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SUPPLEMENT TO 1.993,1996, and 1998 STATEMENTS OF LEGAL AUTHORITY FOR 

TEXAS'S FEDERAL CLEAN AIR ACT TITLE V OPERATING pER1VIIT PROGRAM 

State of Texas 

Office of the Attorney General 

INTRODUCTION 

This is the fimal statement of the Attorney General of Texas concerning Texas's authority 

to carry out its state program to implement a federal Clean Air Act Title V operating permit 

program in accordance with Part 70 of Title 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 form of 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 TNRCC submitted the first of these on November 12, 1993 (the 1993 Statement) . 

A copy 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 EPA Title 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 TNRCC submitted the first of 

'Title V of the 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 of authority 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. 
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. these on May 6, 1996 (the 1996 Statement) . A copy of it is attached hereto as Attachment D. It 

includes a letter of commitment by the Commission's Executive Director and Gcoeral Counsel, 

The TNRCC submitted the second additional Attomey General statement on August 6, 1998 (the 

1998 Statement) as a supplement to the 1993 and 1996 Statements. A copy of it is attached 

hereto as Attachment C. 

This statement itmcoxporates the contents of the earlier statements and does zDot repeat the 

entire contents of the 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 of Texas, in accordance with section ,502(d) of the 

federal Clean Air Act (CAA) as amended and EPA regulations,' I certify that the laws of the 

State of Texas, including the Texas Clean Air Act (TCAA), Texas Health and Safety Code 

Chapter 382, provide adequate authority to carry out all aspects of the program submitted on 

June 1, 2001, by the TNRCC to 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) . 

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Federal Operating Permits s On September 17, 1993, and in two supplemental documents the 

TNRCC submitted its proposed Part 70 Operating Permit Program to the EPA.6 On June 25, 

1996, the EPA promulgated 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 30 T.A.C. Chapter 122 in part to address 

some of the deficiencies noted by the EPA in its prior notices .' On three occasions the EPA has 

extended its interim approval of Texas's Part 70 Operating Permit Program. On August 29, 

1997, the EPA extended the interim approval 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 interim program approval to June 

1, 2002.' 1 On March 29, 2000, however, the EPA published 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, EPA published a proposal to give the Commission's program interim 

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)_ 
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provisions of the CAA." Subsequently, on May 22, 2000, the EPA published notice that a11 

states with interim approval would havc until June 1, 2001, to submit a program for full program 

approval and that the EPA would 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 of its submitted Part 70 

Operating Permit Program in accordance with the requirements of Title V of the CAA and 40 

C.F.R Part 70. Each enumerated requirement is listed below in its own section with the specific 

requirement restated from the EPA Model Opinion. 

1<. AUTHORITY TO MUE 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 CAA section 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 CAA and 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. 

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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 TO ISSUE PERMITS TO NONCOMPLXING SOURCES 

State law provides authority for the; ZNRCC to 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) . 
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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 AND CONFLICTS 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 of sach 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 of the 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. 
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TV. PERMYT FEES 

. State law provides authority for the TNRCC to assess and collect annual pernlit few from 

sources within the State that are subject to the requirements of Title V of the CAA and 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 V program. . 

Fed.,Anthoribu 

CAA § 502(bx3XA) (42 U.S .C. § 7661a(bx3xA)), 

40 C.F.R. §§ 70.9(a)-(d). 

Citation of State Laws and 12 ations: 

Tr.x. HEALTH & SAFETY ConE §§ 382.0621, 3s2.0622(b)-(c) . 

30 T.A.C. § 101 .27. 

30 T.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 term not to 

exceed five years. State law also provides authority to issue permits with acid rain provisions for 

a fixed tmn of five 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)- 
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Citation of State IA~,ys and Re ations

")~X" HEALTH 8C SAFMT COvt; §§ 382.0541 (.X5), (12),382.0543(a) . 

30 T.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 of State 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. 
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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. 

30 T.A.C. §§ 122,143(3).(g),122.144. 

no analysis in this section is not changed. . 

VIII- 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 CAA and 40 C.F.R. Part 70. 

Federal~, otit . 

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

4.0 CY.lz . §§ 70.4rox3Xv), 7O.s(a). 

Citation of State 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. 

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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 EPA iuoEteriunly 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 program now include all of the luajor 

and minor new source review requirements of 30 TA-C. Chapter 116, Control of Air 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 

TNRCC did 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 TNRCC did authorize the initiation of public notice by June 3, 

'sIn the June 7, 1995. EPA notice and later in the June 25, 1996, EPA notice, EPA noted that the 1993 version of 30 T.A,.C. Chapter 122 did not properly address State Minor NSR as an applicable requirement. Furthermore, the EPA, has stated ita both the June 7, 1995, and June 25, 1996, EPA notices that the State Minor NSR issue must be addressed in order for the Commission to gain full program approval. 

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

1'26 Tex. Reg. at 3792. 

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2001, will not include State Minor NSR at initial issuance. However, piusaant to 30 T.A.C. 

section 122.231, the TNRCC will institute proceedings to reopen previously issued operating 

permits to incorporate the excluded State Mmor NSR permits, 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 term consistent 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 

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provision of Title 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, EPA notice, 

EPA stated 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 CAA section 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 the June 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 of fall program submittal. 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). 

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August 31, 1995,. EPA rule 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 30 T.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)). 

40 C.F.R §§ 70.4(bx13), 70.1(e). 

0tation of State 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 law includes the 

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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 CAA and 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)) . 

40 C.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 PUBLIC ACCESS TO PERNUT 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 conf dcntial 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. 

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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 of State ,Laws and ReguIations: 

TEx. HEALTH & SAFM'Y CODE §§ 382.040, 382.04 i . 

30 T.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 A newspaper 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 of confidcutial 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. 

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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 

$10,000 per 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 of State 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.' A chart 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, EPA objected to 

the reference to requirements that have been promulgated by EPA but 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. ). 

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delegated to the State as "fedexally enforoeable only." The TNRCC in 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 TNRCC made 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. 

Modifications 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 State preconstruction 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 of TCAA section 382.060, as it formerly existed That provision required registration of grttndfathered 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, from prevention 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, from nonattainment new source review requirements). 

Z 

Y 

17 
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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 

VERP on or before August 31, 2001, Section 12 of Senate Bi11766 (Section 12) prevents the 

TNRCC from initiating an enforcement action against the facility's owner or operator for 

modifications constructed on or before March 1, 1999, that would have required a TCAA section 

382.0518 perniit 26 Section 382.0518 of the 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 70 opMfing 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 of May 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 

18 
TNRCCENVIROMENTAL 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 transinissiom pipeline, 

have permitting options specifically for those types of facilities. 

tion 66 1999 

The EPA asked that this opinion include a discussion of whetbet- 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 . 

19 
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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 NSR requirements, 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 modifying without 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. 

A further limitation is that Section 12 applies only to State Minor NSR permits issued 

pursuant to TCAA section 382.0518. Pefox+e begmning construction, TCAA section 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 NSR petnmit. 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 NSR program 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 

20 
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significant deterioration ("PSD") permits, nonattainment new source review ("Nonattainment 

NSR") permits, and CAA section 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 NSR permits 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 NSR permits because the 

requirement for a facility to obtain a PSD or Nonattaizuao,ent NSR permit is not located in TCAA 

section 382.0518, as discussed in the next paragraphs. 

The requirement to obtain a PSD permit 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 TNRCC invoked in support of adoption was TCAA section 382.017, not the predecessor of 

TCAA section 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 PSD perm,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). 

21 
TN2CCENVIROht=NTRL Fax =512-239-0606 Nov 5 2001 17 :15 P.23 

The requirement to obtain a Nonattainment NSR permit 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 TCAA section 

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 NSR permit requirement located in TCAA section 382.0518 

has never included the requirement to obtain PSD or Nonattamment NSR per)ni 

when the Legislature originally passed the predecessor provision of TCAA section 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 NSR permits in their modern forms 

Perforce, the Texas Legislature could not have intended the predecessor of TCAA 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 firom PSD or 

`30 T.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. 

22 
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Nonattaizitnent NSR when no such review was then legally required. 

Furthermore, PSD and Nonattainment NSR requirements 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 NSR permit many times since 1971 .35 

None of these legislative acts directly or indirectly required a facility to obtain a PSD or 

Nonattainment NSR permit. 

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 PSD or Nonattaiiuttent NSR permit. Subsection 382.0518(b) 

contains the requirements for approval of a State Minor NSR permit . 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 of May 16, 1989, 71st Leg., RS., ch. 678, § 1, 1989 Tex. Gm Laws 2230, 2723-24; Act of July 25, 1991, 72nd Leg-, 1 st 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 of Air Quality Mauageuxent Division, John Calgani (February 28, 1989). 

23 
TPt2CCfENVIROMENTFL 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 NSR permit. It must fmd no indication that the emissions from the 

facility will undermine protection of the public's health and physical property. Health effects 

review is 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 TNRCC carried out review of 

PSD permit applications, but since Texas did not yet have EPA authorization to issue PSD 

permits, thc EPA issued PSD pcr~its entirely separate from Texas State Minor NSR permits. 

~ Since authorization of Texas's program in 1992, the TNRCC has cornbined a Minor NSR permit 

( and a PSD pe.ntnit in one document, but the document always lists two permit n.umbes, one for 

the State Minor NSR permit and another for the PSD permit. A similar approach is followed 

with respect to the relatively rare Nonattainment NSR permits. 

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 of applicable requirements, in 30 T.A.C. section 122.10, includes VLRPs, so CAA 

Title Y enforceability 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 TTTRCC could use such a modification in advocating enhanced 

penalties in a future action for enforcement with respect to other kinds of violations. 

State Mlnor NSIt Not Part of Q:rrcntlv Approved Title V Prng, ~,,p 

Setting aside the limitations discussed above, Section 12 has no effect on the certification 

heroin because it protects from enforcement only those violations that occurred before State 

Minor NSR was included in the State's Part 70 Operating Permit Program. Texas is currently 

operating its program P=mt to the EPA's interim approval given June 25, 1996. At the time 

of interim approval, Texas did not include State Minor NSR in its Part 70 source definition 

regulations in 30 T.A.C. Chapter 122. EPA noted the non-inclusion of State Minor NSR and set 

forth conditions for Texas Part 70 operating permits to explicitly state that State Minor NSR was 

3'Yt is the practice of the TNRCC Executive Director to conduct inspections and, upon discovery of a potential enforcement situation, to issue a notice of violation (NOV). The issuance of an NOV does 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 NOV is 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 of action against a respondent and initiates an enforcement action. 

25 
TPRCCiEWIRONI=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 NSR as 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 V commpliance 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 NSR permits, any terms which are not subject to title Vs compliance 

measures during the interim period ."" 

Before the TNRCC's addition of State Minor NSR permits 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 Program by modifying an emission unit without a State Minor 

NSR permit. Even absent Section 12, the TNRCC could not validly plead a State enforcement 

action under its Part 70 Operating Permit Progrum for a failure to have obtained a State Mi= 

NSR permit for facility modifications made before march 1, 1999. Such a failure would only be 

a violation of TCAA 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 program approval despite postponing the obligation to incorporate by reference 

State minor NSR permits in the first group of Title V pe,rrnits) . 

3961 Fed. Reg. 31,443, 31,444 (1996) . 

4°S'ee 26 Tex_ Reg. 3747, 3792 (2001) . 

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

protection does not impair a viable State Part 70 Operating Permit Program enforcement claim. 

This certification of the State's enforcement authority under the State's submitted 

program is prospective from the 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 of the enforcement authority in the submitted State 

program because it applies to failures to obtain State Minor NSR pertWts that occurred before the 

beginning of the applicable period for certifying enforcement. State grandfathered facilities are 

protected from enforcement 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 NSR permits 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 of Title V's requirements, This is the 

program submitted 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 VERP on or before August 31, 2001 . Section 

12 is limited to failures to obtain State Minor NSR permits only; it does not affect enforcement 

of PSD and Nonattainment NSlZ requirements . Pinally, Section 12 limits enforcement of only 

State Minor NSR permit violations that occurred prior to the addition of State Minor NSR to the 

27 
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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 EPA Questions: 

In its comments on the TNRCC's proposed 2001 revisions to 30 T.A.C. Chapter 122, the 

~ EPA requested 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 amnesty provision. 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 NSR permits. 

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 

TCAA section 382,0518 ref= back to this sectioa and its predecessor provisions . 

"Modifications" taking place ')prior to the enactment of section 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 of July 25, 

1991, 72nd Leg., la C.S., ch. 3, § 2.08, 1991 Tex. Gen. Laws 4, 51-52. 

28 
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2, gxplain how Section 12's amnesty provision would not apply to the failure to obtain a 

uemait reQuired by the PSll or nonattainment NSR program, as stated in the Qreamble to the 

proposed Chapter 122 revisions (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 Natural Resource 

Please 

address how these five pemitting authorities would not fall under Texas' definition of applicable 

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 

of applicable requirement is adopted as current ly pMsed, explain how each permittm 

authority for a grandfathered source would not be subject to the Title V operdting pennits 

program For example how would a Sraadfathered source that was issued a standard permit 

under Chaoter 116 not be subject to the Title V operating pmmits pro,gram at 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 of Air Pollution by Permits for New 

Construction or Modification, and 30 T.A.C. Chapter 106, Permits by Rule. Section 

29 
TNRCC/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 of the 2001 revisions to 30 TAX. Chapter 122 

(June 3, 2001) to include State Minor NSR at initial issuance. Permits as to which the public 

notice process was authorized to begin before June 3, 2001, will not include State Minor NSR at 

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 30 T.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 NSR permits 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 . 

30 
TNRCC/ENVIROMENTfL Fax :512-239-0606 Nov S 2001 17 :16 P.32 

5. If a person 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 which will 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. 

31 
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XV. AUTHORITY TO ENFORCE LAPSED PERMITS 

State law provides authority to enforce the temas and conditions of a 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 of State 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 EPA PERMIT 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 

EPA objects 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 of State Laws and Rey-ulatiom: 

Tsx.HEALTH & SAP= CODE §§ 382.0541(b), 382.0563. 

30 T.A.C. §§ 122.350, 122.360. 

32 
TNRCCEhR1IROMENTAL 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 EPA veto on initial permit issuance, significant permit 

modifications, renewals and reopeniungs. The 1997 revisions to 3o T.A.C. Chapter 122 allow for 

EPA veto on all of the above, and on minor permit revisions. 

ML FINAL AGENCY ACTION ON PERMTS 

State law provides.that solely for the purposes of obtaining judicial review in State court 

for the TNRCC's failure to take final action, "final permit action" shall include the faihm of the 

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). 

30 T.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 TNRCC has 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 for judicial review in State court of any final pe,rwit 

action. Those eligible to sue are the applicant, any person who participated in the public 

participation process provided pursumt to the CAA and 40 C.F.R. section 70.7(h), or any other 

person who could obtain judicial review of such actions under State law. Any provisions of State 

law that limit access to judicial review do not exceed the corresponding limits on judicial review 

imposed by the standing requirements of Article III of the United States Constitution. 

Fedeiral Authority: 

CAA § s02(roX6) (4a U.S.C. § 7s6ia(bxs)). 

40 C.F.R. § 70.4(bX3Xx)- 

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

'ta ' of State 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 ON JUDICIAL REVIEW 

State law provides that the opportunity for judicial review of a final petwuit action in State 

court described in paragraph XIX of 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 review may be filed at any time before the TNRCC denies 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 of State 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 WITH ACID 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 of State 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 FOR LOCAI/IIMRSTATjE PROGRAMS 

No local entities in Texas will be implementing their own operating permit programs. 

1d~-Z9~o1 

Date