and Re ations : 

### TEX. HEALTH &SnFE'ry CODE §§ 382.015, 382.022 . 30T.A.C . §§ 122,143(3) .(g),122.144 . no analysis in this section is not changed. . V III- INCORPORATION OF ALL APPI .ICAgx,E ItEQU1KE1M1 :, N'1'S I1VT0 pV ,RMl'r State law

provides authority to incorporate into an operating permit, upon issua=e or renewal, all applicable requirements as defined in 40 C .F.R section 70

.2 and as provided generally in the CAAand 40 C .F.R . Part 70 . Federa l~

, otit . 

### CAA §§ 

## 502rox5xC), 504(a) (42 U .S .C . § § 7661 a(bx5)(C), 7661c(a))- 

## 4 .0 CY .lz . §§ 70.4rox3Xv), 7O

.s(a) . Citation ofState Laws d Re ions : TBX HEALTH &SAFM CODE §§ 382

.0541, 382

.0542, 382.05

.43. 30 T .A.C . §§ 122.10(2),122,131 .R 122.132, 122.136, 122.142,122.201(a), 122 .231, 122231(a),122.241 . The analysis in this section is changed as follows. 9TNRCC/ENUIROMENTAL Fax :512-239-0606 Nov 1- 2001 17 :14 P.11

Section 70

.4(b)(3xv) requires State programs to `Sincoriporate into permits all applicable requirements and requirements of this part ." In the 1993 Statement, this section discussed whether or not a state's minor new source review

permitting program

(State Minor NSR) is an applicable requirement that must be included in an operating permit . Is AS discussed previously, in 1996 the EPAiuoEteriunly approved Texas's Part 70 Operating Permit Program without State Minor NSR included as an applicable requirementOn June 3, 2001, the Commission's final revisions to 30 T .A .C . Chapter 122 took effect 16 1'hese revisions modified the, definition of applicable requirement to include State Mnor NSR'7 Applicable requirements of the submitted programnow include all of the luajor and minor new

source reviewrequirements of 30 TA-C . Chapter 116, Control ofAir Pollution by Permits for New

Construction or Modification, and 30 T.A.C . Chapter 106, Permits by Rule . The revised rules provide the procedures for incorporating State Minor NSR into existing Pamits and pending perniit applications. Pu;rsuant to 30 T.A .C . section 122

.142(bX3), if the TNRCCdid not authorize the initiation ofpublic notice for an operating permit by June 3, 2001, the issued permit must include all required preconslruction authorizations, including State Minor NSR Permits for which the TNRCCdid authorize the initiation of public notice by June 3, 'sIn the June 7, 1995

. EPA notice and later in theJune 25, 1996, EPA notice, EPAnoted that the 1993 version of 30 T .A, .C . Chapter 122 did not properly address State Minor NSRas an applicable requirement. Furthermore, the EPA, has stated ita both theJune 7, 1995, andJune 25, 1996, EPA notices that the State Minor NSRissue must be addressed in order for the Commission to gain full programapproval . 1`26 Tex. Reg

. 3791-3807 (2001) . 1'26 Tex. Reg

. at 3792. 10TNRCC/ENIIROh1=NTRL Fax :512-239-0606 Nov c '>001 17 :14 P.12



### 2001, will not include State Minor NSR at initial issuance. However, piusaant to 30 T.A.C . section 122.231, the TNRCCwill institute proceedings to reopen previously issued operating permits to incorporate the excluded State Mmor NSRpermits, as soon as practicable, but no later than permit renewal . DL PERMrr REOPENING State law

provides authority to revise permits with remaining terms of three or more years to incorporate new

applicable requirements that become effective after issuance of the permit . State law

Provides authority to reopen pertuits when additional acid rain requirements become applicable, regardless of the remaining permit term . State law

provides authority to terminate, modify, or revoke permits for cause at any time during the permit termconsistent with 40 C .F.R . section 70

.7(JD-(g) . kederal Authority

: 

## CAA§§ s02(bx5)(b), (bx9) (42 u .S.C. §§ 7s61a(b)(5)(n)a (rox9))- 40 C .F.R . §§ 70 .4ft3xvi), 7o.6(a)(6)(ui), 7o.7(t)-(g) . Citation of State Laws and RWlations; TEx. HEALTH &

SnPs7ry CODE §§ 382.0541(b), 382.0541(ax7), 382 .0542(bx4) . Ttr.x. WwnM

CoDE § 7.302- 30 T.A.C

. §§ 122.143(7)-(8),122 .231, 122

.414(a}(4) . The analysis in this section is not changed. 

### X . OPERATIONAL FLEMBILITY State law

provides authority to issue permits that allow changes within a permitted facility without requiring a permit revision if the changes are not modifications under any 11TPI2CCENVIROMEIVTAL Fax :512-239-0606 Nov S 2001 117 :14 P.13

provision ofTitle I of the CAA and the changes do not exceed the emissions allowable under the permit, provided that the source provides at least seven days (or fewer days if the State requires less time in an emergency) written notice to the State and to EPA . State law

provides authority for permits to include terms and conditions for reasonably anticipated alternative operating scenarios in permits. . 

### Federal Authoritv: CAA § 502(bx10) (42 U

.S.C . § 7661a(b)(10)) . . 

## 40 C .F.zt, §§ 70 .4(bx)2), 70 .6(ax9) . Citation of State Laws and Regulation-s : 

### TEX .1;IEALTH &SAFMT CODE §§ 3$2.0511(c), 382.0541(a)(3xA) . 30 T.A .C . § 122,222

. The analysis in this section has changed as follows. In the June 7, 1995, EPAnotice, EPAstated that the operational flexibility section of 30 T .A_C . Chapter 122, as snbmitted in 1993, was inconsistent with 40 C .F.R . section 70

.4(b)(12) and CAAsection 502(bx10), 42 U .S .C. section 7661a(bx10), because it c;ould potentially allow modifications that violate what EPA considm

applicable requirements.13 In addition, in theJune 25, 19%, EPA notice, EPA . stated that for Texas to recezve full approval, 30 T .A .C . C,liapter 122 must be consistent with the 

### version of 40 C

.F_lt. Part 70 in effect at the time offall programsubmittal . 19 In 1997, the Commission deleted the operational #lexibility rules in 30 T.A .C . Chapter 122, in response to an "See 60 Fed. Reg

. 30,044 (1995) 

### a9See 61 Ped. Reg_ 32,696 (1996) . 12TNRCC/ENVIROMENTAL Fax :512-239-0606 Nov 5 2001 17 :14 P . 14 August 31, 1995, . EPArule proposal, in which EPA proposed to delete the dejanition of "Section 502(bx10) changes" &om 40 C .F.R section 70.2 and to delete the reference to "Section 502(bx10) changes" in 40 C .F.R . section 70_4(b)(12) . The August 31, 1995, proposal, however, was not finally promulgated, so the Commission revised 30T .A.C. Chapter 122 in 2001 to be consistent with provisions in 40 C .F.R, section 70.4(b)(12) . 

### PERMIT MODIFICATIONS State law

provides authority to process permit modifications in a manner t1aat conforms to, or is substantially equivalent to, the procedures set forth under ,40 C .F.R . section 70

.7(e) . Federal Authority

: CAA § 502(bX6) (42 U .S .C. § 7661a(bx6)) . 40C .F.R §§ 70

.4(bx13), 70.1(e) . 

### 0tation ofState Laws d R lations : TEx. HEALTH &SAFEw CoDIE §§ 382.051(a), 382.056, 382 .0561, 382.0562, 382.0563. 30 T .A .C, §§ 122

.210, 122.215-122.218, 122.219, 122.221,122.312, 122.320, 122 .330, 122 .322,122.340,122.3451-122-350,122,360. The analysis in this section is unchanged except to note that 2001 revisions to 30 TA-C . Chapter 122 significsntly rcriscd the Permit revision proccss to bc consistent with 40 CX .R . section 70

.7. 

### XIL PUBLIC PARTICIPATION State law

provides authority for procedures to allow public Participation in the TNRCCs action to issue or deny an operating permit, to modify a permit (except . as provided in sections 70 .7(ex2) and (3)), or to renew a permit . Public participation under State lawincludes the

13TNRCC/EMJIROMENTAL Fax :512-239-0606 Nov S 2001 17 :14 P.15



### opportunity for public comment and the opportunity for a hearing on draft permits in accordance with the requirements of the CAA and 40 C .F.R. section 70.7(h) . State law provides for affected states to review

permit applications in accordance with the CAAand 40 C .F.R . section 70

.8(b) . Federal Authority-. 

## CAA §§ 502(bX6), 505(ax2) (42 u.s.c. §§ 7661a(b)(6), 766Ya(a)(2)) . 40C .F-R- § § 70

.7(h), 70.8(b) . Citation of State Laws and Regulations : TEx . Ha.+LTH &

SarM ConB §§ 382.056, 382.0561, 382.0562, 382.0563, 382 .0564 . 30 T .A.C. §§ 122.312, 122.320, 122 .330, 122.322, 122_340, 122.345, 122 .350, 122.360

. The analysis in this section is unchanged except as follows. Recent Texas legislation revised thc requirements in TCAA section 382 .056, concerning public notice for operating permits.2° The legislation expanded the information that a notice must contain, to include intformation about availability of documents regarding the permit application.

_ MIL PUBLICACCESS TOPERNUT INFORMATION State law

provides authority to make available to the public any permit application, compliance plan, permit, and monitoring and compliance certification report, except for information entitlcd to confdcntial treatment . Statts law provides that the contents of an operating permit shall not bc entitled to confidential treatment .

2°Act of May 30, 1999, 76th Leg., RS ., Ch. 1350,19" Tex. Gren Laws 4570 . 14ThtzCCiENVIROMENTAL Fax :512-239-0606 Nov r- 2001 17 :14 P.16

Federal Authoritv: CAA §§ 114(c), 502(b)(8), 503(e) (42 U .S .C . §§ 7414(c), 7661a(6)(8), 7661b(e)) . 40 C .F.IZ. § 70

.4{bx3)(viii) . Citation ofState ,Laws and ReguIations: 

## TEx. HEALTH&SAFM'Y CODE §§ 382.040, 382 .04i . 30T .A .C . §§ 122.143(8), 122.320(g) . 

### 30 TA .C . § 1 .5(d) . The analysis in this section is unchanged except as follows. Recent Texas legislation revised the requirements in TCAA section 382 .056 concerning public notice for operating permits.21 Anewspaper notice for an operating permit must now include information regarding the location at which a copy of the application is available for public review and copying

; a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application; and the time and location of any public meeting to be held concerning the application. These requirements are in addition to those required by 40 C

.F.R . Part 70 . On April 14, 2000, the Commission and the EPA entered into a memorandum of agreement regarding the transm~ission ofconfidcutial information to tho EPA . The EPA agreed to adliere to the provisions of TCAA section 382.041 and federal law regarding claims of confidentiality

. A copy of the memorandum of agreement is attached hereto as Attachment D .

"Act of May 30,1999, 76th Leg, RS ., Ch- 1350, 1999 Tex. Gen Laws 4570 . 15TNRCC/ENVIROPENTfL Fax :512-239-0606 Nov r- 2001 117 :14 P.17

VV . ]ENFORCEMENT OF PERMIT PROGRAM REQUIREMENTS State law

provides civil and criminal enforcement autbority consistent with 40 C,F,R, . section 70

.11, including authority to recoyez penalties in a maximum amount of not less than $10,000per day per violation. 

### EO-eW Authority: CAA . § S02(bx5)(E) (42 U

.S .C . § 7661a(bx5)(E)) . 40 C .F.R . §§ 70.4(b)(3)(vii), 70

.11 . 

### Citation ofState Laws and ReQnlations TEx. WAnx CoDE §§ 5.501,5.514,7.002,7.032,7.051-7 .068,7.075,7.102.7.105, 7.106, 7.110, 7.141, 7.177-7.183, 7.186-7.188, 7.202, 7.251-7 .252 . 'lVac. HEALTH &SaFBTr CODE §§ 382.0518,382-0519 . The analysis in this section is unchanged except as follows. .

fate $nforcernertt Provisions - The Legislature revised the State's statutory authority for enforcement under the TCAA in 1997, by consolidating many enforcement provisions into Chapter 7 of the Texas Water Code.' Achart showing the disposition of the old TCAA enforcement provisions is included in the TNRCC's June 1, 2001, submittal to thc EPA, "Section 1.,i- Additional Elements Section ." Modifications to 30 T

.A .Ljaapter 122 in its draft comments to the 1997 revisions to 30 T .A.C. Chapter 122, EPAobjected to the reference to requirements that have been promulgated by EPAbut not adopted by and 22Act of May 28, 1997, 75* Leg ., 1Z.S ., ch. 1072, § 2, 1997 Tex. Gen . Laws 4094, 4099- 4126 (codified at TEx

. WATFt Cp1)F, §§ 7.01 et seq . ) . 

### 16TNRCCENVIROMENTfl- Fax :512-239-0606 Nov 5 2001 17 :14 P.18

delegated to the State as "fedexally enforoeable only ." The TNRCCin its 2001 revisions to 30 T .A.C . Chapter 122 deleted the reference to "federally enforceable only" in 30 T .A .C. section 122.10(2)(K) . The TNRCCmade this change since Part 70 does not define this term nor embody this concept. Notwithstanding this amendment, the arWysis provided in the 1998 Statement concerning this issue is unchanged . M odifications to 12ents for State Grandfathered Facilities 

### The Legislature modified air pennit requirements for State grandfatheaed facilities during the 1999 and 2001 legislative sessions . Under TCAA section 382 .0518(g), a facility is 

### grandfathered, i .e., not required to have a State preconstructdon permit if the facility was built (including newly constructed, altered, modified, or added-to) on or before August 30, 1971, and has not been modified since then in a manner requiring new source review

.23 The rationale for graadfathering was that it would not have made sense to apply a Statepreconstruction permit 

### mandate to facilities that already had been constructed when the requirement was added to the lacv.24

23TEx

. HPAt-'rFlt &SAmy CoDE § 382.0518(g) . State grandfathered facilities also include facilities on which construction, though not complete on or before August 30,1971, began by then, or was contracted for by then and began within six months thereafter . To achieve and mantaw

grandfathered status, companies had to comply with the requirements ofTCAA section 382.060, as it formerly existed That provision required registration ofgrttndfathered facilities with the TNIZCC's predecessor agency and payment of any fees set by agency rule. "'Facilities may also be grandfathered from federal permit requirements. See, e.g ., CAA § 165 (42 U

.S . C- § 7475(a)) (exempting facilities existing on or before August 7, 1977, and unmodified since that date, fromprevention of significant deterioration permit requirements) ; 30 MAX . § 116.150 (exempting Texas facilities with submitted permit applications on or before November 15, 1992, and unmodified since that date, fromnonattainment new source review requirements) . 

# Z Y 17TNRCCENVIRDhENTAL Fax :512-239-0606 Nov S 2001 17 :15 P.19

In 1999 in Senate Bill 766, the 76'' Legislature created a program for an owner or operator of a State grandfathered facility to request, pursnatt to now TCAA section 382.0519, a votuntazy emission reduction perlnit (VERP)?$ If a State grandfathered facility applied for a VERPon or before August 31, 2001, Section 12 of Senate Bi11766 (Section 12) prevents the TNRCCfrominitiating an enforcement action against the facility's owner or operator for modifications constructed on or before March 1, 1999, that would have required a TCAAsection 382 .0518 perniit26 Section 382.0518 ofthe TCAA applies only to State preconsteuctiou permits, commonly refen-ed to by the EPA as "State Minor NSR" pemaits. r In 2001, the 77' Legislatuze instituted a gradual phase-ouut of the State 

### grandfather exemption by passing certain new permit requiretnentsY Pnrsmt to new TCAA section 

### 382.05181 a State grandfathered facility that has no pending application for a permit under the TCAA . (other than an application for a Part 70opMfing permit) or has not submuicted a notice of shutdown under new

'1'CAA section 382.05182 may not exuit air eontaminaats on or after 

### ' September l, 2003, in the East Texas region or on or after September l, 2004, in the West Texas xegion.= ZAct of May 30, 1999, 760" Leg ., 1Z.S., ch. 406, § 5, 1999 Tex. Gem Laws 2626, 2627-28

; see also TEX

. HEALTH &

SwFmy Corm

§ 382.o519

. 

### ZsTEX . HEALTH &SaFETX COVE § 382 .0518 historical note jAct of May 30, 1999, 760' Leg., PM, eh. 406, § 12, 1999 Tex. Gen. Laws 2626, 2632] . "See generally Act ofMay 28, 2001, H .B. 2912, 77* Leg., R.S., ch. 965, § 5.03, 2001 Tex. Sess. Law

Serv. 1825, 1848-51 . nId, at 1848-49

. The East Texas region is defined by TCAA section 382.05 181 as containing a11 counties traversed by or east of Interstate Highway 35 north of San Antonio or traversed by or east of Interstate Highway 37 south of San Atztonio and includes Bexar, Bosque, CoryelI, Hood, Parker, Somervell and Wise counties. The West Texas region includes all 18TNRCCENVIROMENTAL Fax :512-239-0606 Nov 5 2001 17 :15 P-20

Small business stationaxy sources are not subject to tlw deadlines in TCAA section 382.05 181 and may apply for a small business permit under TCAA section 382.05184 before September 1, 2004

. If an application for a permit under the TCAA is not pending by April 30, 2008, or a notice of shutdown has not been submitted, the small business stationary source may not emit air contaminants. Other State grandfathered facilities, such as electric generating facilities and reciprocating internal combustion engines that are part of processing, treating, compression or pumping facilities connected to or part of a gathering or transinissiompipeline, have permitting options specifically for those types offacilities. 

### tion 66 1999 The EPA asked that this opinion include a discussion ofwhetbet- or not the enforcement protection in Section 12 impairs the TNRCC's ability to assure compliance with Part 70 applicable requirements. Section 12 states: (a) The Texas Natwml Resource Conservation Commission may not initiate an enforcement action against a person for the failure to obtain a preconsttuction pernait under Section 382

.0518, Health and Safety Code, or a rule adopted or order issued by the Commission under that section, that is related to the modification of a facility that may emit air contaminants i~ on or before August 31, 2001, the person files an application for a permit for a facility under Section 382.0519, Health and Safety Code, as added by this Act. (b) This section does not apply to an act related to the modification of a facility that occurs after March 1, 1999. Tbx . HEALTH &

SAFETY CODE § 382.0518 historical note [Act of May 30, 1999, 76'b Leg., RS., ch. 406, § 12, 1999 Tex. Gen . Laws 2626, 26321 . counties not in the East Texas region. 

### 191TRCCiEEWIROMENTAL Fax : 512-239-0606 Nov 5 2001 17 : 15 P . 21

Section 12 does not affect the TNRCC's ability to assure cotnpliance with part 70 applicable requirements. Moreover, to the extent Section 12 does affect the enforcement of the State's Minor NSRrequirements, the effect is limited . The intent of the Legislature to strictly limit coverage for Section 12 is shown by direct statements in the statutes and by the structure of the statutes, regulations, and regulatory practices that formed the backdrop for the section's e,taactment.

. ~By its express term the enforcement protection in Section 12 covers only violations of TCA .A . section 382

.0518 for constructing or modifyingwithout a State preconstruction permit . Only a person who in the past has claimed grandfathe,red status under the TCAA is entitled to protection." Protection extends only to owners or operators whose unfulfilled legal obligation to have obtained a preconstruction permit arose because they modified a facility on or before March 1, 1999, and then only if they applied for a VERP on or before August 31, 2001 . Afurther limitation is that Section 12 applies only to State Minor NSRpermits issued pursuant to TCAA section 382.0518 . Pefox+e begmning construction, TCAAsection 382 .4518 requires the owncr or operator of a new facility or a modification to an existing facility that "m$y emit air contaminants" of any type or in any amount to obtain a State Minor NSRpetnmit. There am La"Qonul pr®oonstruction penaxits requirod by the C for ccrtaiua types ofpollutants at specified emission rates-permits Texas now issues under federally approved but state-lawbased programs.3° These federal px+econstruction permit programs include prevention of 

### "See UK HEnr .rr-r &SAFM CODE § 382

.0519 . 3°The State Minor NSRprogram has also been submitted and approved by the EPA as a measure in the State's Implementation Plan to regulate all modification and construction of 20TNRCC/ENVIROMENTRL. Fax :512-239-0606 Nov 5 2001 17 :15 P.22

significant deterioration ("PSD") permits, nonattainment new source review("Nonattainment NSR") permits, and CAAsection 112(g), 42 U .S-C- section 7412(g), permits. 

### Section 12 grants to enforcement protection for the failure to have obtained PSD or Nonattainment NSRpermits prior to construction. It speaks of "an enforcement action against a person for the failure to obtain a pneconstruction permit under Section 382 .0518 _ . . ." This provision does not apply to the failure to get PSD or Nonattainment NSRpermits because the requirement for a facility to obtain a PSDor Nonattaizuao,ent NSR permit is not located in TCAA section 382

.0518, as discussed in the next paragraphs. The requirement to obtain a PSDpermit is located in 30 T .A .C . section 116

.160(a), which incorporates by reference 40 C .F.R section 52.21(')(1)'s requirement_ The statutory authority the TNRCCinvoked in support of adoption was TCAA section 382.017, not the predecessor of TCAAsection 382.0518 . Nor has the agency relied on TCAA section 382 .0518 or any of its Prede,cessors re adopting intervening amendments to what is now 30 T.A.C

. section 116

.160(a) .311 As a result, an enforeerment action by the State for failure to obtain a PSDperm,it would be exclusively for the failure to comply with 30 TA . C . section 116

.160(a) and 40 C

.F .R . section 52.21(ixl) . Section 382.0518 of the TCAA would not be invoked, and therefore the limited cn&rce=ent protection of Section 12 would bc iua,appositc.

sources to assure that national ambient air quality standards are achieved as required by CAA section 110(ax2)(C), 42 U .S .C . section 7410(aX2)(C)- 3130 T.A.C

. section 116

.160(a) was adopted pursuant to Texas Health and Safety Code section 382

.017 and thus is also not "a rule . . . adopted" under TCAA section 382.0518 . See 18 Tex. Reg. 5746, 5765 (1993) . 21TN2CCENVIROht=NTRL Fax =512-239-0606 Nov 5 2001 17 :15 P .23

The requirement to obtain a Nonattainment NSRpermit is located in 30 T .A .C . sections 116 .150 and 116

.151 . Again, when the TN'RCC originally added these sections to its regulations, and when it amended them through the years, the agency did not cite TCAAsection 382 .0518, orany ofits predecessors as authority.3a And, again, an enforcement action for the bAure to carry out nonattainment permit requirements would be an action for failure to comply with one or the other of those sections, not TCAA section 382.0518 . Moreover, the State Minor NSRpermit requirement located in TCAA section 382 .0518 

### has never included the requirement to obtain PSD or Nonattamment NSRper)ni when the Legislature originally passed the predecessor provision ofTCAAsection 382.051833 'and created the State preconstiuction permit requirement, the concepts -federal concepts -of 

### PSD new source review

and nonattainment new

source review

did not exist. The United States Congress did not create PSD and Nonattainment NSRpermits in their modern forms Perforce, the Texas Legislature could not have intended the predecessor ofTCAA section 382.0518 to create requirements with respect to such review . 'Me . 1971 grandfathering date identified in what is now TCAA section 382.0518(g) underscores this point. It would have made no sense for the Texas lawmakers in 1971 to exempt existing facilities firomPSD or `30T .A.C. sections 116.150 and 116 .151 were adopted pursuant to TCAA section 382.017 and thus are also not "rule[s] . . . adopted" under TCAA section 382 .0518 . See 18 Tex. Reg . 5746, 5764 (1993) . "Act of May 26, 1971, 62d Lcg ., R .S., ch. 619, §§ 1-3, 1971 Texas General Laws 2003 (adding § 3

.27 to Tex

. Rev . Civ. Stat . art. 4477-5) . -uSee Clean Air Act Amendments of 1977, Pub. L. No . 95-95, Title I, § § 127(a), 91 Stat . 685, 735 ; id § 129(b), 91 Stat . at 746, 748 . 22TNRCCiENVIROh1ENTfL Fax : 512-239-0606 Nov 5 9001 17 :15 P.24



### Nonattaizitnent NSRwhen no such review was then legally required. Furthermore, PSDand Nonattainment NSRrequirements have not been placed in TCAA section 382

.0518 in the intervening years. As mentioned above, the Legislature has amended and modiffied the requirement to obtain a State Minor NSRpermit many times since 1971 .35 None ofthese legislative acts directly or indirectly required a facility to obtain a PSDor Nonattainment NSRpermit . The text of TCAA section 382 .0518 concerning the requirements for a State Minor NSR Permit fiuther stPPorts the view that the section contains the legal obligation to obtain only a State Minor NSR Permit, not a PSDor Nonattaiiuttent NSRpermit . Subsection 382.0518(b) contains the requirements for approval of a State Minor NSRpermit . In considering the best available control technology for the facility, the agency must take into account technical practicability and economic reasonableness. This cannot apply to Nonattaiment NSR, under which the Permitting suthority-Texas, Pursuant to its approved SIP--wxiaust impose on the facility the lowest achievable emission rate, or I,AER, which is not based on economic reasonableness.36

3sSee Act of May 14, 1979, 66th Leg ., RS., c,h. 726, § 7, 1979 Tex. Gem Laws 1787, 1791 ; Act of May 27, 1985, 69th Leg ., RS., ,h . 637, § 26, 1985 Tex . Gcn . Laws 2350, 2355

; Act of May 28, 1987, 70th Leg ., RS., clt. 793, § 1, 1987 Tex . Gen. I,aws 2783, 2783 ; Act ofMay 16, 1989, 71st Leg

., RS., ch. 678, § 1, 1989Tex. Gm Laws 2230, 2723-24

; Act ofJuly 25, 1991, 72nd Leg-, 1st C

.S., ch- 3, § 2.08, 1991 Tex . Gen, Laws 4, 51-52

. -uSee CAA § 171(a)(3) (42 U .S .C . § 7051(3)) (defining LA .I;R) . Economics of a control strategy considered for LAER are only of concern when determining the strategy's achievability. See Guidance on DetenninizT Lowest Achievable Emission Rate, EPA Director ofAir Quality Mauageuxent Division, John Calgani (February 28, 1989) . 23TPt2CCfENVIROMENTFL Fax :512-239-0606 Nov S 2001 17:15 P.25 Similarly, under subsectf on 382.0518{b)(2) the Commission must engage in health effects review for a State Minor NSRpermit . It must fmd no indication that the emissions from the facility will undermine protection of the public's health and physical property. Health effects reviewis not required for PSD and Nonattaintnent permit reviews. TNRCC's historical permit practice, including the relationship between that practice and EPA's practice, buttress the points made above . Until 1992

, the TNRCCcarried out review of PSDpermit applications, but since Texas did not yet have EPA authorization to issue PSD permits, thc EPAissued PSDpcr~its entirely separate fromTexas State Minor NSRpermits. ~Since authorization ofTexas's program in 1992, the TNRCChas cornbined a Minor NSRpermit ( and a PSDpe

.ntnit in one document, but the document always lists two permit n .umbes, one for the State Minor NSRpermit and another for the PSDpermit . A similar approach is followed with respect to the relatively rare Nonattainment NSRpermits. Section 12 does not relieve an unauthorized grandfathered facility from the requirement to be pmnittod. On the contrary, by applying for and obtaining a VERP - which, is one of the preconditions for Section 12's applicability -the facility will come into the preconshuction permit program, will give up its State grandfathered status, and may have to upgrade its pollution-oontrol tcchnology. Emission reductiorns may rcsult . Tho nowly rovised Texas definition ofapplicable requirements, in 30 T.A .C. section 122

.10, includes VLRPs, so CAA Title Yenforceability will also be ensured.TNRCCiENVIROh1=NTfaL Fax :512-239-0606 Nov 5 2001 17 :16 P.26



### Further, because a TNRCC enforcement action is not initiated under Texas law until the Executive Director serves an administrative petition seeking enforcement against the violator,3' the TN'RCC will be able to investigate and document any past unauthorized modification, even though initiation of enforcement may be barred against an owner or operator who meets all of 

### Section 12's criteria The TTTRCCcould use such a modification in advocating enhanced penalties in a future action for enforcement with respect to other kinds ofviolations. State Mlnor NSIt Not Part of Q :rrcntlv Approved Title VPrng, ~,,p Setting aside the limitations discussed above, Section 12 has no effect on the certification heroin because it protects fromenforcement only those violations that occurred before State Minor NSRwas included in the State's Part 70Operating Permit Program . Texas is currently operating its program

P=mt to the EPA's interimapproval givenJune 25, 1996. At the time of interimapproval, Texas did not include State Minor NSRin its Part 70 source definition regulations in 30 T

.A .C . Chapter 122

. EPA noted the non-inclusion ofState Minor NSRand set forth conditions for Texas Part 70 operating permits to explicitly state that State Minor NSRwas

3'Yt is the practice of the TNRCCExecutive Director to conduct inspections and, upon discovery of a potential enforcement situation, to issue a notice ofviolation (NOV) . The issuance of an NOVdoes not constitute the initiation of an enforeement action. The Commission defines "enforcemcut actiou" in 30 T.A .C. section 3.2(12), as "an action, initiated by the Executive Director, seeking an enforcement order." The Executive Director initiates an enforcement action if an NOVis not resolved or an agr=uent is not reached with the respondent . The enforcement action is initiated with ion and service of an `Txecutive Director's Preliminary Report and Pe 'on" DPRP . is the EAPRP that serves as the petition which states a cause ofaction against a respondent and initiates an enforcement action. 25TPRCCiEWIRONI=NTRL Fax :512-239-0606 Nov 5 2001 17 :16 P.27

not included in the operating pezmit .38 By delaying the inclusion of State Minor NSRas an applicable requirement in the Texas Part 70 Operating Permit Program, the State delayed the applicability of the operating pennit program's requirements, enumerated in Part 70, including its requirements for compliance and enforcemcnt, until f .wal program

subrnittal . In its intaim approval notice, the EPA acknowledged this position: "Although the exchision of minor Nsp, means that important title Vcommpliance measures (e .g., compliance certification, public review, ctc .) will be defeTred for 2 years for minor NSR terms, the proposed provisions would limit the scope and duration of the effects of this deferral, arW would assure that the public could examine, in federally-enforaeable NSRpermits, any terms which are not subject to title Vs compliance measures during the interimperiod ."" 

### Before the TNRCC's addition of State Minor NSRpermits to the State's Part 70 Operating Permit Program, which was effective on June 3, 2001,'° facilities did not violate the State's Pazt 70 Operating Permit Programby modifying an emission unit without a State Minor NSRpermit . Even absent Section 12, the TNRCCcould not validly plead a State enforcement action under its Part 70 Operating Permit Progrum for a failure to have obtained a State Mi= NSRpermit for facility modifications made before march 1, 1999. Such a failure would only be a violation ofTCAA section 382.0518(a)'s prohfbition . Thcrcfore, Section 12's anforcement

3361 Fed . Reg. 32,693, 32,698 (1996) . See aJso id at 32,694-95 (allowing for states to receive interIM

programapproval despite postponing the obligation to incorporate by reference State minor NSRpermits in the first group ofTitle Vpe,rrnits) . 3961 Fed . Reg . 31,443, 31,444 (1996) . 4°S'ee 26 Tex_ Reg

. 3747, 3792 (2001) . 

### 26TPRCCiENVIROhEtJTAL Fax :512-239-0606 Nov 5 2001 17 :16 P.28



### protection does not impair a viable State Part 70 Operating Permit Programenforcement claim . This certification of the State's enforcement authority under the State's submitted program is prospective fromthe date of recent modifications to the State's program which ixtcluded State Minor NSR for the first tirne

. Section 12's limited enforcement protection does not affect the Attorney General's certification ofthe enforcement authority in the submitted State program because it applies to failures to obtain State Minor NSRpertWts that occurred before the beginning of the applicable period for certifying enforcement. State grandfathered facilities are protected fromenforcement only for unauthorized modifications made on or before March 1, 1999 " As discussed above, these violations would not be subject to a State Part 70 enforcement action because State Minor NSRpermits were not included in the interimly approved Title V . program . Effective June 3, 2001, Texas's final revisions to its Part 70 Operating Permit Program in 30 T .A .C . Chapter 122 first began, to include all ofTitle V's requirements, This is the 

### programsubmitted for approval, and this is the program under which the Attorney General is certifying enforcement . Since June 3, 2001, Texas has had the full enforcement authority required by Part 70 for State Minor NSR violators. In summary, Section 12 did not revise the enforcement provisions of Chapter 7 of the Texas Watar Codc. Scction12 is linsited to protection from enforccmcnt for an act of modifying a grandfathe'ed facility without a required State Minor NSR permit on or before March 1,1999. Section 12 is limited to facilities that applied for a VERPon or before August 31, 2001 . Section 12 is limited to failures to obtain State Minor NSRpermits only; it does not affect enforcement of PSDand Nonattainment NSlZ requirements . Pinally, Section 12 limits enforcement of only State Minor NSRpermit violations that occurred prior to the addition ofState Minor NSRto the 27TNRCCiENVIROMENTnL Fax :512-239-0606 Nov 5 2001 17 :16 P-29



### State's Part 70 Operating Permit Program . Therefore,, Section 12 docs not surrender the TNRCC's ability to assure compliance with Part 70's federal operating pennit program 

### enforcement requirements. Rcsponse to EPAQuestions: In its comments on the TNRCC's proposed 2001 revisions to 30 T .A.C. Chapter 122, the 

### ~ EPArequested a respouse to the following enumerated questions : 1 . Please identify which ncanits, niles. or orders Cincluding citation to the a,~p~ate statute _oxre-gulationl are subject to Section 12's amnestyprovision. Also explain how each source would not be subject to the Title V opcrating peTnits pro&=Please note that Section 382.0518 was enacted in 1991 . and became effective September 1 1991 Also any - niles or 

### orders adanted pursuant to Section 3R2.0518-Would be macted after Seo ember 1 1991 Therefore. in vour explanationalso discuss wbetker a verson_would be eligible for anmesiy if a modification took alace vrior to enactment of Section 382 0518 or prior to the promulQation of any niles or orders adopted pursuant to Section 382 0518 As set forth above, Section 12 applies only to State Minor NSRpermits. It is not clear what the last part of the question seeks. Although codified in its current location in 1991, TCAA section 382.0518 is derived from section 3.27 of article 4477-5 of the Texas Revised Civil Statutes, which the Legislature adopted in 1971 ." Section 12's reference to TCAAsection 382,0518 ref= back to this sectioa and its predecessor provisions . 

### "Modifications" taking place ')prior to the enactment ofsection 382.0518" in 1971 would not be violations of TCAA section 382.0518 and its predecessor provisions in the first place. Therefore, Section 12's cnforr,ernent protection would be irrelevant to such modifications. "See TEX

. Ctv. STAT. art . 4477-5, § 3.27, adopted by Act of May 26, 1971, 62na Leg ., R .S., ch. 619, §§ 1-3, 1971 Tex. Gen. Laws 2003, 2004-05, recodified as TEx . HEALTH & SAFL'rY CODE . § 382

.051, Act of May 16, 1989, 71st Leg ., R .S., ch. 678, § 1, 1989 Tex. Gen . Laws 2230, 2723-24, renumbered as T7<X . HEAL'I'li &SAFM

CODE . § 382.05 18, Act ofJuly 25, 1991, 72nd Leg

., la C .S., ch. 3, § 2

.08, 1991 Tex. Gen

. Laws 4, 51-52

. 28TNRCCENVIROMENTAL Fax :512-239-0606 Nov 5 2001 17 :16 P.30

2, gxplain how

Section 12's amnesty provision would not apply to the failure to obtain a uemait reQuired by the PSll or nonattainment NSRprogram, as stated in the Qreamble to the proposed Chapter 122revisions (26 Tex . Reg, at 898) . 

### As set forth above, Section 12 provides enforcement protection only for the failure to have obtained a State Minor NSR permit for modifications made without authorization prior to 

### March 1 . 1999. 3 . Acxordina o 0e Wndfathered Facilities Report . wndfathered facilities can and have been pennitted under: (a) state new source review

pemiits; (b) .permits-by-rule- (c) exerigtioms" its; and (e) flexible ocrmits. FaciliKes Report, Texas N atural Resource

Please 

### address how

these five pemitting authorities would not fall under Texas' definition ofapplicable uirement in 30 TAC, .122.10(2) . For oample, the,proposed definition of app icable 

### reauirement includes Chapter 106 Subchapter A and Chapter 116 Chapter 106 Subchavter A involves ge

.neral Mtiir_ements for permits by rule_ Chapter 116 includes standard permits flexible ncnnits, and voluntarv emission reduction permits . Assuming that the revised definition ofapplicable requirement is adopted as currently pMsed, explain how each permittm authority for a grandfathered source would not be subject to the Title Voperdting pennits program For example how would a Sraadfathered source that was issued a standard permit under Chaoter 116 not be subject to the Title Voperating pmmits pro,gramat a Part 70 source The listed permits and authorizations are now included as applicable requirements in 30 'X' .A.C . Chapter 122, which is part of the state's current proposed Part 70 Operating Permit Program submittal . Therefore, if a gxandfathered facility is authorized by any of the precoas-truction authorizations listed above and the facility is located at a major so=e, the facility and those authorizations will be included in the site's operating permit as applicable requirements, As discussed in Section VIII of this Statement, the 2001 revisions to 30 T.A.C . Cbapter 122 modified the definition of applicable requirement to include the major and minor new source review requxmrne

.nts of 30 T .A.C

. Chapter 116, Control ofAir Pollution by Permits for New Construction or Modification, and 30 T .A .C . Chapter 106, Permits by Rule. Section 29TNRCC/ENVIROMENTFIL Fax :512-239-0606 Nov 5 2001 17 :16 P .31



### 122.142(bx3) of 30 T.A

.C. requires permits for which the Executive Director has not authorized initiation of public notice by the effective date ofthe 2001 revisions to 30 TAX . Chapter 122 (June 3, 2001) to include State Minor NSRat initial issuance. Permits as to which the public 

### notice process was authorized to begin before June 3, 2001, will not include State Minor NSRat initial issuance, and instead will have State Minor NSR incorporated no later than penn,it rcnewal . Consistent with the requirements in 40 C . .F.R. section 70.4(dx3xiix1), the revised 

### requirements of 30T.A.C. section 122 .231, Permit Reopenings, provide that the commission will institute proceedings to reopen previously issued operating permits to incorporate excluded State Minor NSRpermits as terms of operating permits. Thus, opmiting permits will be reopened to 

### inchWe all State Minor NSR authorizations for facilities at a site. After an operating permit is issued, reopened or renewed to include State Minor NSR authorizations, those autborizations will be an enforceable applicable requirement in the permit and subject to the compliance conditions of 30 T.A.C

. Chapter 122. 4 . 

### If a grandfathered source has been subsequently permitted by either a State new source it-bv-rule. exemgtiotz standard permits or flexible permit . has it lost its 

### imutdfaxhered status, and thus is not eligblc for amnestv? If a State grandfathered source obtains a permit or other authorization it will no longer be grandfathered and it will have to comply with the roquinKnants of its pamit or authorization or be subject to enforcement. If a State gmdfathered facility obtained one of the listed permits or authorizations, it would appear the facility would not be entitled to the enforcement protection of Section 12. The enforcement protection of Section 12 only applies to qualified VERP applicants, not applicants for the permits lasted in the question. 30TNRCC/ENVIROMENTfL Fax :512-239-0606 Nov S 2001 17 :16 P.32

5 . If aperson receives anYncgty .for failing to obtain a preconstruction pent,at for a modification. is the source nemnitted retroactively ji .e., under the permitting reguirements that existed at the time it should have been p=itted Je.g., best available control technolo that existed at the time it would have gotten apernut)j . or will it be,pcnmitted under the cnrrent pennitting reouirements and nequired to use current BACT? If it is peraiitted retroactively. please explain vvhy it is not permitted under the current_pe,rmitting requireanents. As discussed above, in Senate Bill 766 (1999) the 76' Legislature modified the TCAA's Permitting program

and created two new

permits with conditions that allow for control technology requiremeats suited to State grandfdhered facilities : MPs or multiple plant permits. The VERP permit allows a State grandfathered facility to meet the more stringent of ten-year old BACT or a generally achievable control technology (which is interpreted as first tier BACT, minus age and remaining useful life) . If a State grandfathered facility cannot comply with the control requirements for a VERP, it can create emission reduction credits under TCAA section 382.05193, Emissions Permits Through Emissions Reduction. State grandfathered facilities at multiple plant sites that are owned or operated by the same person may apply for a multiple plant permit whichwill set an aggregate rate of emissions. Senate Bin 766 (1999) provided these control requirements instead of requiting a retroactive application of BAGT, as it is defined today or as it existed at the time the facility was modified. Current BACT Is not required because the Legislature determined that an alternative control requirement was better suited for these facilities . Besides the two specific pen-nit options, owners or operators of State grandfathered facilities can choose to apply for other permitting authorizations under the TCAA which do require BACT . Examples are a permit under section 382.0518, a standard permit, a flexible permit, or a permit by rale.

31ThRCCENVIROMENTfL Fax :512-239-0606 Nov 5 2001 17 :17 P .33



### XV . AUTHORITY TOENFORCE LAPSED PERMITS State law provides authority to enforce the temas and conditions ofa permit which has expired, if the source has filed a timely and complete application for renewal, so as to assure compliance with all applicable requirements . 

### Federal Anthority.'_ CAA§ 502(bxSxA) (42 U .S .C. § 7661a(bx5xA)) . 

## 40 CY .R. § 70.4(b)(i0) . Citation ofState Laws and Regulations: 

### Tx. HEALTH &SAFMx CODE § 382.0543(g), (h) . 30 T.A .C. § 122 .241(g) . The analysis in this section is not changed XVL EPAPERMIT VETO 

### State law pmvides that an operating permit will not issue if the EPA objects in a timely m,antaer to its issuarnce pursuant to 40 C .F.R, section 70.8(c), or, if the permit bas been issued, the EPAobjects pursuant to 40 C .1~.R . section 70.8(d) . Feder_ ,LAuthoritv: CAA §§ 502(b)(5)(F), 505(b) (42 U .S .C . §§ 7661a(bx5)(F), 7661d(b)) . 

## 40 C .F .R . §§ 70 .4(bx3xix), 70.8(c)-(d) . Citation ofStat e Laws and Rey 

### - ulatiom : Tsx.HEALTH &

SAP= CODE §§ 382

.0541(b), 382.0563

. 30 T .A.C . §§ 122.350, 122

.360. 32TNRCCEhR1IROMENTAL Fax :512-239-C606 Nov r, 2001 17 :17 P .34



### The analysis in this section is unchanged except to note that the 1993 version of 30 T-.A ..C. Chapter 122 only allowed for EPAveto on initial permit issuance, significant permit modifications, renewals and reopeniungs. The 1997 revisions to 3o T .A.C. Chapter 122 allow for EPAveto on all of the above, and on minor permit revisions. ML FINAL AGENCY ACTION ON PERMTS 

### State law provides .that solely for the purposes ofobtainingjudicial review in State court for the TNRCC's failure to take final action, "final permit action" shall include the faihm ofthe TNRCC to take final action on an application for a permit, permit renewal, or permit revision within eighteen months. Federal A, ori 

## CAA§ 502(bX7) (42 US-C

. § 7661 a(bX7))- 40 CRR . § 70 .4(b)(3Xxi) . Citation of State Laws and Regulations : TP,x . HEALTH &SAPm ConB §§ 382.032(b), 382.0542(c), 382.0543(d) . 30T .A .C . § 122.139

. 

### T'he analysis in this section is not changed.Ti+t2CCENVIROhENTPL Fax :512-239-0606 Nov 1-- 2001 17 :17 P .35

XVTIx. ]DEFAULT PERMIT ISSUANCE State law

does not authorize the issuance, modification, or renewal of any permit based on the passage of a specified time period when the TNRCChas failed to take action on the application, and State law does not include any other similar provision providing for default issuance of a permit unless EPA has specifically waived the right of review for itself and affected States. Federal Autlumbn

XIX . 

### CAA § 505(a)-(e) (42 U .S.C . § 7661d(a}-(e)) . 40 C .F .R § 70

.8(e) . 

### The analysis in this section is not changed. OPPORTUNITY FOR JUDICIAL REVEENV OF PERMIT ACTIONS 

### State law provides an opportunity forjudicial review in State court ofany final pe,rwit action. Those eligible to sue are the applicant, any person who participated in the public participation process provided pursumt to the CAAand 40C .F .R . section 70

.7(h), or any other person who could obtainjudicial review of such actions under State law . Any provisions of State law that limit access tojudicial review do not exceed the corresponding limits onjudicial review imposed by the standing requirements ofArticle III of the United States Constitution. 

### Fedeiral Authority: 

## CAA § s02(roX6) (4a U

.S.C . § 7s6ia(bxs)) . 40 C .F.R . § 70 .4(bX3Xx)-

34TNRCC/ENVIROMENTAL Fax :512-239-060G Nov r- 2001 17 :17 P.36

'ta ' ofState Laws and e lations: 

### ZEx. HEALTH &SAFETY CODE §§ 382.032,382-0562,382.0563,382.061(c) . The analysis in this section, including that contained in the 1996 statement and letter of commitment, is not changed.



### . LIMITATIONS ONJUDICIAL REVIEW State law

provides that the opportunity for judicial review

of a final petwuit action in State court described in paragraph XIXof this Opinion shall be'the exclusive means for obtaitvung judicial review

of the terms and conditions of permits. State law provides that petitions for judicial review

must be filed no later than thirty days after the final permit action. State law provides that if the final permit action being challenged is the T1dRCC's failure to take final action, a petition for

judicial reviewmay be filed at any time before the TNRCCdenies the permit or issues the final permit . Federal Authoritv: CAA § 502(bx6) (42 U .S .C . § 7661a(bx6)) . 40 C .F.R. § 70

.4(bx3xxii) . Citation ofState Laws and Regulations : TEx . HEALTH &

SAFETY CODE §§ 382

.032, 382_0542(c), 382.0543(d) . The analysis in this section is not changed. XJO . COORDINATION WITHACID RAIN PROGRAM REQUIREMENTS State law

is consistent with and cannot be used to modify the Acid Rain Program requirements of 40 C

.F .R . Part 72. 35

## TNRcCEWlROMENra. Fax :512-239-ow6 Nov 5 9001 17 :17 P.37

FcdeM1 AIM

ori CAA §§ 408(a), 506(b) (42 U .S.C . §§ 7651g(a), 7661e(b)) . 40 C .F.R ff 70

.4(bx3xxjfi), 72

.70(b), 72.72(a) . 

### Citation ofState Laws onq, T11x~ HEALTH &SAMY Co,vB §§ 382.0541(XO)-(12), 382 .0542(30), ~30 T .A .C . § 122 .410_ , The analysis in this section is not changed . X .XTL AUTHORITY FORLOCAI/IIMRSTATjE PROGRAMS No local entities in Texas will be implementing their own operating permit programs. 

# 1d~-Z9~o1 Date