Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 113. Purchasing 1 TAC sec.113.18 Purchases of Information Resources Technology The General Services Commission adopts the repeal of sec.113.18, concerning purchases of information resources technology, without changes to the proposed text as published in the July 6, 1993, issue of the Texas Register (18 TexReg 4369). The repeal of sec.113.18 is to conform to Senate Bill 381, sec.1.28, Acts of the 73rd Legislature, which repeals Texas Civil Statutes, Article 601b, sec.3. 021, concerning purchases or leases of automated information and telecommunications items. The repeal of sec.113.18 deletes obsolete language. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 601b, Article 3, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of Article 3. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328056 Judith M. Porras General Counsel General Services Commission Effective date: September 21, 1993 Proposal publication date: July 6, 1993 For further information, please call: (512) 463-3583 1 TAC sec.113.25 The General Services Commission adopts an amendment to sec.113.25, concerning purchase of motor vehicles, without changes to the proposed text as published in the July 6, 1993, issue of the Texas Register (18 TexReg 4369). The amendment conforms sec.113.25 to House Bill 2626, Acts of the 73rd Legislature, sec.20, which amends Texas Civil Statutes, Article 601b, sec.3.29. The amendment allows for the purchase of vehicles with a wheelbase of up to 116 inches or SAE net horsepower of 280, if they are converted to use compressed natural gas or another alternative fuel. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328058 Judith M. Porras General Counsel General Services Commission Effective date: September 21, 1993 Proposal publication date: July 6, 1993 For further information, please call: (512) 463-3583 1 TAC sec.sec.113.91, 113.93, 113.95, 113.97, 113.99 The General Services Commission adopts the repeal of sec. sec.113.91, 113.93, 113.95, 113.97, and 113.99, concerning competitive cost review, without changes to the proposed text as published in the July 6, 1993, issue of the Texas Register (18 TexReg 4369). The repeals are to conform to House Bill 2626, sec.68, Acts of 73rd Legislature, effective September 1, 1993, which repeals Texas Civil Statutes, Article 601b, Article 13, concerning the competitive cost review program. The repeals delete obsolete language. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328059 Judith M. Porras General Counsel General Services Commission Effective date: September 21, 1993 Proposal publication date: July 6, 1993 For further information, please call: (512) 463-3583 Chapter 115. Building and Property Services Division 1 TAC sec.115.32 The General Services Commission adopts an amendment to sec.115.32, concerning emergency leases, without changes to the proposed text as published in the July 23, 1993, issue of the Texas Register (18 TexReg 4785). The amendment increases the maximum term of emergency leases from 12 months to 24 months and deletes the requirement that the purpose of emergency leases be to provide time for acquiring space in accordance with Article 6. The longer term for such emergency leases will increase flexibility in scheduling commencement dates of bid leases, minimize the cost of emergency leases, and avoid the risk of unnecessary relocation of offices, with the resultant expense and disruption of client services. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 601b, sec.6.12, which provide the General Services Commission with the authority to promulgate rules necessary to administer its functions under Texas Civil Statutes, Article 601b, Article 6. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328061 Judith M. Porras General Counsel General Services Commission Effective date: September 21, 1993 Proposal publication date: July 23, 1993 For further information, please call: (512) 463-3583 Chapter 117. Centralized Services Division 1 TAC sec.sec.117.11-117.18 The General Services Commission adopts the repeal of sec. sec.117.11-117.18, concerning interagency cooperation contracts, without changes to the proposed text as published in the July 6, 1993, issue of the Texas Register (18 TexReg 4370). The repeals are to conform to House Bill 2626, 73rd Legislature, sec.19, 53-56, and 68, which eliminate former requirements for commission approval and audit of interagency contracts. The repeals delete obsolete language. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328060 Judith M. Porras General Counsel General Services Commission Effective date: September 21, 1993 Proposal publication date: July 6, 1993 For further information, please call: (512) 463-3583 Chapter 123. Facilities Construction and Space Management Division Selection of Architect/Engineers for Professional Services 1 TAC sec.123.15 The General Services Commission adopts an amendment to sec.123.15, concerning the selection of architects and engineers, without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3543). The amendment better ensures equal opportunity for historically underutilized firms to obtain state contracts for architectural and engineering services. The amendment to sec.123.15 requires the commission to consider a firm's experience on comparable construction projects and to formulate a list of firms to be considered which includes at least 50% historically underutilized businesses, unless the commission's HUB certification office approves less than 50%. One written comment was received. The commenter suggested that using agencies not be permitted to make recommendations of firms because the commission's procedure could be bypassed. The commenter stated the opinion that requiring the "short list" to consist of 50% HUBs is disproportionate and unlikely to be achievable and that the selection procedure should give "extra selection criteria merit" to all firms that have not previously worked for the state whether or not minority or female owned. Elliott and Hamill Architects commented against the section. The commission disagrees that permitting using agencies to recommend firms will bypass the commission's selection process, as any firm must be selected through the commission's stated procedures. Also, permitting using agency recommendations reflects statutory requirements. The commission also disagrees that the 50% standard or the definition of historically underutilized businesses should be changed. The purpose of the amendment is to address achieving the commission's goals for contracting with historically underutilized businesses, as defined in Texas Civil Statutes, Article 601b. At this time, the 50% target is considered appropriate and necessary to ensure an equal opportunity for selection. The amendment does not limit, prohibit, or restrict any firm from being selected; it does not modify or lessen technical competence requirements for selection. It insures an opportunity to be selected, but it is not intended to and does not insure or guaranty selection of a HUB firm. The amendment is adopted under Texas Civil Statutes, Article 601b, sec.5. 22(b), which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of Article 5. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328057 Judith Monaco Porras General Counsel General Services Commission Effective date: September 21, 1993 Proposal publication date: June 4, 1993 For further information, please call: (512) 463-3583 Chapter 125. Travel and Transportation Division 1 TAC sec.125.65 Reduction and/or Waiver of Required Fleet Percentages The General Services Commission adopts an amendment to sec.125.65, concerning Travel and Transportation Division, without changes to the proposed text as published in the July 6, 1993, issue of the Texas Register (18 TexReg 4370). Senate Bill 7 passed by the 73rd Legislature, concerning school finance issues contains provisions which discontinue the commission authority to waive the requirements of the Texas Alternative Fuels Program for school districts. School districts will now be allowed to certify their own waivers with general oversight provided by the Texas Education Agency. These amendments are necessary to reflect this change. The section will streamline the process for school districts to seek waivers from the requirements of this program in compliance with applicable statutes. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 601b, Article 14, which provide the General Services Commission with the authority to promulgate rules necessary to implement that article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328055 Judith M. Porras General Counsel General Services Commission Effective date: September 21, 1993 Proposal publication date: July 6, 1993 For further information, please call: (512) 463-3583 TITLE 7. BANKING AND SECURITIES Part I. State Finance Commission Chapter 3. Banking Section Subchapter E. Banking House and Other Facilities 7 TAC sec.3.91 The Finance Commission of Texas (the Commission) adopts the repeal of sec.3.91, concerning banking house and other facilities, without changes to the proposed text as published in the March 30, 1993, issue of the Texas Register (18 TexReg 1985). The repealed section, governing branch banking in Texas, has been rendered obsolete by action of the Texas Legislature in amending Texas Civil Statutes, Article 342-903. In 1991, Texas Civil Statutes, Article 342-903, was greatly liberalized to permit state banks to branch virtually at will upon the prior written approval of the Commissioner, limited only to the condition that the Commissioner not have "any significant supervisory or regulatory concerns." Acts 1991, 72nd Legislature, Chapter 515, sec.2. The repealed section imposed more rigorous requirements on state banks and their branching decisions than is warranted under the current state of banking law in the United States. A proposed version of sec.3.91, published at 18 TexReg 2249, is being withdrawn and a new proposed sec.3.91 is published for comment in this issue of the Texas Register. Article XVI, sec.16(c), of the Texas Constitution provides that a state bank "has the same rights and privileges that are or may be granted to national banks of the United States domiciled in this State." Pursuant to Texas Civil Statutes, Article 342-113(4), the Commission is charged with promulgating rules to "permit state banks to transact their affairs in any manner ... which they could do ... were they organized and operating as a National bank under the laws of the United States...." The intent of these provisions is to preserve competitive parity between state and national banks. The Commission has determined that the intent of these provisions, as applied to branch banking, is best served by repeal of sec.3.91 even in the absence of a replacement section. Branch banking decisions of the Banking Commissioner of Texas will be made pursuant to the naked statutory provisions of Texas Civil Statutes, Article 342-903, unaided by any rule, until such time as a new sec.3. 91 is adopted. The repeal is deleting obsolete and burdensome requirements from state law regarding branch banking that are no longer justified. No comments were received regarding the proposed repeal of the pre-existing sec.3.91. To the extent comments received on the withdrawn proposal for a replacement section can be viewed as comments on the proposed repeal, all were favorable. The repeal is adopted under Texas Civil Statutes, Article 342-113 and Article 342-903, which provide authority to the Commission to adopt rules regarding branch banking and the implied authority to repeal or amend rules previously adopted on that subject. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9328009 Everette D. Jobe General Counsel Texas Department of Banking Effective date: September 21, 1993 Proposal publication date: March 30, 1993 For further information, please call: (512) 475-1300 Part II. Banking Department of Texas Chapter 25. Prepaid Funeral Contracts 7 TAC sec.25.21, sec.25.22 The Texas Department of Banking (the "Department") adopts new sec.25.21, sec.25.22, concerning the Department's Joint Memorandum of Understanding with the Texas Funeral Service Commission and the Texas Department of Insurance. There are no changes to the proposed text as published in the June 11, 1993, issue of the Texas Register (18 TexReg 3650), except as necessary to correct grammatical and typographical errors, and the text will not be republished. New sec.25.21 outlines the statutory requirements of Texas Civil Statutes, Article 4582b, sec.4(I), which mandates the adoption of the rule embodied in new sec.25.22. New sec.25.22 sets out the manner in which the three agencies will coordinate their statutory responsibilities in the area of prepaid funeral services and transactions. The new rules are designed to improve regulation of prepaid funeral services and insurance and to provide more appropriate and timely responses to consumer complaints through better coordination of the three agencies. No comments were received regarding adoption of the rules. The new rules are adopted under Texas Civil Statutes, Article 4582b, sec.4(I) , which mandate that the Department, the Texas Funeral Service Commission, and the Texas Department of Insurance enter into a Joint Memorandum of Understanding and promulgate it as a rule. These rules are also adopted under Texas Civil Statutes, Article 548b, sec.2, which provide that the Department is authorized to prescribe reasonable rules and regulations incidental to the orderly administration of the prepaid funeral benefits statute, Finally, rules are also adopted under Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, which authorize and require each state agency to adopt rules of practice setting out the nature and requirements of available procedures and to prescribe the procedures for adoption of rules by a state administrative agency. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9328013 Everette D. Jobe General Counsel Texas Department of Banking Effective date: September 21, 1993 Proposal publication date: June 11, 1993 For further information, please call: (512) 475-1300 TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.31 The Railroad Commission of Texas adopts an amendment to sec.3.31, concerning gas well allowable, without changes to the proposed text as published in the July 27, 1993, issue of the Texas Register (18 TexReg 4923). This amendment changes, from the 20th to the 25th day of the month, the date by which the commission must determine the lawful demand for gas. This change is authorized by the Texas Natural Resources Code, sec.86.085, as amended by Senate Bill 141. The change is necessary to allow commission staff adequate time to determine the lawful demand for gas and to assign allowables accordingly. One commenter expressed concern over the potential delay in getting allowables assigned. The commission disagrees. Determination of demand on or before the 25th of the month will leave ample time to assign allowables. Texas Mid- Continent Oil and Gas Association expressed neither support for, nor opposition to, the amendment. The amendment is adopted pursuant to the Texas Natural Resources Code, sec.sec.81.051, 81.052, 85.053, 85.055, 86.041, 86.042, and 86.085, which provides the commission with the authority to adopt rules for the following purposes: to govern and regulate persons and their operations under the jurisdiction of the commission; to determine the lawful market demand for gas to be produced from each reservoir; to effectuate the provisions and purposes of the Texas Natural Resources Code, Chapter 86. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9328002 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Section Railroad Commission of Texas Effective date: September 20, 1993 Proposal publication date: July 27, 1993 For further information, please call: (512) 463-6923 TITLE 22. EXAMINING BOARDS Part XXV. Structural Pest Control Board Chapter 593. Licenses 22 TAC sec.593.21 The Structural Pest Control Board adopts an amendment to sec.593.21, without changes to the proposed text as published in the June 1, 1993, issue of the Texas Register (18 TexReg 3495). The amendment is adopted to clarify the training hours needed to obtain a technician-apprentice license. The section increases the number of classroom training hours from 20 to 22, allowing two full hours for each required subject. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 135b-6, which provide the Structural Pest Control Board with the authority to establish standards for testing, licensing, and regulating persons, engaged in the business of structural pest control. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 26, 1993. TRD-9327983 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: September 20, 1993 Proposal publication date: June 1, 1993 For further information, please call: (512) 835-4066 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health (Editor's Note: Acts, 1991, 72nd Legislature, First Called Session, Chapter 15, sec.1.07 provided for the transfer of certain programs from the Texas Department of Human Services to the Department of Public Health effective September 1, 1993. These programs included preventive health services, early periodic screening and diagnosis and treatment, family planning, the purchased health services program, and the indigent health care program. Subsequently, by Acts 1993, 73rd Legislature, Regular Session, Chapter 747, the programs became the responsibility of the Texas Department of Health. The Texas Department of Health is the contract agency designated by the Texas Health and Human Services Commission to operate the programs that are part of the medical assistance program (Medicaid). The Texas Register is administratively transferring and duplicating the following rules listed in the table below from Title 40., Part I. Texas Department of Human Services to Title 25. Part I. Texas Department of Health. The table lists the old section number and the new section number that correspond to them.) (Editor's Note: Texas Civil Statutes, Article 4413(502) historical note (Vernon Supplement 1993) states that all functions, powers, duties, funds, and obligations of the Texas Department of Health relating to institutional component of licensing and certification activity other than long-term care facilities be transferred to the Texas Department of Protective and Regulatory Services effective September 1, 1993. The Texas Register is administratively transferring and duplicating the following rules listed in the table published in this issue under Title 40. Part XIX. Texas Department of Protective and Regulatory Services from Title 25, Part I. Texas Department of Health. The table lists the old section number and the new section number that correspond to them.) TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 122. Federal Operating Permits The Texas Air Control Board (TACB) adopts new sec.sec.122.10-122.12, 122. 120, 122.122, 122.130, 122.132-122.134, 122.136, 122.138, 122.139, 122.141, 122.143, 122.145, 122.150, 122.152-122.155, 122.161, 122.163-122.165, 122.201, 122.202, 122.204, 122.210-122.213, 122.215-122.217, 122.219-122.221, 122.231, 122.233, 122.241, 122.243, 122.310-122.312, 122.314, 122.316, 122.410, 122.411, 122.420- 122.422, 122.425, 122.427, 122.430, 122.432, 122.434, 122.435, 122. 437, 122.438, and 122.440, concerning Federal Operating Permits. Sections 122. 10- 122.12, 122.120, 122.122, 122.130, 122.132-122.134, 122.136, 122.138, 122. 139, 122.141, 122.143, 122.145, 122.150, 122.152-122.155, 122.161, 122.163-122. 165, 122.201, 122.202, 122.204, 122.210-122.213, 122.215-122.217, 122.219-122. 221, 122.231, 122.233, 122.241, 122.243, 122.311, 122.312, 122.314, 122.316, 122.411, 122.420, 122.421, 122.430, 122.432, 122.434, 122.435, 122.437, and 122.440 are adopted with changes to the proposed text as published in the May 11, 1993, issue of the Texas Register (18 TexReg 3017). Sections 122. 310, 122.410, 122.422, 122.425, 122.427, and 122.438 are adopted without changes and will not be republished. The new chapter is written to adopt the federal operating permit program as required in new Part 70 of Chapter I: Title 40 of the Code of Federal Regulations (40 CFR 70). Title V of the Federal Clean Air Act Amendments of 1990 (FCAAA or the Act), enacted on November 15, 1990, requires the United States Environmental Protection Agency (EPA) to promulgate regulations within 12 months of enactment that require and specify the minimum elements of state operating permit programs. The new CFR Part 70 contains these provisions. The new TACB Regulation XII is created to adopt the regulatory authority of the federal operating permit program required under sec.70.4(b) of 40 CFR 70 regarding elements of the initial program submission. Throughout the preamble, "Regulation XII" refers to Chapter 122; "Regulation VI" refers to Chapter 116. The chapter is organized into five subchapters: Subchapter A-Definitions; Subchapter B-Permit Requirements; Subchapter C-Permit Issuances, Revisions, and Renewals; Subchapter D-Affected State Review, EPA Review, and Citizen Petition; and Subchapter E-Acid Rain. There is a state-only requirement included in sec.122.132(a)(5) of this title (relating to Application and Required Information) to establish a maximum emission rate and operational limitation for grandfather facilities. This applies to facilities which were constructed prior to September 1, 1971 and thereby predate the Texas new source review program. One section in the new rules, sec.122.122 (relating to Potential to Emit), will become part of the Texas State Implementation Plan. Regulation XII does not include a permit shield which is an optional provision of the federal rules in Part 70. Comments were solicited by the TACB on issues under consideration for adopting a permit shield. On February 22, March 10, March 24 and 25, and April 8, 1993, roundtable meetings were held by the staff with the regulated community and the general public. The purpose of the roundtable meetings was to solicit comments from the regulated community and the general public regarding the draft rules. Public hearings were held on June 2, 1993, in Houston, on June 3, 1993, in Arlington, and on June 4, 1993, in Austin to consider the proposed new rules. The public comment period closed on June 11, 1993. Testimony was received from 56 commenters. The following commenters generally supported the proposed rules with some suggested changes: Pennzoil Company (Pennzoil); Texas Mid-Continent Oil & Gas Association (TMOGA); Ensearch Processing Incorporated (Ensearch); Marathon Oil Company (Marathon); Dupont; Texas Utilities Services (TU); El Paso Electric Company (El Paso); 3M Company (3M); Exxon Company, U.S.A. (Exxon- Houston); Lone Star Chapter of the Sierra Club (Sierra); Texas Chemical Council (TCC); Chevron U.S.A. Products Company (Chevron Products); Natural Gas Pipeline Company of America (Natural Gas); Houston Lighting & Power (HL&P); Union Carbide Chemicals and Plastics Company Inc. (Union Carbide); ARCO Oil and Gas Company (AOGC); Gas Processors Association (GPA). The following commenters suggested changes to the proposed rules without stating their position on the overall proposal: Small, Craig and Werkenthin (Small-Craig); Exxon Chemical Americas (Exxon Chem); Texas Instruments Incorporated (TI); American Electronics Association (AEA); Jones, Day, Reavis and Pogue (Jones-Day); Lower Colorado River Authority (LCRA); Phillips Petroleum Company (Phillips); Gulf States Utilities Company (GSU); U.S. Environmental Protection Agency (EPA); Central Power and Light (CP&L); Rescar Incorporated (Rescar); Browning-Ferris Industries (BFI); Lone Star Gas Company (Lone Star); Chevron U. S.A. Production Company (Chevron Production); Enron Pipeline and Liquids Group (ENRON); Lloyd, Gosselink, Fowler, Blevins & Mathews, P.C. (Lloyd-Gosselink); Southwestern Public Service Company (SPSC); International Association of Drilling Contractors (IADC); and eight individuals. One of the eight individual commenters expressed total opposition to the proposed rules. The following commenters generally supported the proposed rules without making specific suggestions: Mobil Oil Corporation; Monsanto; Texas Paper Industry; Fina Oil and Chemical Company; Greater Houston Partnership; and GATX Terminals Corporation. Amoco Oil Company, Exxon Company U.S.A. (Exxon-Baytown), and Diamond Shamrock supported the comments by TMOGA. Ethyl Corporation; Dow Chemical Company; Amoco Chemical Company; Holnam Texas Limited Partnership; and ASARCO Incorporated supported the comments by TCC. A total of 26 commenters supported the proposed concept of separating the federal operating permit from the new source review permit and three commenters were opposed to the concept. Amoco Chem, Pennzoil, and Marathon supported the use of General Permits as proposed by the staff. Marathon, TMOGA, and Mobil supported the staff's concept on addressing grandfather sources in the context of the rule. Mobil and Pennzoil supported the staff's concept of the application shield. Pennzoil commented that the definition of emission unit is an improvement, as far as clarity, on the federal definition. Enserch and Mobil supported the definition of major source as proposed by the staff. Under the definition of major source, subparagraph (B), GPA and Lone Star supported the exclusion of fugitive emissions in non- listed source categories. The proposed rule preamble solicited comments on a permit shield which is an optional feature of the 40 CFR 70 program and which Texas has chosen not to include in its program. A total of 28 comments were received on this issue with 20 in favor of the shield and eight opposed. There were seven written responses to a list of 15 questions relating to the permit shield that were included in the rule preamble. A new sec.122.152(d) (Notifications of TACB and Others) has been added to provide for notice to the agency of publication of public notice and to provide consistency with other public notice requirements. AOGC, Pennzoil, and Chevron Production commented that the proposed rule does not incorporate all of the federal requirements from 40 CFR 70, including those pertaining to emissions trading and alternate operating scenarios. Marathon and TMOGA also commented that the final rule should encourage the use of alternate operating scenarios. 3M requested that the final rule allow anticipated operating scenarios to be identified in operating permits as required in 40 CFR 70. 3M commented that the final rule should authorize emissions caps for each site, if requested, and allow emissions trading within the site. 3M suggested language for two new subsections under sec.122.141 to allow for both these changes. The staff recognizes that both emissions trading and alternate operating scenarios were included in 40 CFR 70. The staff designed the proposed operating permit program (permit content and scope) to allow such changes provided that such changes do not affect an applicable requirement, and provided that Regulation VI and the Texas State Implementation Plan (SIP) allows such emission trading and alternate operating scenarios. Regulation VI does not allow for a facility to "trade emissions" without best available control technology (BACT) and an emissions impacts review. Nor does Regulation VI allow a source to vary its operating scenario, unless expressly allowed under an existing preconstruction authorization. The staff believes that both emissions trading and alternate operating scenarios are appropriately addressed under the current Regulation VI New Source Review (NSR) program. Union Carbide commented that the TACB's proposed interim approval was appropriate for the state. The commenter suggested that the maximum allowable control technology (MACT) determinations required under the FCAAA, sec.112(g) and sec.112(j) "not be implemented across all sources until they are formally covered by the (state's) complete/final program." The staff believes the responsibility to implement sec.112(g) and sec.112(j) is not restricted only to the time after the full program approval is obtained. The staff understands, based on guidance from EPA, that the sec.112(g) provisions (case-by-case MACT determinations, triggered by new construction, reconstruction, or modifications of major, named sources) of the FCAAA apply only to those sources for which a permit is required. This would mean the responsibility to apply for sec.112(g) MACT determinations would fall only to those sources required to submit permit applications under the interim program. All sources would be required to meet sec.112(g) requirements upon full delegation of the program. The staff has added sec.122.161(c) to reflect the effective date of sec.112(g). The omission of similar guidance concerning the sec.112(j) program by EPA is interpreted by the staff to mean that all sources affected by sec.112(j) will be required to apply for MACT determination regardless of their status under an interim program. The sec.112(j) program requires the states to make source category wide MACT determinations if the EPA fails to promulgate a standard according to a predetermined schedule. Since this program is not isolated to source by source determinations of a standard, as is the sec.112(g) program, basing source applicability determinations on the date a source becomes subject to the permitting program is not appropriate. The staff believes the MACT standards are intended to apply to all major sources covered by the sec.112(c) source category list. The responsibility of an individual source to abide by the standards is not a function of the applicability date of the permit program, but rather the applicability date of the standard. The staff intends to request delegation of the sec.112(j) program from EPA after the proposed sec.112(j) and sec.112(l) rules are promulgated. For those sources not covered by the interim program, sec.112(j) standards will be determined and administered by the state after delegation through sec.112(l). No change has been made to the proposal since this comment is outside the scope of this rule package. The staff believes these implementation issues are best addressed during rulemaking specific to these programs. All determinations will eventually become part of the permits issued under Regulation XII and adequate authority is provided in the proposed chapter. TMOGA commented that language should be added in the preamble or in a guidance document to indicate that the applicant can assign a numbering scheme to the emission units, if so desired. The commenter pointed out that this would allow for consistency with the current system used in emission inventories. The staff agrees with this suggestion but proposes to address it in the guidance documents, rather than in the final rule. Pennzoil requested that the staff develop and issue the General Application Form for Federal Operating Permit (referenced in sec.122.132(a)) as soon as possible. Natural Gas suggested that a standard permit application format be developed for the natural gas transmission industry in order to streamline the review process for both the industry and the agency. 3M recommended that the staff develop a "Permit Manual" to help applicants navigate through the new application and review process and stated that such a manual would greatly assist applicants in their efforts to comply with the regulations and conserve staff resources by acting as a practical reference for the regulated community. The staff agrees that well written and "user friendly" guidance documents and application forms are essential to the implementation of this program. The proposed timing of the program submittal to EPA is such that the forms will be among the final items submitted to EPA by November 15, 1993. The staff believes that it is extremely important to have clear and concise application requirements in the forms. Following the program submittal in November, the staff intends to develop further and more detailed guidance documents for the regulated community's use. TCC made suggestions for changes in writing style and capitalization of all defined terms throughout the regulation which do not alter the meaning of the proposed rules. Some of the suggested language will enhance the clarity of the final rule and this has been changed. Due to the large number of minor language changes requested such as punctuation and capitalization, the staff does not note in the comments each minor change recommended in the final rule. Other significant changes requested by TCC to the content of the proposed rule are noted in the comments. There are additional clarifications to the proposed rules. DuPont recommended the use of general permits to incorporate new applicable requirements at a site. TCC requested and suggested specific language in sec.122.143(1)(H) and sec.122.233(c) of the proposed rule describing this use. As was discussed at the roundtables, the staff does envision the general permits serving this function and the proposed version of the rule did allow for such use. However, since the staff cannot envision every possible use of these permits, the staff does not recommend narrowly defining their use in the final rules. Chevron Production requested that the staff clearly identify which fugitive emissions must be included in the Title V applicability determination and which must be addressed in the permit application. The staff believes that the first part of this comment refers to the definition of major source. In subparagraph (A) of the definition, no mention is made of any exclusion allowed for fugitive emissions. The staff understands, from EPA, that all fugitive emissions must be included in the determination of major under this subparagraph. The second condition of major in subparagraph (B) allows the exclusion of fugitive emissions except for the source categories noted. The third condition of major source in subparagraph (C) has been revised to allow, consistent with federal rules, the same exclusion noted in subparagraph (B). The staff intends to develop guidance documents to aid the applicant supplying the required information. The staff believes that these documents are the appropriate forum to address how the fugitive emissions should be included in the application. EPA commented that the final rule should specifically prohibit the use of variances under a federal operating permit program. The staff agrees with EPA's position that no variances may be issued from the requirements to obtain a federal operating permit. Therefore, a new subsection (b) has been added to sec.122.141. GPA suggested allowing concurrent NSR and federal operating permit reviews to facilitate a single public notification process. The staff recognizes that the situation posed by GPA may occur and concurs that efforts should be made to conduct a simultaneous review when circumstances permit. The staff believes that the final rule does not prohibit simultaneous review, however, such review may not always be possible. Therefore, no change to the rule language has been made. Rescar requested that changes which qualify under operational flexibility (sec.122.221) should not require permit amendments under Regulation VI. Revision of Regulation VI is beyond the scope of this proposal. The staff believes that the requirements of the current NSR program serve a valuable function in maintaining and improving the air quality in the state. The staff believes that the requirements of the NSR program should remain intact, and independent of the implementation of the federal operating permit program. One individual suggested the 30-day public comment period for each permit be extended an additional 30 days. The 30-day comment period is a statutory provision in the Texas Clean Air Act (TCAA), sec.382.0561. Section 122.316(2)(C) provides that if a hearing is requested during the public comment period, the comment period is automatically extended to the close of the hearing. The staff believes that the proposed comment period allows sufficient time for the public to comment on the permit application. EPA noted that, at this time, there is no final EPA policy on what constitutes an acceptable phase-in schedule for sources under an interim program. EPA further stated that the staff must provide any required information in the request for interim approval. The staff intends, in the program submittal, to provide compelling reasons for interim program approval by EPA. The staff will provide all information requested by EPA related to interim approval with the program submittal. One individual requested that the final rules require that a pollution prevention plan be developed and submitted with each permit application and that TACB should pressure EPA into an agreement with Mexico to develop a program similar to the federal operating permit program. Pollution prevention plans are not required under Part 70; consequently, this request is beyond the scope of this rulemaking. The staff agrees that pollution prevention is a worthwhile objective. However, the federal operating permits are intended to be codifying permits only, the program is not intended to address this issue. The second comment does not require any changes to the proposed rules and is beyond the scope of this rule package. One individual opposed allowing any general permits to be issued under the final rule. In support of this position, the commenter cited the staff's long held belief in case-by-case determinations. 40 CFR Part 70 sec.70.6(d) provides that general permits must comply with all requirements applicable to other Part 70 permits and the general permit must identify the criteria by which a source may qualify for such a permit. The staff does believe that the proposed utilization of general permits will result in efficient use of state resources to provide effective and enforceable permits. The general permits concept has many similarities to the Standard Exemption List which the TACB has administered for years. For these reasons, the staff is retaining the general permits, as proposed. TCC suggested changes to various sections of the proposed rule to make clear that the federal operating permit does not affect the ability to commence construction or modification of a facility, only the ability to operate the facility under certain circumstances. The staff agreed with the intent of TCC's suggestion and sec.122.161(b) is added for clarification. In addition to the testimony received, the staff has identified two areas where rule changes are necessary to ensure the smooth implementation of the new permitting process. First, the staff has added a new sec.122.152(d), relating to Notification of TACB and Others, to provide for notice to the agency of publication of public notice. The staff also noted during review of the comments that the proposed rules failed to make it clear that an owner or operator of a site which satisfies the criteria of sec.122.120, concerning Applicability, must not only apply for, but also obtain, a permit in order to operate. A new subsection (f) to sec.122.201, concerning Permits addresses this oversight. In the preamble of the proposed rule the agency requested comments from the public on 16 issues for consideration in determining whether or not to include a permit shield as an option in the Federal Operating Permit Program. A number of commenters who supported inclusion of the permit shield chose to respond to those issues. One commenter who opposed inclusion of the permit shield also responded to the 16 issues. Following this paragraph are the sixteen issues from the proposed rule and a brief summary of the commenters' responses. Should a permit shield as written in 40 CFR sec.70.6(f), or some variation of that permit shield, be part of the Federal Operating Permit Program in Texas? Generally, the commenters responded that the permit shield, since allowed by federal rule, should also be included in the state rule and consequently, the state program. As noted, one commenter opposed inclusion of the permit shield. Many of the commenters who supported the inclusion of a permit shield also noted that the permit shield should be included in order to provide the permittee protection from enforcement due to a reinterpretation of an applicable requirement by the permitting authority. How would enforceable regulatory language be written which would provide for a narrow permit shield (for example, for reinterpretation of an applicable requirement in the permit)? Overall, the commenters stated that the permit shield had been narrowed sufficiently during federal rulemaking. Several commenters stated that in general they did not support a permit shield which would allow the staff to reinterpret an applicable requirement, after a permit is issued and during its five-year term, without reopening the permit pursuant to the procedural requirements in the final rules. One commenter stated that it is unnecessary to define narrow language for a shield because proper operation is the only "shield" necessary. In what ways is a permit shield necessary to make a proper applicability determination? One commenter acknowledged that the existence of a permit shield in Texas is not necessary to make proper applicability determinations but noted that it would protect them from enforcement for reinterpretation of applicable requirements after permit issuance. Other commenters maintained that the availability of a permit shield offers an added incentive to industry to come forward with difficult applicability questions early in the permit application in order to obtain a permit shield for protection from enforcement when applicability determinations are reinterpreted by the staff subsequent to issuance of the permit. One commenter stated that a permit shield is not necessary to make a proper applicability determination. What additional planning certainty would the permit shield provide to the regulated community beyond what is currently available through proper applicability determinations? Generally, the commenters responded that the permit shield provides stability to the regulated community since it offers protection from enforcement due to reinterpretation of the applicable requirements by the staff or general public. The commenters believed that the permittees would be able to operate with a high degree of confidence that compliance with the permit will result in avoidance of enforcement proceedings, hence the permit would provide a credible base for business and compliance planning. One commenter stated that planning certainty is not the goal of the Texas Clean Air Act, protection of the clean air resources and public health is the goal. Proper plant operation, accurate permit information, and compliance will give planning certainty to the regulated community. A permit shield would only apply to the operating permit. Therefore, how would the permit shield be written such that it does not promote confusion over what applicable requirements are subject to enforcement because of their inclusion in other permits or regulations, even though they are shielded in the operating permit? The commenters were split in their opinions of exactly what would be shielded from enforcement action. Some commenters believed that the permit shield would provide protection from enforcement of the applicable requirement, regardless of whether the applicable requirement was in a permit or rule outside of the federal operating permit program. Other commenters believed that the permit shield would not extend to state only requirements. These commenters suggested that the permit must delineate which requirements are federally enforceable and requirements that are included pursuant to the state's authority. One commenter stated that to avoid confusion over enforcement, the staff should avoid writing a permit shield that some might construe as a defense against agency or public action against corporate abuse, nuisance, or health hazard even while operating under the terms of the permit since the permit may not be complete and may not be adequate to avoid impacts. Since the Operating Permit Program is being implemented as a separate program from the pre-construction NSR program in Texas, how would the permit shield be written in order to avoid enforcement inconsistencies in a two-permit system? Again, the commenters varied in their responses, depending on their opinion of how extensive the enforcement protection provided by the permit shield would be. Those commenters who believed that the permit shield would provide complete protection from enforcement of the applicable requirement acknowledged that inconsistencies could occur. However, these commenters believed that the inconsistency in enforcement would be resolved when the operating permit was modified to incorporate the NSR permit, at renewal of the operating permit, or when the staff reopened and revised the operating permit. Other commenters, who believed that the permit shield would shield only enforcement action under the operating permit, believed no inconsistencies would occur. One commenter stated that compliance with the representations in the permit application and the operating permit is necessary and noncompliance should be cause for agency action. How would the permit shield be written such that it would not interfere with the use of the operating permit as an enforcement tool? The commenters pointed out that the permit shield would offer no protection from noncompliance with the terms and conditions of the permit. One commenter stated that the operating permit is intended as an enforcement tool and all complicating interference, such as a proposed shield against enforcement, should be avoided. How would the permit shield be written to avoid inequities in enforcement between major sources that hold operating permits and minor sources that do not hold operating permits, and consequently could not use the permit shield? The commenters believed that the permit shield would not create inequities in enforcement between major and minor sources. The commenters noted that the staff would not target minor sources for enforcement based on a change in agency policy or regulatory interpretation. The commenters also pointed out that the major sources are subject to a detailed regulatory analysis as well as extensive monitoring and recordkeeping requirements, thus resulting in a higher degree of enforcement exposure for major sources. At least two commenters suggested that the permit shield concept be extended to minor sources and standard exemptions under Regulation VI. One commenter stated that to avoid inequities between major sources with operating permits and minor sources without operating permits the permit shield should not be adopted. How would a permit shield affect the filing of citizen's suits or affect enforcement actions taken by local governments and the Environmental Protection Agency? The commenters generally agreed that the permit shield would not affect the filing of citizen suits. The commenters believed that the protection offered by the permit shield is from enforcement action based on a reinterpretation of an applicable requirement. One commenter stated that compliance and good corporate behavior are the best "shield" and corporate abuse of permit language to the extent that public or agency action is indicated should not be impeded in the protection of the clean air resources by some narrowly written protection of a "shield." What mechanisms would be available to correct misapplication of the permit shield and provide timely compliance with applicable requirements? The commenters suggested that the compliance with the correct applicable requirements could be insured through any of the following: an agreed order, reopening, and revision of the permit, or at renewal of the permit. One commenter stated that it would appear that there would be no effective mechanism to correct misapplication of a permit shield. The same commenter also noted that there could be unforeseen health impacts or nuisance conditions without legal remedy, a result clearly not in the public interest. How would the permit shield be written such that it would not significantly slow or affect review of operating permit applications and subsequent issuance? The commenters generally believe that the permit shield would provide protection against later reinterpretations of the applicable requirements. This, the commenters stated, would encourage a more thorough regulatory review of the application by the agency prior to issuance of the permit. The commenters also noted that the staff may require additional information needed for the application review to be submitted in a timely manner consistent with the 18- month review period. One commenter stated that the inclusion of the permit shield might make the permit reviewer more cautious and slow permit issuance since there would be less opportunity to take action to correct a permit that allowed a condition of pollution to occur. How would the benefits of the permit shield outweigh the resource requirements on the part of the State to implement the permit shield? The commenters, for the most part, did not believe that a resource limited environment should prevent implementation of the permit shield as an option in the program given the degree to which the program will be funded through the emission fees. The commenters also stated that the benefits of a more thorough regulatory analysis would far outweigh any additional cost to the program. One commenter stated that there are no perceived benefits to the state or the public from the inclusion of a permit shield in the final rule. How would the permit shield be written in order to encourage thorough applications by the regulated community? In general, the commenters supported the language in the federal rule for use in the final rules. Again they stated that such use would create a strong incentive for the applicant to supply a thorough and complete application to the staff. One commenter stated that it is likely that a more complete and accurate application will be submitted if there is no shield against future enforcement. How would the permit shield be written such that the responsibility for applicability determinations remains with the regulated community? The commenters indicated that the permit shield will not influence the regulated community's responsibility concerning applicability determinations. Rather, it will insure that the burden is on the applicant to come forward during the review and identify questions regarding the applicability of the requirements. The commenters noted again that granting a permit shield will not prevent the agency from reviewing the basis for such grant and revoking the permit shield through a reopening and revision of the permit, if appropriate. One commenter stated that the applicant will take more care and more responsibility with the permit if he realizes that he is not shielded from enforcement action for impacts from his facility. What mechanisms, other than a permit shield, could provide for equitable protection in enforcement due to changes in interpretation of applicable requirements? The commenters had several suggestions for other mechanisms for addressing this issue. One commenter suggested that the enforcement rules be revised to address enforcement subsequent to a new interpretation of an applicable requirement. Another commenter suggested that protection from enforcement in this situation could be addressed in a formal agency enforcement policy. And one commenter suggested that no changes be made in the interpretation of the applicable requirements during the permit term unless the permit goes through the procedural requirements of reopening, including notice and comment procedures. One commenter stated that the Board has always taken a responsible course in its dealings with industry in the past and any need for a permit change would be based on justified health or nuisance impacts and not engender enforcement action unless egregious corporate behavior occurred. Please consider other issues that are germane to the implementation of a permit shield in the operating permit program. One commenter stated that protection of public health concerns is more important than protection of a business right to pollute the air. Several commenters also suggested language regarding the permit shield for the final rules. Their proposed language, for the most part, had the same intent and was at least as broad as the language regarding the permit shield in the federal rule. The commenters who opposed the permit shield believed that industry should be held responsible for operations at their sites and to allow otherwise is contrary to the public interest. TCC suggested a new section, sec.122.166, to reconcile the various positions discussed on the permit shield issue during the roundtables held on the draft Regulation XII. The staff reviewed carefully all the comments regarding the permit shield. The staff does not agree with all the comments provided by the commenters supporting inclusion of the permit shield on each of the 16 issues. The staff does agree with a number of commenters who believed that the regulated community should not be shielded from responsibility for their operations and emissions. However, based on the analysis of the comments, the staff does not believe that the commenters who support inclusion of the permit shield are necessarily requesting such protection. Rather, it appears the commenters who support inclusion of the permit shield are requesting some assurance, in the final rules, of the consistency, certainty, and validity of staff interpretations of the language of the applicable requirements upon which applicability determinations can be made in permit applications. The staff agrees that it is the appropriate responsibility of the agency to provide interpretations of regulatory language and believes that one of the functions of the operating permit program is to provide such interpretations. Therefore, sec.122.145 (Permit Content Requirements) has been revised to include a subsection (e) which allows for interpretations of specific language and the definition of specific terms in an applicable requirement to be attached to the permit. Thereafter, those interpretations may not be modified and subsequent enforcement action taken until the permittee is notified and the permit revised. This subsection serves the dual purpose of insuring consistent and certain interpretations of the language of the applicable requirements by the staff and providing consistent and timely compliance for the regulated community. At the same time, the regulated community retains responsibility for their operations and emissions. Marathon, TMOGA, Amoco, Exxon Baytown, Ethyl, DuPont, and Chevron supported the definitions of grandfather sources and the methods outlined to establish grandfather rates. Eight individuals stated that grandfather facilities should be permitted at their existing emission rates and not in excess of their verified historical production rates. The staff agrees and believes the procedures outlined in the proposed rules provide for the concerns raised by the commenters. The proposed rules require the applicant to propose an actual grandfather rate or a presumptive grandfather rate for each grandfather emission unit. The actual grandfather rate, as defined, would limit the emission unit to the maximum annual emission rate or parameters that are related to emissions (e.g., production, fuel firing rate, throughput, sulfur content, etc., as appropriate) at which the emission unit actually operated and emitted prior to September 1, 1971, for 12 consecutive months. The staff believes this approach satisfies the commenters' request of only allowing the units to emit or operate at their verified historical production rate. The presumptive grandfather rate will seek to establish a grandfather rate that as closely as possible reflects the actual grandfather rate. The staff review involves the determination of the reasonableness of the information provided to establish the actual grandfather rate or the presumptive grandfather rate. If the information is determined to not reflect grandfather rates, additional information may be requested or alternate procedures may be required for establishing the grandfather rate. The establishment of a grandfather rate shall not affect the requirement that any facility must operate in compliance with all TACB rules and regulations including 31 TAC Chapter 116. Pennzoil suggested that approval of rates for grandfathered facilities should be made at the regional office level. The staff believes that this is an appropriate function of the application review process and approval should remain a central office function. The regional office will be involved at the request of the central office in conducting the application review. Jones-Day questioned why the establishment of grandfather levels was being undertaken in the Title V operating permit program. It is their opinion that establishing grandfather rates and units are applicable only to Regulation VI permits. Since Regulation VI permits and Title V permits are to be separated into a dual permit system, they believe that TACB should deal with the grandfather issue in the context of Regulation VI, or combine new source review and Title V into a single permit system. This issue was discussed at the roundtables and there was general agreement to establish grandfather rates in the proposed rules. The staff does not believe that it is necessary to have a single permit system to address the grandfather issue in the operating permit. Therefore, the grandfather rules will be retained as proposed. SPSC commented that limiting grandfathered units to maximum emission rates based on known or approximated actual, historical emissions is an unconstitutional taking of property and a contradiction of legislative intent. The TCAA, sec.382.0518 requires a construction permit for any person who constructs any new facility or engages in the modification of any existing facility which may emit air contaminants into the air. The staff agrees that stationary sources that existed prior to August 30, 1971, and that met the requirements of now repealed sec.382.060, were not required to obtain a permit from the TACB at the time the TCAAA were amended to provide permitting authority to the TACB. However, the staff disagrees with the commenter that those sources that met this criteria were allowed to operate at full design capacity if they had not previously operated at that level. Regulation VI established an effective date of September 1, 1971, for registration of new or modified sources. March 1, 1972, was the effective date for requiring a permit for construction of new or modified sources. If a source needed to increase its operating capacity on or after March 1, 1972, the source was, and is, required to obtain a construction permit from the TACB. The TCAA, sec.382.003(a) defines a "modification" to be "any physical change in, or change in the method of operation of a stationary source which increases the amount of any air pollutant emitted by such source into the atmosphere or that results in the emission of any air pollutant not previously emitted." The definition of "modification" set a regulatory limit on a facilities operation and any physical change or operational change which results in a significant increase in emissions requires such a facility to obtain a TACB permit pursuant to sec.382.0518(a). The staff also disagrees that the longstanding interpretation of grandfather rates constitutes an unconstitutional taking of design capacity. The definition of "modification" clearly indicates that any changes to the method of operation that result in a significant increase in air pollutants or result in the emission of a new pollutant will require a permit. The staff does not agree that the Regulation XII requirement for establishing grandfather rates is a "taking of property." Any activity that meets the criteria of a "modification" is merely required to undergo a TACB Regulation VI preconstruction permit review. Chevron Production and Union Carbide stated that the presumptive grandfather rate procedure should provide amnesty for any company found in violation of 31 TAC Chapter 116. This issue was discussed in the roundtables and the staff agreed to the establishment of presumptive grandfather rates in addition to actual grandfather rates to address the concerns of the regulated community regarding the impact of the final rule on potential enforcement actions. Therefore, staff has not added any provision to the final rule to grant amnesty for any violation of Chapter 116 or any other chapter of this title. EPA and SPSC commented that Kansas or Colorado could fall under the definition of affected states since both those states are within 50 miles of a Texas border. Exxon Chem and Exxon Baytown recommended that the term be more narrowly defined as a state whose air quality is affected to the extent that a Prevention of Significant Deterioration (PSD) increment may be exceeded. The staff agrees that Kansas or Colorado could potentially be affected states and recommends their inclusion on the list of potentially affected states in the affected states definition. Limiting the right of an affected state to comment on a permit application is prohibited by 40 CFR 70; consequently, the staff has not incorporated the second revision. Chevron Production commented that the staff has exceeded the requirements of 40 CFR 70 by defining under air pollutant, in sec.122.010, all pollutants listed under Title I of the Act, sec.112(b) or sec.112(r), rather than those pollutants listed under Title I of the Act, sec.112(b) or sec.112(r) and which are also subject to a standard covering a specific source category. EPA commented that the definition was not complete since subparagraph (F) did not specifically reference the Act, sec.112(g) or (j). EPA stated that potentially some pollutants regulated under Title I of the Act, sec.112 would not fall under the proposed definition. HL&P suggested modifying subparagraph (E), to allow for an EPA determination that Title VI requirements need not be contained in a federal operating permit. The staff agrees with Chevron Production and the definition of subparagraph (F) has been revised to reflect the requirements of 40 CFR 70. The staff points out that subparagraph (F) of the definition does reference the Act, sec.112(b) which lists all pollutants regulated under the Act, sec.112(g) or (j). Subparagraph (E) has been revised to allow for such an EPA exclusion through future rulemaking. EPA made the following comments on the definition of applicable requirement. First, under subparagraph (A), EPA stated that the specific references to the Texas SIP approved chapters are incorrect. EPA recommended that all references to specific state rules be deleted and the final rule just reference the SIP in general terms. Secondly, under subparagraph (B), EPA commented that references to Part C and Part D of Title I of the Act should be deleted. Finally, under subparagraph (L) of the definition, EPA suggested that the final rule should not explicitly state that the National Ambient Air Qualify Standards (NAAQS) are not applicable requirements. The TCC and DuPont recommended revising subparagraph (B) in order to clarify which preconstruction permits are applicable requirements under the final rule. Pennzoil commented that the language in subparagraph (A) in the definition clarifies the SIP requirements which may be applicable to a facility. Pennzoil supported such clarity in that it will enhance both compliance and enforcement of the final rule. HL&P, SPSC, and Pennzoil noted an apparent publishing error in subparagraph (D). Pennzoil requested that the error be corrected according to the printed copy of the proposed rule distributed by the staff. TCC commented that subparagraph (F) should be deleted since the proposed rule, in effect, would be adopting by reference various EPA rules that have not yet been promulgated. This would, TCC commented, constitute an unconstitutional delegation of TACB's rulemaking powers. TCC made the same comment on subparagraphs (A)(ii) and (B) in the definition of major source, as well as in other sections. TCC suggested that, to allay EPA's concerns about "failure to adopt future rules", the agency should make a commitment in the submittal package to EPA to initiate rulemaking at such time as EPA initiates its rulemaking. In the staff's opinion, this definition forms the cornerstone for the federal operating permit program. The staff believes that the regulated community and the general public must have available a detailed and understandable list of the state and federal requirements which are applicable requirements under this program. To accomplish this goal, the staff has delineated, very carefully, the specific applicable requirements under this program. The staff believes that the proposed definition in the final rule meets the requirements of 40 CFR 70, and therefore, the changes suggested by EPA will not be incorporated. In the interest of clarification the staff has made the change in subparagraph (B) suggested by TCC and Dupont. The error noted by HL&P, SPSC, and Pennzol was apparently a printing error and does not appear in the final rule. 40 CFR 70 requires that the state submit a program that, at a minimum, assures adequate authority to issue permits in compliance with all the requirements of Title V of the Act and of 40 CFR 70 (including any requirements established pursuant to the Act, sec.504(b) or sec.114(a)(3)), all applicable requirements of Title IV of the Act and regulations promulgated thereunder, and all applicable requirements of Title I of the Act. Should EPA promulgate any later requirements, the staff will conduct any required rulemaking to implement such rulemaking. 40 CFR sec.70.10 provides for sanctions if the state fails to submit an approvable program. Therefore, the final rule provides for adequate authority as required by 40 CFR 70 and there will be no changes with regards to these comments. TCC commented that the definition of deviation was too vague to be implemented in the real world. TCC suggested that the definition be clarified and that the definition reflect compliance with applicable requirements rather than permit requirements. The staff agrees that the definition should reflect compliance with an emission limitation or standard rather than a permit requirement and has made such change. However, the staff disagrees with the proposed clarification which would, in effect, limit the definition of deviation to actual violations of the emission limitation or standard. This inappropriately places the permittee in the position of determining its own violations, rather than the regulatory agency. The definition has been revised to track the definition of deviation in the draft of the proposed 40 CFR 64. DuPont recommended that the definition of emission unit be rewritten to allow grouping of emission points into emission units. TCC recommended that the definition of emission unit be rewritten to allow several emission units to be assigned a single emission unit number. EPA requested that the definition unit be clarified with regard to fugitive emissions. The staff agrees with these comments insofar as similar emission units could be grouped together in the application as long as the applicable requirements and the permit requirements are the same for each permit unit in the grouping. The staff has grouped the similar emission units together under sec.122.132 (regarding Application and Requirement Information), rather than rewriting the definition. The staff has clarified the definition to comply with EPA's request. One individual requested that the term "reasonably" be defined in the definition of fugitive emissions. The definition of fugitive emissions in Regulation XII closely tracks the definition in 40 CFR sec.70.2. Therefore, there will be no change to the definition. Chevron Production and EPA commented that 40 CFR 70 limits inclusion of fugitive emissions to those belonging to "those air pollutants that have been regulated for that category," which is more explicit than the sec.122.10 definition of major source which simply includes, under subparagraph (B)(xxvii) , those fugitive emissions for sources in a stationary source category. They suggested listing those categories of stationary sources that will include fugitive emissions in the determination of whether a source is major. 3M recommended that the definition of major source be rewritten to allow the exclusion of all emissions resulting from research and development/laboratory operations. The staff agrees with Chevron and EPA; however, the Administrative Procedure and Texas Register Act (APTRA) does not allow any change in the proposed rule that is more restrictive. Therefore, the proposed language has been retained under subparagraph (B)(xxvii). The Board agrees with 3M's concern about research and development operations and addressed this by allowing a separation for these facilities in the definition of site. In subparagraph (C) of the definition of major source, EPA and Pennzoil noted that no provision had been made to include major sources in nonattainment areas designated after adoption of the final rule. EPA commented that the oil and gas exclusion in subparagraph (D) can only be used for the purpose of determining whether a Title III source is major. Pennzoil requested that the term "associated equipment" used in subparagraph (D), be specifically defined in sec.122.10 of the final rules. Pennzoil included suggested language for the definition. An individual was opposed to the oil and gas exclusion in subparagraph (D). Lloyd-Gosselink commented that subparagraph (A) should specifically state whether fugitive emissions are to be included when determining whether a site is a major source and requested that the fugitive emissions of hazardous air pollutants not be considered in that determination. The staff agrees with the commenters and has revised the definition to include major sources in nonattainment areas designated after adoption of the final rule in subparagraph (C)(i). The staff has clarified subparagraph (D) to comply with EPA's comment. Since the staff cannot envision every possible piece of equipment that might qualify under this term, Pennzoil's suggested revision to subparagraph (D) is not included. The staff notes that the oil and gas exclusion in subparagraph (D) is part of the Act, sec.112. Further, the staff agrees with the intent of the exclusion, which is to eliminate the applicability of emissions which are located at such a distance from the site as to have virtually no impact on the area surrounding the site. The definition of major source in 40 CFR 70 which corresponds to subparagraph (A) does not allow any exclusion for fugitive sources. The exclusion of the fugitive emissions noted in the previous comment would potentially allow the exclusion of a major source and thus is prohibited by the federal rule. The revision suggested by Lloyd-Gosselink is not included. The staff will consider writing General Permits for these type of facilities. EPA proposed minor language changes in order to clarify the definition of both proposed permit and site. The definitions have been clarified to comply with EPA's comments by replacing an incorrect reference in the definition for proposed permit and adding "under common control" after "persons" in the definition for site. Small-Craig commented that the definition of preconstruction authorization should refer to Chapter 120 (relating to certain solid and hazardous waste management facility units) where appropriate. The staff agreed that preconstruction authorization should refer to Chapter 120 and also to Chapter 121, and has changed the definition of preconstruction authorization. DuPont commented that the definition of relevant emission unit should be revised to allow the exclusion of insignificant activities as listed in 40 CFR 70. 40 CFR 70 provides for defining insignificant activities in the states' program; however, it is not a requirement of 40 CFR 70. The staff has studied the merits of using insignificant activities as allowed under 40 CFR 70. The staff takes the viewpoint that attempting to include in the final rule all activities which would qualify as insignificant is not practical, considering the variety of activities at the sites. The staff chose, instead, to eliminate certain activities at a site by the determination of whether the emission units involved are "relevant," which means, is the emission unit subject to one of the applicable requirements? This approach is consistent with the intent of the program and limits the number of activities and emission units requiring review at each site. This definition is retained in the final rule as originally proposed. An individual was opposed to using 1980 dollars in the subparagraph (A) of the definition of responsible official. The commenter suggested that 1992 dollars be used. Pennzoil requested that the staff clarify the definition to indicate that affected sources refers only to acid rain sources. The definition in the proposed rule is identical to the definition of responsible official in 40 CFR 70. The staff does not believe it is appropriate to deviate from the federal definition and the language in subparagraph (A) has been retained. Affected source is a defined term in sec.122.12 (Acid Rain Definitions); throughout the proposed rule, affected source is used only as defined in the definition. Consequently, Pennzoil's suggested change has not been incorporated. TU and TMOGA commented that the stationary sources included in the definition of site should be limited to those belonging to a single major industrial grouping. To support their position, TU and TMOGA cited consistency with 40 CFR 70, and the federal permitting programs. The TU and TMOGA also proposed language to accomplish the change. The staff believes that a great deal of confusion would be created in attempting to sort out which emission units belong or support a particular major industrial grouping. The integrity of the site as far as applicability under the final rule has been maintained. DuPont recommended that the definition of state only requirement be rewritten to address whether the state only requirement is an applicable requirement under the final rule. EPA commented that the reference to the federal operating permit program should be deleted from the definition. The staff agrees that the portion of the proposed rule noted as a state only requirement was not intended to be an applicable requirement under the proposed rule. The staff has revised the definition to clarify that applicable requirements are not state only requirements. The staff agrees with EPA and has revised the definition to delete the reference to Federal Operating Permits. EPA suggested that the definition of Title I modification be deleted from the final rule. In order to promote a general understanding of the program, the staff has attempted to present the requirements of the federal operating program as clearly as possible in the proposed rule. The staff believes that the meaning of Title I modification is subject to misinterpretation and the term will not be deleted. Pennzoil and SPSC commented that in an apparent misprint, the Texas Register version of the proposed rule combined the definitions of Title I modification and stationary source. The error noted was apparently a printing error and does not appear in the final rule. GSU, LCRA, SPSC, TU, El Paso, CP&L, and HL&P commented that the grandfather definitions in sec.122.11 would make it very difficult for them to operate their electric grandfathered generators in the manner that is often required to meet peak electrical demands or to respond to major electrical outages in the power grid. They stated that the units are designed with a maximum power generation potential and while the use of full potential may not have been required prior to September 1, 1971, the unit and/or units may currently be operating at much higher levels than any level of operation prior to September 1, 1971, and it would be impossible to drop back to the pre-1971 operational level. This issue was also raised in the roundtables held on the draft Regulation XII. The staff responded to these issues by conducting two separate meetings with the electric utilities to discuss the issues raised during the roundtables and the issues commented on during the public comment period of the rulemaking procedure. The first meeting was conducted on May 25, 1993, and the main topic of discussion centered on the operational strategies employed by the utilities during different seasonal peaks and emergencies. At this meeting, a revised definition for actual grandfather rate was presented to the staff for consideration. The problem, as defined, was limited to electric utilities and most of the units involved would be required to obtain an acid rain permit under 40 CFR 72 as a part of a federal operating permit. The staff revised the definition proposed by the electric utilities at the May 25, 1993, meeting and distributed the revised definition to each utility by letter dated June 30, 1993. Another meeting was conducted on July 14, 1993, to consider a final definition. During this meeting a final definition was agreed upon by the parties involved. Therefore, the staff has included a definition for actual grandfather rate for electric utilities in Subchapter E (Acid Rain) of the final rules. The final definition, contains the term "Maximum Continuous Rating." This term has been added to the definitions in sec.122.12 (Acid Rain Definitions) as "The heat input required to attain the maximum documented steam condition or to achieve the maximum documented electrical output." Sierra commented, in sec.122.11 (Definitions), that the actual grandfather rate should be defined as "the emission rate, production rate for today, supported by accurate historical data to support the representations made by the applicant." The staff agrees and believes the procedures outlined in the proposed rule provided for the concerns of the commenter. The proposed rule requires the applicant to establish for each grandfather emission unit an actual grandfather rate or a presumptive grandfather rate. The definition for actual grandfather rate, as proposed, is consistent with established policy for defining grandfather rates. The proposed grandfather rate is subject to review by the staff at the time the application is submitted. Section 122. 132(a)(5)(B)(ii) provides for review of an actual grandfather rate representation and allows for the staff to require revisions to the application if the representations for an actual grandfather rate do not appear to be correct. The staff may also require the determination of a presumptive grandfather rate in lieu of an actual grandfather rate. Section 122.132(a)(5)(E) states that establishment of the presumptive grandfather rate does not remove any liabilities or potential enforcement action for past or future exceedances of the actual grandfather rate in violation of 31 TAC Chapter 116. In addition, the revised definition for presumptive grandfather rate makes it clear that regardless of grandfather rates compliance with all rules and regulations of the TACB including Chapter 116 is required. Therefore, the proposed methods of establishing the grandfather rates will remain in the final rule with only minor clarifying changes made in sec.122.132 rather than in the definitions. AOGC, DuPont, and TCC suggested language changes to the definition of grandfather facilities to clarify the terms. There are minor revisions to the first three definitions in sec.122.11 to clarify the definitions. EPA suggested that all definitions contained in 40 CFR sec.72.2 or, at a minimum, the definitions contained in the Model Acid Rain Rule be incorporated by reference. Section 122.411(b) has been revised to clarify that the final rule incorporates all of the Acid Rain Rules, including the definitions, by reference. Chevron Production requested that the staff formally exempt in sec.122.120 of the proposed rules all non-major sources until EPA, as outlined in 40 CFR 70, removes any non-major source type from exemption. DuPont made the same request for a specific category of non-major sources. TCC requested that the final rule contain the specific source category exemptions identified in 40 CFR 70. The staff has no objection to the final rule noting the general exemption of the non-major sources allowed under 40 CFR 70 and the change has been made. However, the staff finds it redundant to list each specific source category exemption. TU requested that the final rules mirror 40 CFR 70 and specifically state, in sec.122.120 (Applicability), that a source is not required to obtain a permit solely because it is subject to regulations or requirements under the Act, sec.112(r). The staff agrees that it is appropriate to narrow the list of non- major sources which may be brought under the final rule through further EPA rulemaking, and this change has been added as sec.122.120(4)(B). EPA noted that sec.122.120 does not provide for the applicability of non-major sources which, as a result of rulemaking by EPA, are no longer exempt from the obligation to obtain a federal operating permit. EPA further noted that applicability of solid waste incineration units had not been addressed in the proposed rule. The staff agrees with both comments and sec.122. 120 has been revised to acknowledge the applicability of solid waste incineration units and the potential applicability of non-major sources. Pennzoil recommended that in order to clarify that the certified registrations discussed in sec.122.122 of the proposed rules will be a means to limit a site's potential to emit, the staff should either define in sec.122.10 the term "certified registration," or reference sec.122.122 in the definition of potential to emit. The intent of sec.122.122 (concerning Potential to Emit) is to allow federally enforceable emission limits at a site in order for the site to limit its potential to emit. The staff understands the concerns of the commenter and clarifications have been made to sec.122.122. Chevron Production noted that sec.122.122 (Potential to Emit) would allow federally enforceable limitations on a source's potential to emit. TCC and DuPont suggested rewriting this section to clarify both the federal enforceability of the registrations and the source's ability to lower the emission rates even below past operational rates. Section 122.122 has been revised to clarify that the registrations are federally enforceable. Regarding the emission rates, in the proposed rule no lower limit was placed on the emission rates listed in the registrations. This issue will not be addressed to any greater extent. An individual requested that under sec.122.122 all upsets, releases, spills, etc. be included in the certified registration of emissions, and only so many per year allowed. Emissions from upsets, releases, and spills are not included in calculating a site's potential to emit as defined in the federal rules. Therefore, this section has been left intact with regard to this comment. Situations regarding upsets are addressed under TACB Chapter 101. EPA commented that sec.122.122 must be incorporated into the Texas SIP in order for those certified registration of emissions, proposed under sec.122.122, to be federally enforceable. The staff intends to submit to EPA, as a SIP revision, the adopted version of sec.122.122. Exxon Chem recommended that sec.122.122(b) apply only to those emissions which fall under an applicable requirement. The intent of the proposed section is to establish a federally enforceable emission limit for the entire site to determine applicability of the final rule. Regardless of whether an applicable requirement exists for a particular pollutant at that site, applicability will be determined on the basis of whether any air pollutant is emitted at rates defined as major. Therefore, staff has not placed any further limitation on the type of emissions included in the registration. However, the staff has added sec.122.122(d) to clearly place the burden on the applicant to insure that the registration adequately limits the site's potential to emit. An individual requested that sec.122.122(d) be rewritten to require registration to be kept at the site and to maintain constant accessibility of the registration. This issue was discussed at the roundtables, where the staff was reminded that many of the sites which may maintain these registrations are in remote locations and without a physical structure available to house the registration. The staff agreed that allowing access at an agreed location is sufficient for enforcement and compliance purposes. AOGC commented that the proposed interim application submittal schedule in sec.122.130 does not track the federal requirement such that one-third of the applications for those sources received during the interim program may be either approved or disapproved in the first year of the interim program. The staff disagrees with this comment and believes that one-third of the permits in the interim program will be issued under the proposed schedule in the first year after program approval from EPA. Chevron Production commented that the proposed interim application submittal schedule in sec.122.130 imposes a significant burden on the smaller sources. Chevron Production requested that the staff consider other options for scheduling the application submittal. This issue was discussed at the roundtables and general understanding for the proposed schedule was reached. In determining which sources to pull into the interim program, the staff considered a number of options including delineating sources by SIC codes, counties, attainment/nonattainment areas, and complexity of the source types. The staff believes that the schedule proposed in the final rule allows the most reasonable utilization of resources on the part of both the state and private sector. HL&P recommended staggering the issuance of the Title IV Acid Rain Permits in order to best utilize staff resources both in the TACB and in the regulated community. The commenter recommended allowing a 12-month application schedule for all sources subject to the final rule. The proposed rule provided for as much flexibility as possible while still assuring EPA that applications will be submitted in sufficient time to allow for issuance of one-third of the permits in the first year as required in 40 CFR 70. In order to meet the mandatory permitting deadlines in the federal Acid Rain Rules, the staff believes it is necessary to call the affected sources in as quickly as possible and opposes the suggested change. Natural Gas requested that the natural gas transmission industry be given 18 months under the interim application submittal schedule in sec.122.130(b) to submit all applications. 40 CFR 70 requires all applications under both the interim and full program to be submitted no later than 12 months after each approval date. TCC, DuPont, ENRON, Pennzoil, TMOGA, and Dow recommended that sec.122.130 be rewritten in order to clarify the intent of this section. SPSC commented that sec.122.130(b) appears contradictory in that all affected sources are required to submit applications with six months of the effective date of the interim program and are also required, in sec.122.130(b)(1)(B)(iii), to submit 10% of any applications belonging to an owner/operator within six months of the same date. Exxon Chem suggested changing sec.122.130 (Responsibility to Apply) to clarify the use of preconstruction authorization as a trigger date for permit applications. In light of the number of requests for clarifying changes, the staff has written sec.122.130 solely for the purpose of clarifying those requirements contained therein. Small-Craig commented that the interim approval approach for the permitting program leaves the effective date of the sec.112(g) case-by-case MACT determination requirement in doubt. This commenter suggested that sec.122.130(b) be revised to reflect that the sec.112(g) requirements apply only to sources required to submit permit applications under the interim program. Consistent with guidance from the EPA, the staff believes the Act, sec.112(g), provisions (case-by-case MACT determinations, triggered by new construction, reconstruction, or modifications of major, named sources) should apply only to those sources for which a permit is required. This would mean the responsibility to apply for sec.112(g) MACT determinations would fall only to those sources required to submit permit applications under the interim program. All sources would be required to meet sec.112(g) requirements upon full approval of the program by EPA. Section 122.161 has been revised to reflect the effective date of sec.112(g). TU requested that the applicability date in sec.sec.122.130(d), 122.133(a), and 122.163(b) be changed to the date the site commences operation, rather than the issuance or approval date of the preconstruction authorization. This issue was discussed at the roundtables, where the participants could not develop a definition identifying the commencement of operation. Consequently, the consensus appeared to be tying the applicability date to a readily identified action such as permit issuance. The staff still supports this concept. Chevron Production, 3M, and DuPont requested that the staff list, in sec.122. 132, insignificant activities which the applicant need not include in the application and also, as allowed in 40 CFR 70, list emission limits below which the applicant need not quantify emission levels. The staff has studied the merits of using insignificant activities and emission limits as allowed under 40 CFR 70. The staff takes the viewpoint that attempting to include in the final rule all activities or emissions which would qualify as insignificant is not practical, considering the variety of activities and emissions at the sites. The staff chose instead to eliminate certain activities at a site by the determination of whether the emission units involved are "relevant," which means, is the emission unit subject to one of the applicable requirements. This approach is consistent with the intent of the program and limits the number of activities and emission units requiring review at each site. The proposed language in the final rule will be retained. EPA commented that sec.122.132 is written too narrowly and should instead mirror 40 CFR sec.70.5(c). EPA suggested such changes in two subsections of sec.122.132. The staff believes that sec.122.132 (Application and Required Information) should broadly outline the information required in the federal rule and give the staff the authority to require such information. This suggestion would be more appropriately addressed in the application forms and the guidance document which will follow, more narrowly, the requirements of 40 CFR sec.70.5(c). AEA and TI commented that certain emissions units should be combined for the purposes of proposing monitoring, recordkeeping, and reporting protocol, as required under sec.122.132(a). The staff has no objection to combining similar emission units which have the same applicable requirements. Section 122.132(a)(1) has been revised. DuPont commented, in sec.122.132(a), that the applicable protocol should be submitted rather than a proposed protocol. The staff believes that, particularly in the case of the new monitoring, recordkeeping, and reporting requirements under 40 CFR 70 and 40 CFR 72, the permit engineer should review the proposed protocols. TCC and TMOGA suggested that, rather than request a proposed protocol for each emission unit, the language in sec.122.132(a) should be modified to ask for proposed protocol as required for each emission unit; thus implying that some relevant emission units would not be required to submit some or all of the protocols referenced. Marathon commented that sec.122.132(a) should be rewritten to clarify the fact that not all relevant emission units at a site require monitoring, testing, recordkeeping, or reporting conditions in the permit. Although the federal rule allows recordkeeping to substitute for monitoring in some cases, 40 CFR 70 does require monitoring, recordkeeping, and reporting requirements for each relevant emission unit. Consequently, the suggested changes are prohibited by the federal rule. An individual requested that the term "relevant" be removed from sec.122. 132(a)(2), stating that all emission units are relevant. Relevant emission unit is a defined term in the proposed rule. The term "relevant" refers only to whether any applicable requirements apply to that unit, not to the relative value or importance of the unit at the site. AOGC commented that sec.122.132(a)(5)(A) does not provide for determining emissions limitations as required for compressor engines regulated under TACB Standard Exemption 6. AOGC recommends that a procedure similar to that for grandfather units be used to establish emission limitations. The engines or engine trains installed under Standard Exemption 6, referenced by AOGC, were apparently installed in accordance with applicable provisions of Regulation VI, and therefore, appear to be in compliance with the Standard Exemption as it existed at that time. The units are not grandfathered and cannot utilize the procedures for presumptive grandfather emission units. However, Regulation VI provides for establishing federally enforceable emission limitations for standard exemptions. Also, for determining the applicability of the federal operating permit program, stationary sources without other federally enforceable emission limitations may limit their potential to emit by maintaining a certified registration of emissions. Therefore, the staff believes that the rule will adequately address AOGC's concerns. DuPont commented that sec.122.132(a) requires the submittal of too much information, some of which could be supplied through other agency programs. DuPont recommended using these programs to supply information to the federal operating permit program. The staff believes that in order to process the applications in a timely manner, the reviewing permit engineer should receive information directly from the applicant rather than searching the other programs in the agency for data which may be out-of-date or incorrect. The staff agrees that the amount of information required under this program is significant. The staff envisions a sophisticated computer database as the only reasonable means of handling the large volume of information necessary for this program. The staff is actively pursuing the development of such a computer system. Enron and Exxon Houston commented that sec.122.132(a) should require only reasonable and reasonably available information rather than any information deemed necessary by the staff. The staff envisions the application as the end result of a thorough regulatory review of the applicable requirements for the emission units at the site. In order to audit such a review, the staff must have access to information on those emission units. The proposed rule allows the staff the authority to review the necessary information. The staff understands the commmenter's concerns and believes that the application forms and the guidance document will more appropriately address the type of information the reviewing engineer might require. HL&P commented that no basis exists in 40 CFR 70 for the requirement in sec.122.132(a) to submit information identifying potentially applicable requirements. HL&P recommended this requirement be taken out. Enron, TMOGA, and Marathon commented that the basis for why an applicable requirement does not apply should not be a requirement of this section. The commenters further suggested a statement of negative applicability be substituted for this requirement. In order to properly audit an application, the staff believes that the reviewing engineer should be aware of the reason why a potentially applicable requirement does not apply to a particular emission unit. A simple statement of negativity would not provide an acceptable degree of assurance. Enron recommended that the requirement in sec.122.132(a), to submit a risk management plan in accordance with the Act, sec.112(r)(7), be revised to reflect the possibility that the federal rule may not be promulgated prior to the application submittal deadline. The staff understands that the last element of the federal rule referenced will be proposed in November of 1993. The staff also understands that the federal rule is scheduled to be promulgated prior to the first application submittal deadline listed in the final rule. Consequently, sec.122.132(a) has been retained intact with regard to this comment. TMOGA commented that sec.122.132(b)(2) should be rewritten to reference the requirement in sec.122.143(1)(H) that any permit with more than three years remaining to expiration shall be reopened to reflect new regulatory requirements. The staff believes that referencing a requirement to reopen a permit in the section discussing the compliance plan is confusing. Union Carbide commented that sec.122.132(b) could be interpreted to require a compliance plan for an entire site rather than the relevant emission units under the permit. Union Carbide requested clarification of the intent of this subsection. The staff agrees with the commenter and sec.122.132(b)(1) and (2) has been revised to require a compliance plan for the relevant emission units in the application. TCC commented that the compliance certification discussed in sec.122.132(c) is a periodic report that follows after permit issuance and that 40 CFR 70 only requires the application to include the applicant's plans to submit future compliance certifications. TCC requested that this subsection be revised to distinguish between a statement of intent to comply and the periodic compliance certifications required after permit issuance. The staff disagrees with the commenter. Section 70.5(c)(9) of the federal rule clearly requires that a compliance certification be submitted with each application. Section 122.132(c) will be retained intact with regard to this comment. An individual requested that sec.122.132(d) be rewritten to require the applicant to send a copy of the application to the local air pollution control agencies. The proposed rule does not prohibit the review of the applications by the local air pollution control agencies. To determine the breadth and depth of the local programs' participation in the federal operating permit, the staff intends to hold discussions with the local programs to develop an agreement much like the implementation agreement with EPA. The staff believes that such involvement should be addressed through agency policy and guidance documents rather than in the final rule. EPA commented that sec.122.133 should include the 40 CFR 70 requirement that applications be submitted no earlier than 18 months prior to expiration of the permit. In order to comply with the 40 CFR 70 requirement, the change has been made in this section and also in sec.122.241(b) (Permit Renewals). HL&P suggested language with the intent of clarifying the meaning of "timely" in sec.122.133(a). TMOGA was concerned that sec.122.133(a) could be construed to supersede sec.122.130 (Responsibility to Apply). TMOGA and TCC suggested that the subsection be clarified. The staff agrees with the commenters that the proposed language could be misinterpreted; consequently, sec.122.133(a) has been rewritten to clarify the original intent of the section. TMOGA and TCC were concerned that sec.122.133(b) could be interpreted to require applications for significant permit modifications prior to issuance of the permit. Both requested clarification of this section. The staff understands the concerns raised by the commenters, however, an application for a significant permit modification is not required for a permit that does not yet exist. AEA, an individual, and TI requested that "complete application" be defined in sec.122.134. The staff does not recommend attempting to define a complete application in sec.122.134. The staff believes that the final rule should outline the broad requirements of an application, and that the application forms and guidance document should be the arena to address specific detailed elements. Enron and TMOGA commented that sec.122.134(a) should be revised to allow an application to be complete if all reasonable and reasonably available information has been provided. Enron also suggested that the additional information that may be requested by the staff under sec.122.134(b) and sec.122. 138 be limited to the information required under sec.122.132(a). Marathon suggested that the final rule limit the information required for the application to be deemed complete by the exclusion of the following language, "...information deemed necessary to determine the applicability of, or to impose, any applicable requirement." TMOGA recommended alternate language to define the information requirements of this section. The purpose of the operating permit program is to provide codification of all applicable requirements. Staff believes that requiring the submission of any information necessary to determine the applicability of or to codify any applicable requirement is reasonable. In addition, the elements included in sec.122.132 reflect the requirements of 40 CFR sec.70.5(c), relating to standard application forms and required information. 40 CFR sec.70.5(a)(2) specifies that to be deemed complete, an application must provide all information required pursuant to sec.70.5(c). Therefore, the staff's proposal is consistent with the requirements of 40 CFR 70. Staff does not believe that TMOGA's suggested language provides any additional clarification, except for changing the word "impose" in sec.122.132(a) to "codify." An individual opposed sec.122.134(b) which allows, unless the agency notifies the applicant otherwise, automatic completeness 60 days after receipt by the agency. 40 CFR 70 specifies that the states' program will provide an automatic completeness determination 60 days after the application is received by the state, unless the state otherwise notifies the applicant that the application submittal was incomplete. Exxon Chem requested sec.122.136(a) be modified to allow applicants, who failed to submit information or submitted incorrect information, more than 60 days to correct the application. The staff believes that 60 days is sufficient time for an applicant to correct an application. DuPont commented that sec.122.136(c) should allow the staff to request additional information from an applicant only after consultation with the applicant. The determination of what information is required to continue or complete the permit review should be made by the reviewing engineer. This will provide greater flexibility and can potentially reduce review time. Enron and TMOGA commented that sec.122.138 should include language which states that the applicant is not required to comply with the conditions of the permit until after the permit is issued, and for permit modification application, the permit holder need only comply with the terms and conditions of the existing permit until a modified permit is issued. The staff believes that the initial permits are not enforceable until issued by the board or its designee. However, it was not clear in the proposed rule which terms and conditions, the proposed or existing, the permittee shall comply with during the time period between commencing operation and the issuance or denial of the permit revision. In order to comply with the intent of 40 CFR 70, which allows changes to be made and operation of those changes to commence prior to issuance of a permit revision, sec.122.217 (Permit Addition Procedures) and sec.122.219 (Significant Permit Modifications) have been reviewed to allow the permittee to comply with the terms and conditions of the proposed permit, rather than those of the existing permit during this interim period. EPA commented that the reference to permit modification in sec.122.138 should be deleted. 40 CFR 70 requires significant permit modifications to meet all the procedural requirements of permit issuance. As a result, the applications for a significant permit modification must meet the timely and complete criteria in the federal rule. The staff interprets 40 CFR 70 as allowing the application shield for those sources which are subject to the procedural requirements and meet the timely and complete criteria in the federal rule. This section has been retained intact with regard to this comment and does allow the application shield for significant permit modifications. TCC requested revising sec.122.138 to allow the application shield for sources that submitted only a timely application, rather than, as proposed, a timely and complete application. 40 CFR 70 specifies that the application shield may be extended only to those applications which are both timely and complete, as described by the federal rule. TMOGA recommended clarifying sec.122.138 to eliminate confusion on who sets the deadline for the submittal of additional information. The staff agrees with the commenter and sec.122.138 has been clarified to clearly allow the executive director the necessary authority to set deadlines for the submittal of additional information. An individual opposed sec.122.139(4) and suggested that the nine month time frame be revised to 12 months. The requirement in sec.122.139(4) to take action within nine months of receiving the application is a federal requirement of 40 CFR 70. AOGC commented that the annual compliance certifications required under sec.122.143 should be required to be submitted at the same time the annual emission inventories are required to be submitted so to avoid a duplication of effort on the part of the regulated community. The staff agrees with the goal of minimizing duplicative effort where 40 CFR 70 allows. However, it is unclear to staff at this time how much latitude is available in the submission of compliance certifications. Therefore, the phrase "at least" has been added before the phrase "every 12 months" in sec.122.143(4) to allow for maximum flexibility in submission of compliance certifications. 3M suggested language to be added to sec.122.141 regarding alternative operating scenarios as addressed in 40 CFR sec.70.6(a)(9) and emission caps as addressed in 40 CFR sec.70.4(b)(12)(iii). Chevron commented that TACB should include language in sec.122.143 that addresses alternative operating scenarios and emissions trading. There will be no revisions to sec.122.141 or sec.122.143 regarding these issues. The staff designed the proposed operating permit program (permit content and scope) to allow such changes provided that such changes do not affect an applicable requirement, and provided that Regulation VI and the SIP allow such emission trading and alternate operating scenarios. However, insofar as the requirements of 40 CFR 70 conflict with any underlying requirement of the Texas SIP, the SIP requirement governs. Regulation VI does not allow for a facility to "trade emissions" without BACT and impacts review. Nor does Regulation VI allow a source to vary its operating scenario, unless expressly allowed under an existing preconstruction authorization. The staff believes that both emissions trading and alternate operating scenarios are appropriately addressed under the current Regulation VI NSR program. In addition, the federal operating permit will not prohibit an emission cap on a facility that meets the requirements of all TACB regulations. As appropriate, any necessary conditions will be included in a federal operating permit addressing an emissions cap. An individual requested that all of sec.122.143 be deleted and opposed the concept of general permits. Section 122.143 refers to general permit conditions, i.e., the general conditions that will be contained in each permit. This is totally unrelated to the concept of general permits. General permits are addressed in sec.122.202. Therefore, sec.122.143 has been retained. With regard to general permits, this concept will be retained also. The federal operating permit is, by and large, a document in which all of the applicable requirements for a source are codified. In many instances, for similar source types with similar applicable requirements, general permits will allow the staff to avoid redundant effort, saving staff resources for other important air quality initiatives. EPA commented that sec.122.143 needed additional language to ensure that the permits do include the provisions required under 40 CFR 70, including those provisions concerning emission limitations and standards. Section 122.143 (Permit Conditions) lists only the general conditions with which each permit issued under the final rule must comply. Emission limitations and standards will be specific to the individual sites and as such will be appropriately attached as special conditions to the individual permit. Section 122.145 (Other Requirements) has been revised to clarify this intent. TCC commented that sec.122.143(1)(B) should be changed to read, "Permit shall expire five years from the date that TACB takes final action on the proposed permit." Issuing the proposed permit is the final action that TACB will take on the vast majority of permits. Staff agrees with the commenter on when the "five- year clock" begins, that is on issuance of the proposed permit. However, the staff believes that the proposed language states that position more clearly than the suggested revision. HL&P commented that sec.122.143(1)(B) appears to conflict with sec.122.201(b) and sec.122.241(a). HL&P argued that the former sets the term at five years while the latter two seem to allow permit terms less than five years. HL&P supported a fixed five-year term. Section 122.143(1)(B) states that a permit "shall expire five years from the issuance of the proposed permit." The staff believes that this does not automatically "set the term" at five years, but means that a permit term of over five years will not be allowed. The staff believes that the TACB should retain the flexibility to have permit terms of less than five years as provided by the latter two sections. With this flexibility, it will be possible to coordinate the timing of operating permit renewal with NSR permit renewal. An individual commented that the phrase "at any time" should be added to sec.122.143(1)(C)(i). This issue was discussed at the roundtables. The draft rule presented at the roundtables provided for inspection of the emission units at any time. However, the staff does not believe it is always reasonable to expect access to records at any time, because not all records are maintained on- site. In addition, all the permittee's staff are not authorized generally to have access to those records and those authorized personnel may not always be available. In addition, the language contained in sec.122.143(1) (C)(i) mirrors the language contained in sec.70.6(c)(2)(i). TMOGA, DuPont, Enron, Chevron, TCC, and Pennzoil requested that the phrase "inspect, at any time..." in sec.122.143(1)(C)(iii) be changed to read "inspect, at reasonable times," which reflects the language of sec.70.6(c)(2)(iii). The basis for this comment is that in certain situations, such as an emergency, it may not be appropriate for representatives of the TACB to be allowed onsite. This issue was addressed during the draft Regulation XII round-tables. Since many sources operate continuously, the staff believes that it is important to have access to a source at any time. The TACB regional staff believes that the wording should be "inspect, at any time." The basis for this is that representatives of the TACB would not voluntarily endanger themselves during an emergency or knowingly hinder efforts to control an emergency. Consequently, in order to address both the concerns of the regional staff and the commenters, the staff has added language to sec.122.143 which provides for inspection at any time other than when the presence of the TACB personnel would interfere with the ability of the permittee to respond to an emergency situation. An individual asked that "reasonable period of time" as used in sec.122. 143(1)(D) be defined. This paragraph addresses the amount of time that a permittee has to present records required by a permit to representatives of the TACB or the local air pollution program with jurisdiction. The staff has retained this section as proposed with regard to this comment. This wording was discussed in the draft Regulation XII roundtables at some length. It was determined that inspectors from the TACB or local program could best determine what constitutes a reasonable amount of time on a case-by-case basis. Pennzoil commented that sec.122.143(1)(E) did not include the affirmative defense of emergency contained in sec.70.6(g)(3), and that such defense should be included. The staff believes that sec.101.6 and sec.101.11 of the TACB General Rules fulfill the requirements of 40 CFR sec.70.6(g). Section 101.11 contains language that constitutes a defense from enforcement under upset conditions as long as the procedures of sec.101.6 are followed. TCC commented that the language of sec.122.143(1)(F) is confusing. TCC argued that a permittee is not going to request revocation or termination, and actual termination "stays" all permit conditions. The staff believes that the language in sec.122.143(1)(F) is required by sec.70.6(a)(6)(iii). TCC commented that sec.122.143(1)(G) should be revised to allow for extensions to be granted by the Executive Director. TCC also requested that this paragraph be rewritten to note that records sent directly to EPA may be sent with a claim of confidentiality. The staff agrees with these comments and has added language to sec.122.143(1)(G) accordingly. An individual commented that "reasonable period of time" as used in sec.122. 143(2) regarding the submittal of monitoring data should be defined. This issue was a point of discussion at the draft Regulation XII roundtables. It was determined that "reasonable period of time" varies widely depending on the type of monitoring required. Therefore, the staff believes that it is more appropriate that "reasonable period of time" be defined on a source type or case-by-case basis during permit review and may be defined in the special conditions of the permit. Exxon Chem, TI, AEA, and GPA commented that the reporting conditions contained in sec.122.143(3)(B) and (C) are redundant. TCC recommended deleting subparagraph (B). TI and AEA recommended deleting subparagraphs (B) and (C) altogether. GPA and Chevron commented that language be added to subparagraph (B) or (C) that reporting is required under one but not both of these subparagraphs. The staff agrees that the reporting requirements of sec.122. 143(3)(B) and (C) seem redundant. However, the staff does not recommend deletion of those subparagraphs altogether. Subparagraph (B) fulfills the requirements of sec.70.6(a)(3)(iii)(B) and (C) fulfills the requirements of sec.70.6(g). The staff does agree with the approach taken by Exxon Chem and GPA. Therefore, language has been incorporated into sec.122.143(3)(B) which requires reporting except in such cases that reporting is required in subparagraph (C). TMOGA and Enron commented that sec.122.143(3) regarding reporting and sec.122. 143(4) regarding compliance certifications should contain wording to change the reporting date to coincide with other reporting requirements and that reports not be required until 45 days following the data collection period so that report compilation can be accomplished. The staff agrees, in principle, with the goal of matching submission dates for reports and compliance certifications where 40 CFR 70 allows. However, EPA has not provided guidance on how much latitude is allowed in the submission of compliance certifications or other required reports. Therefore, the phrase "at least" has been added before the phrase "every six months" in sec.122.143(3)(A) to allow for maximum flexibility in submission of required reports. In addition, the phrase "at least" has been added before the phrase "every 12 months" in sec.122.143(4) to allow for maximum flexibility in submission of compliance certifications. DuPont requested that the wording of sec.122.143(3)(C) be changed to reflect the wording contained in sec.70.6(g)(3). The rationale is that the subparagraph, as currently worded, and specifically the reference to Chapter 101 (TACB General Rules), is too vague to be used as an affirmative defense of emergency. The staff believes that sec.101.6 and sec.101.11 of the TACB General Rules fulfill the requirements of 40 CFR sec.70.6(g), and that an affirmative defense of emergency can be built by using those sections. An individual commented that the word "preventative" in sec.122.143(3)(B) should be "preventive." Staff agrees and this suggestion has been incorporated. Exxon Chemical asked that sec.122.143(4) be changed to incorporate the idea that the compliance certification should contain a blanket statement of compliance and should detail only noncompliance through the requirements of subparagraphs (A)-(D). Compliance certification requirements are stated in sec.70.6(c)(5). The staff understands that these requirements are mandated and can not be changed. Exxon Baytown and Marathon supported all of TMOGA's comments on sec.122.143 (Permit Conditions). In addition, Exxon Baytown supported the comments of Exxon Chem on sec.122.143. TMOGA, Marathon, TCC, DuPont, AEA, TI, and Exxon Houston commented that the language of sec.122.145(a) requiring certification by a responsible official for any document required by a permit is overly burdensome. AEA commented that the requirement to certify reports in sec.122. 145(a) should not be extended to supporting documentation such as calibration data, strip charts, etc. The commenters suggested changing the language in sec.122.145(a) to require certification by a responsible official only for those documents that will be submitted to the TACB. The staff agrees that the language contained in sec.122.145(a) could be overly burdensome and has incorporated language as suggested. TCC recommended deleting the first sentence of sec.122.145(a). The commenter's rationale was that the items discussed in this subsection were already discussed in sec.122.143, and that restatement is confusing. The conditions included in sec.122.143 are general permit conditions that will be included by reference in every operating permit, much as Texas NSR Permits contain General Provisions. Section 122.145(a) provides authority to include conditions in each operating permit, including those that go beyond the general conditions. Enron, TMOGA, and Marathon commented that language should be added to sec.122.145(a) such that the subsection would not be construed to require compliance certification, testing, monitoring, recordkeeping, and reporting for all emission units. The rationale was that the rule, in and of itself, should not require testing and monitoring until enhanced monitoring rules are promulgated. The staff believes that sec.70.6(a)(3)(i)(B) of the federal rule requires monitoring that is sufficient to demonstrate permit compliance. This is known by the EPA as "gap filler" monitoring requirements, where there may not be monitoring requirements in any applicable requirement. The staff points outs, however, that monitoring does not necessarily mean continuous emissions monitoring. In some cases, such things as recordkeeping may be sufficient to demonstrate permit compliance. Exxon Chemical commented, regarding sec.122.145(b)(1), that language should be added to allow the use of equivalent test methods without listing in the permit. The staff agrees that it is possible, in certain instances, to use equivalent test methods. However, the staff also believes that the use of these would need to be approved on a case-by-case or source-type basis. Therefore, equivalent test methods will not be added. TMOGA, Marathon, and Enron suggested adding a new paragraph, sec.122.145(b) (4), to allow for a phase-in time after a permit is received to develop and implement monitoring or recordkeeping. The staff agrees that a phase-in time for monitoring and record-keeping will be needed by most sources upon receipt of a permit. As with NSR permits, the phase-in schedule will be stated in the permit, on a case-by-case basis, rather than in the rules. TMOGA, Marathon, TCC, and DuPont expressed concern that the use of the phrase "operating conditions" in sec.122.145(c)(6) is too broad and needs to be defined. The phrase "which are deemed necessary to characterize emissions" has been added after the phrase "operating conditions." TMOGA and Marathon commented with regard to sec.122.145(d), relating to sites with emission units not in compliance at the time of permit issuance, that the TACB should publish a guidance document within six months of "issuance" of the final rule on compliance plans pursuant to sec.122.132(b). The commenters further stated, that enforcement policies should be developed which give consideration to those companies which make "good faith efforts" to comply with applicable requirements. The staff intends to develop guidance documents, not only relating to compliance issues, but for a wide variety of issues concerning implementation of the federal operating permit program. However, an exact time- frame on issuance of these documents will not be established, but guidance will be developed as soon as possible after the effective date of the final rule. The staff believes that the comments on enforcement policy are outside the scope of this rule package. DuPont commented that sec.122.145(d)(2)(A) requires permittees to provide an explanation of why any dates in the schedule of compliance (for sites not in compliance) "were not or will not be met." The commenter argued that most "conscientious permittees" will not intentionally miss a compliance date and that there is no need to predict "non-compliance of a non-compliance schedule. " They recommend deleting the phrase "or will not be." This specific site refers to submission of progress reports for sites with units not in compliance. It is conceivable that at the time of progress report submittal, a permittee may be aware of a compliance schedule date that will be missed for whatever reason. The language which is identical to sec.70.6(c)(4)(ii), has been maintained. EPA Region VI commented that sec.122.150(b), General Permits, seemed to indicate that General Permits would not be promulgated through rulemaking procedures required by the Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a. EPA requested that sec.122. 150(b) be clarified with regard to the public notice requirements for general permits. Section 122.202 sets out the procedures to obtain a General Permit. It is the intention of the TACB to develop a list of General Permits, much like the Standard Exemption List promulgated under TACB Regulation VI. The initial General Permit list will be subject to the APTRA rulemaking procedures which include requirements for public notice and comment, as well as public hearings. EPA and affected states are free to comment during the public comment period or during any hearing. 40 CFR 70, sec.70.6(d)(2), provides that without repeating the public participation procedures required under sec.70.7(h) , the TACB may grant a source's request to operate pursuant to a general permit. The intent of sec.122.150(b) is to merely state that individual General Permits are not subject to the public notice and comment procedures in Subchapter B of the proposed rules. Section 122.150(b) has been included as a reference to the procedural requirements listed under sec.122.202. EPA commented that sec.122.152(b) appears to allow for the general availability of the permit file to cease after the permit is issued. The TCAA, sec.382.040 provides that all board records are public records that are open to inspection by any person during regular office hours, except as subject to sec.382.041 regarding confidential information. Section 122.152(b) has been clarified to address EPA's concern. TCC commented that sec.122.152(c), as written, could be interpreted as requiring the TACB to provide a copy of an actual application and other documents as specified in sec.122.153 to any person who requests it. 40 CFR Part 70, sec.70.7(h) provides in part that notice of an application for an operating permit shall be provided to any mailing list of persons that is maintained by the TACB and to those persons who request in writing to be included on any such list. The intent of sec.122.152(c) is to comply with sec.70. 7(h) by merely providing notice to those interested persons of the submission of an application for an operating permit or any revision. It is not the intent of the TACB to freely provide a copy of the draft permit and documents required in sec.122.153 to those who request them. Copies of these documents may be obtained from the TACB central office as well as the TACB regional office file rooms that are open to the public during normal business hours. Section 122.152(c) has been revised to clarify the original intention. TU commented that the requirements in sec.122.153 of the proposed rules for public notice of intent to obtain a federal operating permit allows for publication in two sections of two successive issues of a newspaper in general circulation. TU requested that the publication requirement be reduced to the minimum required under 40 CFR 70. 40 CFR 70 requires "...adequate procedures for public notice including offering an opportunity for public comment...." The staff finds it reasonable and adequate to require the same procedures for public notice under this rule as is required under Regulation VI. EPA commented that sec.122.153(a) does not require, as does 40 CFR 70, the "emission change involved in any permit modification" to be included in the public notice. The TACB believes that sec.122.153(a)(3) adequately addresses EPA's concern. By merely limiting the description to "emissions changes" the public notice could presumably not mention changes in monitoring, recordkeep- ing, new applicable requirements that do not involve emissions, etc. The reference to "activity" is more inclusive of all possible changes. The staff believes that the proposed section satisfies the requirements of 40 CFR 70. The TCC commented that the phrase "with newspaper of general circulation" ought to be added to sec.122.153(a) to modify the requirement to publish notice in a municipality nearest the location of the site. This would be the case when the municipality where the site will actually be located does not have a newspaper of general circulation. Section 122.153(a) was intended to track the language of the Texas Health and Safety Code, sec.382.056(a) as well as TACB Regulation VI, regarding notice of intent to obtain a permit. The TCC commented that sec.122.153(a)(2) requires a public notice to provide the name of the "company" seeking an operating permit and suggested that an applicant can be an entity other than Company. The staff agrees that applicants may be other entities or persons and the suggested change has been made to sec.122.153(a)(2). EPA commented that the word "significant" in sec.122.153(a)(5) should be deleted. 40 CFR 70 requires that the public notice include "...the emissions change involved in any permit modification...." By referencing any significant permit modification rather than any permit modification, the staff merely acknowledges, for the sake of clarity, that the only type of modification required to undergo public notice is the significant modification. One individual requested that a 30-day comment period be specified in sec.122.153(a)(7). The staff has specified a 30-day comment period in sec.122. 155 (Public Comment Period) which describes the time periods for the comment period as well as procedures for submitting comments and requesting a hearing. One individual requested that the term "affected person" be defined in sec.122.153(a)(8). The appropriate methodology in these matters is to review the facts of each request on a case-by-case basis in order to determine whether the person is affected by emissions or if the request is a reasonable request as allowed by the Texas Health and Safety Code, sec.382.0561(c). Any further definition of "affected person" would still have to allow for case-by-case determination of the relevant factors. Therefore, the staff will not be defining "affected person" in the final rule. The TCC commented that sec.122.154(a) and (c) should be changed to allow the Executive Director to have the discretion to approve alternative placement of signs in the event that the current requirements prove to be "inadequate or awkward." The staff has added sec.122.154(d) to allow for alternate sign placement where it is impractical to comply with the stated requirements, and where the alternate placement will provide equivalent notice. Exxon Chem and Exxon Baytown recommended changing sec.122.155(c) to include the permittee when notifying interested parties of the board's proposed final action. This section has been revised. EPA commented that sec.122.163(a) should reflect the 40 CFR 70 requirement that the final rule shall be effective upon EPA approval of the federal operating permit program submittal, and not 30 days after publication of the approval date, as written in the proposed rule. The TCC suggested adding language to sec.122.163(a) to clarify that the effective date of the final rule is the date that the approval of the operating permit program is published in the Federal Register . The TCC also suggested that the caveat in sec.122. 163(c) regarding the failure of the TACB to publish notice of the date of approval of the operating permit program be deleted. 40 CFR Part 70.4(g) provides that the effective date of an operating permit program, including any partial or interim program shall be the effective date of approval by the Administrator. The staff agrees with the TCC comment that the date of approval should be tied to publication of the approval in the Federal Register. EPA will publish notice of its approval of the Texas program in the Federal Register. The Federal Register will indicate the actual date of approval, which should be 30 days after the date of publication in the Federal Register . EPA correctly noted that sec.70. 4(b)(3) requires that state statutes and regulations shall be fully effective by the time the program is approved. The Texas Health and Safety Code, Chapter 382 was amended during the 1993 Legislative Session by House Bill 2049. Section 28 of House Bill 2049 provides that the sections of Chapter 382 pertaining to federal operating permits shall take effect on the effective date of the bill, which was signed and became effective (with the exception of sec.25) on June 9, 1993. However, the Texas Health and Safety Code, sec.382.064, provides that applications for federal operating permits are not required to be submitted to the board before the approval of the Title V permitting program by the Administrator. In order to address the concerns of the regulated community, the staff initially proposed that the final rule becomes effective 30 days after the date of approval of the operating permit program by EPA. APTRA, sec.10(a)(3) provides that if a federal regulation requires that an agency implement a rule by a certain date, then the rule is effective on the prescribed date. In this instance, since sec.70.4(b)(3) requires that the regulation be effective upon date of program approval, the TACB cannot delay the effective date of the final rule. As such, the final rule will be effective 20 days after it is filed with the Texas Register , pursuant to APTRA, sec.10(a). Section 122.163(a) has been changed so that compliance with the requirements of the regulation will be required upon program approval by EPA. As for the TCC's concerns regarding the possible failure of the TACB to publish notice of the effective date, it is not the intention of the staff to fail to publish such notice in the Texas Register. The purpose of this disclaimer is to put all potential applicants on notice that the effective date is the effective date, and the action or inaction of the TACB is of no consequence, especially since the approval date will be published in the Federal Register. The TCC commented that the word "already" in sec.122.164 makes no sense, and would potentially create unlawful restrictions on protection accorded by State law. The staff agrees that the proposed language in this section could arguably be interpreted to mean that any later laws regarding confidentiality would not apply to documents applicants believe to be confidential, consequently, the word "already" has been deleted from the final rule. One individual requested that the agency determine whether or not documents submitted as confidential are indeed entitled to confidential treatment. The Texas Health and Safety Code, sec.382.041 provides that members, employees, or agents of the board may not disclose information submitted to the board relating to secret processes or methods of manufacture or production that are identified as confidential when submitted. The agency maintains documents marked as confidential in closed files and notes in the public file that certain information is held confidential. In the event a request is received to view the documents, the agency is authorized by the Texas Open Records Act, Article 6252- 17a, to request an opinion from the Texas Attorney General as to whether or not the documents meet any of the exceptions from disclosure provided for in that act. The Open Records Act, sec.7(c), states that in cases where a third party's privacy or property interests are implicated by a request for information, the governmental body may, but is not required, to submit its reasons as to why the information should or should not be withheld. The agency has not made it a practice to submit such reasons as the agency is not in the best position to provide such reasons. Section 382.040 provides that all information, documents, and data collected by the board in performing its duties are state property and subject to the limitations in sec.382.041 (and those of the Open Records Act), and that all records are open to the public during regular agency hours. The TCC and TMOGA commented that the last sentence of sec.122.165 should be deleted because sec.122.211 already requires that the TACB be notified of any change regarding the responsible official. This section has been revised to reference sec.122.211 rather than repeat those requirements. HL&P recommended revising sec.122.201(b) and sec.122.241(a) to mandate fixed terms for the federal operating permits. For two reasons, the staff believes that the final rules should retain the flexibility to renew the permits prior to the end of the five-year term. First, this allows a permittee the option of scheduling simultaneous NSR and federal operating permits reviews. Secondly, if in the future, the agency moves to a one permit system, then the permits would almost certainly be combined at a renewal. Again, flexibility in scheduling the renewal review would be an advantage. Chevron Production, TMOGA, and Marathon commented that sec.122.202 should require the TACB to notify all holders of a general permit if that permit is repealed or revised. The staff understands the commenters' concerns; however, the staff believes that the procedural requirements of rulemaking, including public notice will serve as adequate notice of the general permit's proposed revision or revocation and insures efficient use of resources. EPA commented that sec.122.202 should be changed to require renewal of the general permits every five years. Pursuant to 40 CFR 70, the proposed rule provides for general permits to be promulgated through future rulemaking. Since state rules are not required to go through a renewal process, general permits are not required to go through renewal review. HL&P noted that the term "general permit" in sec.122.202 may also be used, with a different meaning, under other rules. HL&P recommended using a different term, such as "standard permit" or "general federal operating permit" to avoid any potential confusion. The staff shares the commenter's concerns over potential confusion in terminology. Statutory authority allows for the issuance of both standard permits and general permits. Since "general permits" is a federal term under Title V of the Act, the general permits will be issued only under this rule. If other permits by rule are issued pursuant to the NSR program, those permits will be identified as standard permits. DuPont and Marathon recommended that sec.122.202 be rewritten to allow sources which qualify, to operate under a general permit without actually applying for the general permit. The federal rule, 40 CFR 70, requires that each source which qualifies for a general permit must apply for that general permit. TCC recommended that sec.122.202(b) be revised to require that the terms of each general permit be set out as an appendix to the final rule, so that individuals from out-of-state can obtain a copy of the general permits by obtaining a copy of the published rule. The Texas Register , which publishes proposed and adopted rules issued by Texas state agencies, does not allow for publication of appendices or attachments to rules. The only acceptable method is to include the list of general permits within the rule itself. This is an option which may be considered in future rulemaking. The general permits have been incorporated by reference, similar to the way standard exemptions are incorporated into Regulation VI. Marathon and TMOGA recommended that sec.122.202(d) specifically allow the use of general permits to incorporate, at a site, new applicable requirements which were not promulgated prior to issuance of the original permit. As was discussed at the round- tables, the staff does envision the general permits serving this function and the proposed version of the rule did allow for such use. However, since the staff cannot envision every possible use of these permits, narrowly defining their use in the final rule will not be done. TCC and TMOGA requested modifying sec.122.202(d) and (e) to remove the requirement that the general permit must be granted to each individual applicant. TCC commented that although under 40 CFR 70 the sources must apply for a general permit, it is not required that the state respond to each individual application. 40 CFR 70 clearly states that "To sources that qualify, the permitting authority shall grant the conditions and terms of the general permit." The proposed rule allows each general permit to specify whether such grant will be made for each individual general permit application or whether the general permit may specify a reasonable time period after which a source that has submitted an application will be deemed to be authorized to operate under the general permit. TCC requested that sec.122.202(f) be revised to allow the general permit to remain in effect until its expiration date at the end of the five-year renewal cycle, regardless of any action on the part of the agency revising or repealing the general permit. Since each general permit remains perpetually in effect until revision or repeal of the permit, this section will not be revised. Exxon Chem and Exxon Baytown recommended, under sec.122.202(g), where the general permit has been revised or revoked, limiting enforcement action for operation without a permit to those periods of operation subsequent to the last possible application date or the date the permit is issued. The staff understands the commenters' concerns regarding enforcement during an interim period between revocation of an existing permit and the granting of a new general permit. Section 122.202(i) has been revised to address such interim periods and sec.122.2029(e) has been revised to clarify that the application shield will be in place for those applicants who make a timely and complete application. EPA commented that sec.122.204 should clearly state that temporary sources which are in and of themselves major, must obtain a federal operating permit. The staff has revised the section to comply with EPA's comment. IADC requested clarification in sec.122.204(c) as to which permit will not require revision: that of the temporary source or the site. The staff agrees that sec.122.204(c) should be clarified with regard to this comment. This section has been clarified to indicate that neither the status of the temporary source or the site is affected by a temporary source which remains at the site for six months or less. IADC commented that the staff did not specify what effect a temporary source will have on the site's permit status if the temporary source remains longer than six months. IADC cited potential costly delays in operations and suggested removing the implied requirement in sec.122.204(c) for a site permit revision for temporary sources which remain on-site longer than six months. The staff believes that a temporary source should be allowed to remain on site for a reasonably short period of time without affecting the permit status of the site. The staff defined a six-month period and believes that this is a more than reasonable length of time. Section 122.204(c) has been revised to clarify the requirement for a site permit revision for temporary sources which remain on site longer than six months. IADC commented that the staff's proposal in sec.122.204(d) to require the same application information from both permanent and temporary sources is unworkable because much of the information required under Subchapter B of the proposed rules is site- specific. The staff believes that the same applicability determinations required under sec.122.132 (Application and Required Information) apply to both types of sources. However, the staff understands the commmenter's concerns and believes that the application forms and the guidance document will more appropriately address the type of information the reviewing engineer might require. IADC commented that the requirement in sec.122.204(f) to provide ten day's notice prior to moving a temporary source is, in some cases, impractical if not dangerous. IADC cited emergency situations, for example, moving a rig on-site to drill a relief well at the site of a blowout. The staff agrees with the commenter and this section has been revised to allow a shorter notification in the event of an emergency. EPA suggested that sec.sec.122.211-122.221 be rewritten in order to clarify the requirements. TCC suggested that due to the numerous varieties of permit revisions, the staff should provide examples of the types of changes contemplated by each. The staff has revised these sections to generally clarify the intent of the requirements. The staff intends to provide examples of the different types of permit revisions in the guidance documents. TCC and Exxon Chem commented that the proposed Regulation XII does not adequately address procedures to incorporate MACT determinations, made under the FCAAA, sec.112(g), into the proposed federal operating permits. TCC commented that case-by-case MACT determinations could be handled through the state's preconstruction permitting program and the resulting determination(s) incorporated into the operating permit by administrative amendment procedures. TCC stated that some changes to Regulation VI would be necessary to make the requirements of the sec.112(g) MACT determinations federally enforceable as well as revision of sec.122.221 of the proposed rules. The staff agrees that the most appropriate method to administer sec.112(g) MACT determinations is through the state's existing preconstruction permitting program. However, the staff also believes the appropriate time to resolve this issue is after the sec.112(g) and sec.112(l) (Approval of State Programs and Delegation of Federal Authorities) rules are promulgated. TCC's recommendation to add language allowing administrative incorporation of case-by-case MACT determinations into Regulation XII (and, by reference, rulemaking to modify Regulation VI) is premature. The comment is outside the scope of this rule package. Appropriate rulemaking will be implemented to allow adoption of the sec.112(g) program after promulgation of the federal rules. EPA commented that sec.122.211 must specify the types of changes which the staff will allow under administrative amendments. Section 122.211(a)(5) is identical to the language used in 40 CFR 70 for the same purpose. Since the staff cannot envision every possible change that might qualify under sec.112. 221(5), the staff does not recommend narrowly defining its use in the final rule. An individual requested that sec.122.211(c) be rewritten to allow public input. The commenter further requested that sec.122.211(f) be rewritten to allow input from local air pollution control agencies. The staff cannot address these comments since sec.122.211 does not contain either subsection (c) or (f). However, the staff believes that the proposed rules provide substantial opportunities for comment and input from both the general public and local air pollution control agencies, as appropriate. EPA commented that sec.122.215(5) would allow, under permit additions, changes which involved reasonably available control technology, PSD, BACT, lowest achievable emission rate, sec.111, or any case-by-case determinations, with the exception of sec.112(g) or sec.112(j) determinations. The staff believes that the proposed rule is consistent with the intent of Congress, 40 CFR 70, the staff's understanding throughout the Title V federal roundtable discussions prior to the promulgation of 40 CFR 70, and EPA staff comments at Air and Waste Management Association workshops. EPA commented that sec.122.215(7) should specifically prohibit those changes which qualify as significant modifications from the permit addition procedures. The section, now identified as sec.122.215(c)(3), has been revised to comply with EPA's comment. An individual requested that sec.122.217 (Permit Addition Procedures), sec.122.220 (Significant Permit Modification Application and Procedures), sec.122.221 (Operational Flexibility), and sec.122.233 (Permit Reopening Procedures) be rewritten to allow both local air pollution control agency input and a 30-day public comment period. The proposed rules do not prohibit the review of the applications by the local air pollution control agencies. To determine the breadth and depth of the local programs' participation in the federal operating permit, the staff intends to hold discussions with the local programs to develop an agreement much like the implementation agreement with EPA. The staff believes that such involvement should be addressed through agency policy and guidance documents rather than in the final rule. In order to meet the provisions of 40 CFR 70, which require adequate, streamlined, and reasonable procedures for expeditiously processing permit revisions, the staff did not propose that changes qualifying as permit additions, similar to minor modifications in the federal rule, go through a public comment period. The staff believes that the changes which qualify as permit additions are either minor changes at the site, and as such should not require public comment, or involve operational changes which will require review under Regulation VI and a subsequent determination under that chapter as to whether public notice is appropriate for the change at the site. Therefore, the proposed changes to sec.122.217 will not be made. Section 122.220 and sec.122.233 already required a 30-day public comment period. 40 CFR 70 requires that the states' program allow for operational flexibility with only the procedural requirements listed in sec.122.221. Adding public notice for the changes which qualify under this section is prohibited by the federal rule. An individual requested that sec.122.217(b) be rewritten to allow 180 days rather than 90 days to complete action on a permit addition application. In order to meet the provisions of 40 CFR 70, which require adequate, streamlined, and reasonable procedures for expeditiously processing permit revisions, the 90- day review requirement has been retained. EPA commented that sec.122.219 does not require a permittee with a change qualifying as a significant permit modification to revise the permit prior to commencing operation of the equipment subject to the modification. The staff finds no such requirement in 40 CFR 70. The staff believes that the only prohibition on operation in the federal rule is in the case where a change is a Title I modification and the change is also prohibited by the existing permit terms and conditions. That prohibition was listed in sec.122.219 of the proposed rules. An individual opposed allowing changes qualifying under sec.122.219 (Significant Permit Modifications) to be made prior to a 30-day public comment period and input from local air pollution control agencies. The staff believes that the federal operating permit program serves a significantly different, yet complimentary, function to that of the existing NSR program. The NSR program is designed to review applications to build or modify a facility. The purpose of that review is to insure that appropriate control technology will be used at the facility and that the proposed emissions will not adversely affect the health or safety of any citizen. The appropriate time for this review, and when required, the accompanying public comment period, is prior to construction or operation of the new or modified facility. The federal operating permits, on the other hand, are designed to codify all the applicable requirements at the site. The best time for such a regulatory review is after the facility has been constructed and is in operation. This is why, in both 40 CFR 70 and the proposed rule, the permit application review and the accompanying public comment period usually takes place after the operation commences. DuPont, Marathon, Pennzoil, TCC, TMOGA and Natural recommended that the length of time required for prior notification under operational flexibility in sec.122.221 be changed from 30 days to seven days. In supporting this position, Natural and TCC cited, as unacceptable, the additional delay involved in lengthening the minimum seven-day notification period required under 40 CFR 70. Marathon and TMOGA pointed out that the agency should react in a prompt manner to these notifications. This issue was discussed in great detail at the roundtables, and the staff understands the concerns of the commenters and the roundtable participants regarding their companies' ability to make changes. To at least partially address those concerns, the staff has revised sec.122.221(b) to allow the proposed operational changes at the expiration of the notification period, rather than allowing the permittee to make the proposed change, i.e., begin construction, at that time. The staff will have sufficient time to review the written notification for applicability under this section, and the permittee will have the additional latitude to make physical changes at the site as necessary while waiting for the expiration of the notification period. EPA requested that the staff add language, in sec.122.221, incorporating the federal terms "emissions allowable" and "502(b)(10) changes" to define those changes which qualify under operational flexibility. In order to promote a general understanding of the rule, the staff has attempted to present the requirements of the federal operating permit program as clearly as possible in the proposed rule. For this reason, the staff chose in the proposed rule to clearly define the changes allowed under sec.502(b)(10) rather than reference the federal section or terminology. An individual opposed limiting cause for reopening a permit to those defined in sec.122.231(a). The staff believes that it is in the best interest of both the general public and the regulated community to clearly state the conditions under which the permit must be reopened. Pennzoil commented that the requirement in sec.122.231(a) to reopen a permit when new requirements are adopted should base the three-year limit from the effective date of the new requirement, rather than the publication date. 40 CFR 70 directs that a reopening is triggered when additional applicable requirements become applicable to a Part 70 source. In the context of reopening, the staff believes that applicable requirements become applicable at the promulgation date. The staff believes that the use of effective date in the final rule would result in much confusion over its meaning. Effective date could mean the proposal date, the promulgation date, or the compliance date of the new requirement. Section 122.231(a) has been revised to clarify that the trigger date for reopenings is the promulgation date. Pennzoil commented that revision of the permit in sec.122.231(a)(1) should be limited to the addition of the new requirement. The staff believes that the commenter's concern is addressed in sec.122.233(a). EPA commented that sec.122.231(b) should clearly state that the board is required to terminate, modify, or revoke and reissue a permit for cause, as defined in that section. The staff agrees that the federal rule requires the board to act on a permit when cause exists; therefore, sec.122.231(b) has been revised to comply with EPA's comment. EPA commented that sec.122.233 does not require the TACB to notify a permittee of its intent to reopen a permit as required in 40 CFR 70. The staff agrees that the final rule must notify the permittee of intent to reopen. Section 122.233(b) has been added to comply with EPA's comment. HL&P requested clarification on the intent of sec.122.241(f), regarding the combination of multiple federal operating permits at a site into a single permit. Under sec.122.201(d), the proposed rule allows the issuance of more than one federal operating permit at a site. The staff envisions that large chemical and refinery sites may have several operating permits as well as a number of general permits at a single site. Section 122.241(f) simply allows any or all of those permits, particularly the general permits, to be combined at the renewal of the operating permits. EPA commented that sec.122.310 failed to require the TACB to provide EPA with a copy of the application. It is the intention of the staff to require applicants to provide copies of any applications to the EPA. The proposed rules require this under sec.122.132(d). TCC recommended, in sec.122.311(c), deleting the reference to "public or affected state" review and simply mentioning the affected state review period. The staff agrees that this is an appropriate change and "public or" in sec.122. 311(c) has been deleted. Section 122.311 addresses affected state reviews and not the general public review. Section 122.316(2)(F) and (G) detail the procedures the Board must follow regarding public comments received during the public comment period as well as during any hearing. EPA commented that the reference to "significant" permit modification should be deleted from sec.122.311(a). It is the staff's understanding that EPA's intent is to ensure that every draft permit is submitted to the affected state. To accomplish this end, the staff has revised sec.122.311(a) to refer to permit revisions rather than significant permit modifications. TCC suggested clarifying language be added to sec.122.312(a) that makes it clear that, in the absence of an objection by EPA, and after EPA's 45 day review period, the TACB shall issue the proposed permit as the final permit. The staff agrees with the intent of the clarifying comments made by the TCC. The proposed rule requires the board or its designee to take final action on applications for operating permits within 18 months of receipt of a complete permit application. In the proposed rule this requirement shall be met by the issuance or denial of the permit which follows the expiration of the EPA 45 day review period. After issuance, unless EPA objects to the issuance of the permit, the permit is final for the purpose of meeting the 18-month deadline as well as for triggering the time period to seek a judicial appeal pursuant the Texas Health and Safety Code, sec.382.032. Section 122.201(c) has been revised to clarify final action by the Board. The TCC proposed clarifying language to sec.122.314(a) similar to that suggested in sec.122.312 regarding the expiration of the EPA 45-day review period and the finality of the permit. TCC also recommended changes to sec.122. 314(b) regarding the effect of a citizen petition on the effectiveness or finality of a permit issued by the TACB after the expiration of the EPA 45-day review period. The staff agrees with TCC's suggested language and sec.122.314(c) has been added to address this concern. After the expiration of the EPA 45-day review period, the proposed permit shall be issued and considered final for state purposes. Not only is the permit then final for purposes of judicial appeals brought pursuant to the Texas Health and Safety Code, sec.382.032, but also final with regard to final action by the state. This determination provides a bright line that serves to indicate when the permit is final, when the state has taken final action, and when the citizen petition period begins. An individual stated that the 45-day EPA review period specified in sec.122. 312(a) is not enough time to review a proposed permit. 40 CFR 70 requires EPA to object to the issuance of any proposed permit within 45 days of the receipt of the proposed permit. Section 122.312(a) tracks the requirements of the federal rule. An individual stated that "any person affected by a decision" of the Board or its designee in sec.122.314(a) needs to be defined. This same individual commented that the phrase "with reasonable specificity" be deleted from sec.122. 314(c) and that "impracticable" as used in that same subsection, be defined. The staff believes that the phrase "any person affected by a decision" is not in need of a special definition as the words are intended to mean just what they say: that any person who is affected by a decision of the Board or its designee may file a citizen review petition with the EPA. Likewise, the staff does not see a need to define "impracticable" nor is it necessary to delete the phrase "with reasonable specificity." Section 122.314(c) is intended to provide petitioners with the ability to petition EPA if the EPA fails to object to the issuance of an operating permit. An individual stated that a facility should not be allowed to operate if EPA files an objection with the TACB as a result of a citizen petition. 40 CFR sec.70.8(d) provides that if the EPA objects and the permit has been issued, the permit is effective. There is no requirement that calls for a cessation of operation in the event that an EPA objection is received. However, the procedural requirements to revoke a permit, i.e., the site authority to operate, are clearly laid out in the proposed rule. EPA commented that sec.122.316(1)(A) references "federal source," and requested that this phrase be defined. Rather than adding another definition to the final rule, the references to federal source have been deleted and a description of such sources substituted. TCC and HL&P commented that a reference was needed to link sec.122.316 back to sec.122.155(b) regarding the 30-day time period during which a hearing may be requested. The staff agrees with the comments of the TCC and HL&P and a sentence has been added to the first paragraph of sec.122.316 to incorporate this suggestion. TCC suggested that language be added to sec.122.316(1)(A) that would require persons who request a hearing on an operating permit to provide, at the time of the hearing request, a written statement of interest and a basis for challenging the operating permit application. The staff believes it is not appropriate to require persons requesting a hearing to submit the information suggested by the TCC in the actual hearing request. This change would go beyond the scope of the proposed rule because it would require a new procedure to be added to how a hearing is requested and it is inconsistent, with regard to timing, with TACB Procedural Rule sec.103.33(b). TCC commented that the provisions of sec.122.316(2)(C) have the potential to allow for hearing requests to be made after the period during which one may be requested. Exxon Chem noted that the hearings examiner's ability to extend the comment period should be limited and HL&P suggested that the comment period not be allowed to extend beyond the initial 30 days provided for in the public notice. The staff opposes making the change suggested by Exxon Chem and HL&P. The staff disagrees that allowing public comment to be submitted until the close of any public hearing will unnecessarily delay the permit process. If a hearing is requested, the staff is required to provide 30 day's advance notice of such hearing. Allowing public comment to be submitted during this 30-day period or at the public hearing will not unduly interfere with the process. The staff does not believe that it is necessary to limit a hearing examiner's discretion to extend the public comment period during any hearing. If this were to become an issue during a hearing, the parties would be able to present arguments regarding an appropriate deadline. The TCC's suggested changes make it clear that even though the public comment period is automatically extended to the close of any public hearing, the opportunity to request a public hearing is limited to that time specified in the publication of the notice of the permit application as required by sec.122.155. A reference in sec.122.155(b) has been added to reflect the change. An individual commented that "may be affected" in sec.122.316(1)(A), "unreasonable" and "reasonable" in paragraph (1)(B), "reasonable" in paragraph (2)(C), and "reasonably ascertainable" and "reasonably available" in paragraph (2)(E) should be defined. The commenter also noted that subparagraph (F) should require the TACB to provide copies of the response to comments to the public or individuals who request to be notified of such information. The staff has not defined what an "affected person" is for the purposes of hearing requests, for either Regulation VI hearings or for operating permits. The preference in these matters is to review the facts of each request on a case-by-case basis in order to determine whether the person is affected by emissions or if the request is a reasonable request as allowed by the Texas Health and Safety Code, sec.382.0561(c). The staff does not believe that there is a need to specifically define the terms cited by the commenter. These terms are intended to provide for flexibility in the hearing process. In response to the comment to place a two- week response limit on the board to respond to a hearing request, the staff does not believe that it is necessary to place a time limit on the actions of the Board or its designee regarding notification of persons who have requested a hearing. Operating permits are required to be issued by the Board within 18 months of the receipt of a complete permit application. Due to the procedures required by the hearing process for answering comments and notifying affected states and EPA, the staff does not believe that there is any potential for a significant delay in responding to those persons who request a hearing. In response to the comment regarding subparagraph (F), the staff points out that sec.122.155(c) provides that the TACB will provide notice of its proposed final action to any person who commented during the public comment period or during any hearing and to the applicant. For clarification purposes, the staff proposes to add language to subparagraph (F) to make it clear that the staff will respond to comments and will provide copies of the response to individuals who participate in a particular hearing. EPA stated that Regulation XII does not include the exemption provisions allowed for by 40 CFR sec.72.7 and 40 CFR sec.72.8. EPA also stated that the proposed rule do not clearly state the type of units subject to the Acid Rain Program. The intent of the rules was to incorporate by reference all provisions of 40 CFR 72. Language has been added to sec.122.411(b) to specifically incorporate 40 CFR 72 by reference. EPA commented that sec.122.410 addresses Standard Acid Rain Requirements, but it does not clearly state that both the Acid Rain Permit and the Acid Rain permit application need to include the standard requirements. The intent of the proposed rule was to incorporate all of the requirements of the Acid Rain Rules, including the requirements expressed in EPA's comment. The rule incorporates by reference all provisions of 40 CFR 72; however, the staff recommends that additional language be added to sec.122.411 to clarify the incorporation by reference of the Acid Rain Rules. EPA commented that sec.122.411(b) states that if the Acid Rain Rules are in conflict "with other requirements of this chapter" then the Acid Rain Rules shall take precedence. This could be interpreted as incorporating by reference any provisions of the federal rule that are not specifically included in the proposed rule. The staff intended that, under the language in the rule, the Acid Rain Rules shall take precedence over the requirements of the rule. In order to clarify this intent, language has been added to sec.122.411 to incorporate by reference all provisions of 40 CFR 72. EPA commented that sec.122.421 requires the designated representative whose units become subject to the Acid Rain rules to file an application no later than 12 months after the affected unit becomes subject to the federal operating permit program. EPA stated that this appears to contradict 40 CFR sec.72.30(b), which requires a source with an affected unit to submit a complete application at least 24 months before the later of January 1, 2000, or the date on which the unit commences operation. Section 122.421(b) has been reworded to clarify the language. EPA stated that sec.122.425 did not include many of the compliance plan provisions required under 40 CFR sec.72.40. The staff intended to incorporate by reference all provisions of 40 CFR 72 and language has been added to sec.122. 411 to address this comment. SPSC suggested that the availability of an annual 30-day true-up period for allowances should be clarified in sec.122.411. Section 122.411 has been revised to eliminate any uncertainty regarding this matter. TCC suggested changes to sec.122.430 with regard to adding the term "sulfur dioxide" when addressing allowances. The definition of allowance under sec.122. 12 makes it clear that an allowance is specifically related to sulfur dioxide emissions at the rate of one allowance per one ton of sulfur dioxide emissions. EPA commented that sec.122.432 does not clearly state that a permit will not be issued unless the designated representative submits a certificate of representation. EPA further stated that each submission by a designated representative must also meet certification requirements. The incorporation of 40 CFR 72 by reference in sec.122.411 has been added and should eliminate any confusion with this comment. HL&P suggested a minor revision in sec.122.435(b). Section 122.435(b) has been revised to replace "duration" with "term." EPA commented that sec.122.435 does not clearly state that sec.122.215, sec.122.217, and sec.122.221 (concerning permit additions and operational flexibility) do not apply to Acid Rain permits. Section 122.435(a) has been clarified to comply with this request. EPA commented that 40 CFR sec.72.82 allows for fast-track modification, which is another permit revision option the designated representative is allowed under 40 CFR 72. Section 122.437(b) has been added to allow for the fast-track modification procedure as contained in 40 CFR 72. An individual commented that sec.122.437 does not provide for a 30-day public comment period. Section 122.411(a) of the proposed rules specifies that, unless specifically noted otherwise, all affected sources shall comply with the requirements of the final rule for permit issuance, revision, reopening, and renewal including any such requirements for application, public participation, review by affected states, and review by EPA. The public notice requirements of the proposed rule requires a 30-day public comment period. Any exceptions noted in the acid rain section are required by 40 CFR 72. TCC recommended that sec.122.440(c) regarding judicial appeal be deleted from the final rule. TCC commented that this section is redundant with the Health and Safety Code, sec.382.032. The staff agrees with the commenter and sec.122.440(c) has been removed from the final rule. EPA commented that sec.122.440 addresses the limitation on time for filing a judicial appeal, but further states that the Federal Acid Rain Rules limit the administrative appeal period to 90 days or less after issuance of the Acid Rain portion of the permit. The commenter suggested that the language of this section be clarified. The proposed rule did not provide for an administrative appeal to the Board regarding actions taken concerning operating permits. This restriction in no way impacts on the federal appeals process for acid rain permits. Subchapter A. Definitions 278>31 TAC sec.sec.122.10-122.12 The new rules are adopted under the Texas Health and Safety Code (Vernon 1990), Texas Clean Air Act (TCAA), sec.7382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.10. General Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA or the Act) or in the rules of the Texas Air Control Board (TACB), the terms used by the TACB have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, and in sec.101.1 of this title, (relating to the General Rules), the following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Federal Clean Air Act, as amended, 42 United States Code 7401, et seq. Affected states -May be New Mexico, Oklahoma, Kansas, Colorado, Arkansas, or Louisiana if either of the following criteria are met: (A) that State's air quality may be affected by the issuance of a federal operating permit, permit revision, or permit renewal; or (B) that State is within 50 miles of the site or proposed site. Air Pollutant-For purposes of this chapter, any of the following regulated air pollutants: (A) nitrogen oxides; (B) volatile organic compounds; (C) any pollutant for which a National Ambient Air Quality Standard has been promulgated; (D) any pollutant that is subject to any standard promulgated under the Act, sec.111; (E) unless otherwise specified by the Administrator by rule, any Class I or II substance subject to a standard promulgated under or established by Title VI of the Act; or (F) any pollutant listed in the Act, sec.112(b) or sec.112(r) and subject to a standard promulgated under the Act, sec.112. Applicable requirement -All of the following as they apply to the emission units at a site (including requirements that have been promulgated or approved by the United States Environmental Protection Agency (EPA) through rulemaking at the time of issuance of the permit but have future-effective compliance dates): (A) any standard or other requirement provided for in the applicable implementation plan approved or promulgated by EPA through rulemaking under Title I of the Act that implements the relevant requirements of the Act, including any revisions to that plan promulgated in 40 Code of Federal Regulations (CFR) 52. For purposes of the Federal Operating Permit Program, Chapters 111-115, and 117-119 of this title (relating to Control of Air Pollution From Visible Emissions and Particulate Matter; Control of Air Pollution From Sulfur Compounds, Control of Air Pollution From Toxic Materials; Control of Air Pollution From Motor Vehicles; Control of Air Pollution From Volatile Organic Compounds; Control of Air Pollution From Nitrogen Compounds; and Control of Air Pollution from Carbon Monoxide) are the only state standards that implement relevant requirements of Title I of the Act; (B) any term or condition of any preconstruction permits issued pursuant to the undesignated headings of Chapter 116 of this title (relating to Prevention of Significant Deterioration or Nonattainment Review) as necessary to implement the requirements of regulations approved or promulgated through rulemaking under Part C (Prevention of Significant Deterioration) or Part D (Nonattainment) of Title I of the Act; (C) any standard or other requirement under the Act, sec.111, relating to New Source Performance Standards (NSPS), including sec.111(d); (D) any standard or other requirement under the Act, sec.112, relating to Hazardous Air Pollutants (HAPS), including any requirement concerning accident prevention under the Act, sec.112(r)(7); (E) any standard or other requirement of the acid rain provisions of the Act or the acid rain rules; (F) any requirements established pursuant to the Act, sec.504(b) or sec.114(a)(3), regarding Monitoring, Enhanced Monitoring, and Compliance Certification; (G) any standard or other requirement governing solid waste incineration, under the Act, sec.129 (NSPS); (H) any standard or other requirement for consumer and commercial products, under the Act, sec.183(e) (Federal Ozone Measures); (I) any standard or other requirement for tank vessels, under the Act, sec.183(f), (Tank Vessel Standards); (J) any standard or other requirement of the program to control air pollution from outer continental shelf sources, under the Act, sec.328; (K) any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the Act, unless EPA has determined that such requirements need not be contained in a federal operating permit; and (L) any National Ambient Air Quality Standard or increment or visibility requirement under Part C of Title I of the Act, but only as it would apply to temporary sources permitted pursuant to the Act, sec.504(e). Except as noted in this subparagraph, ambient air quality standards, net ground level concentration limits, or ambient atmospheric concentration limits, either state or federal, are not applicable requirements under this chapter. Deviation-Any condition that indicates that an emissions unit has failed to meet an emission limitation or standard imposed by an applicable requirement. If parameter monitoring is used, a period of indeterminate compliance that may occur shall not necessarily be considered a deviation. Draft permit-The version of a federal operating permit available for purposes of public notice and affected state review under Subchapter B of this chapter (relating to Public Notification and Comment Procedures). Emission allowable under the permit-A federally enforceable permit term or condition determined at issuance to be required by an applicable requirement, that establishes an emissions limit (including a work practice standard) in the form of the applicable requirement or a federally enforceable emissions cap that the owner or operator of a site has assumed to avoid an applicable requirement to which the site would otherwise be subject. Emission unit-The smallest discrete or identifiable structure, device, item, equipment, or enclosure that constitutes origin of air pollutants as defined in this Section. fugitive emissions from individual pieces of equipment, e.g., valves, flanges, pumps, and compressors, shall not be considered an individual emission unit. Such fugitive emissions shall be collectively considered as an emission unit based on their relationship to the associated process and those emissions shall be included in the permit application. This term is not meant to alter or affect the definition of the term "unit" for purposes of the acid rain provisions of the Act. United States Environmental Protection Agency (EPA) or Administrator-The Administrator of the EPA or his designee. Final action-Issuance or denial of the proposed permit by the board or its designee after the EPA review period as provided in Subchapter D of this chapter (relating to Affected State Review, U.S. Environmental Protection Agency Review, and Citizen Petition). Fugitive emissions -Those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening. General permit -A federal operating permit that meets the requirements of sec.122.202 of this title (relating to General Permits). Major source-Any site which emits or has the potential to emit air pollutants as described in subparagraphs (A), (B), or (C) of this definition. (A) Any site which, in whole or part, is a major source under the Act, sec.112, which is defined as: (i) for pollutants other than radionuclides, any site that emits or has the potential to emit, in the aggregate, 10 tons per year (tpy) or more of any single hazardous air pollutant which has been listed pursuant to the Act, sec.112(b), 25 tpy or more of any combination of such hazardous air pollutants, or such lesser quantity as the Administrator may establish by rule; or (ii) for radionuclides, "major source" shall have the meaning specified by the Administrator by rule. (B) Any site which directly emits or has the potential to emit, 100 tpy or more of any air pollutant (including any major source of fugitive emissions of any such pollutant, as determined by rule by the United States Environmental Protection Agency). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major source, unless the stationary source belongs to one of the following categories of stationary sources: (i) coal cleaning plants (with thermal dryers); (ii) kraft pulp mills; (iii) portland cement plants; (iv) primary zinc smelters; (v) iron and steel mills; (vi) primary aluminum ore reduction plants; (vii) primary copper smelters; (viii) municipal incinerators capable of charging more than 250 tons of refuse per day; (ix) hydrofluoric, sulfuric, or nitric acid plants; (x) petroleum refineries; (xi) lime plants; (xii) phosphate rock processing plants; (xiii) coke oven batteries; (xiv) sulfur recovery plants; (xv) carbon black plants (furnace process); (xvi) primary lead smelters; (xvii) fuel conversion plant; (xviii) sintering plants; (xix) secondary metal production plants; (xx) chemical process plants; (xxi) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units (BTU) per hour heat input; (xxii) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (xxiii) taconite ore processing plants; (xiv) glass fiber processing plants; (xxv) charcoal production plants; (xxvi) fossil-fuel-fired steam electric plants of more than 250 million Btu per hour heat input; or (xxvii) any other stationary source category which as of August 7, 1980, is being regulated under the Act, sec.111 or sec.112. (C) Any site which, in whole or in part, is a major source under Part D of Title I of the Act, including: (i) any site with the potential to emit volatile organic compounds (VOC) or oxides of nitrogen in a quantity of 100 tpy or more in Collin, Dallas, Denton, or Tarrant Counties, or in any other ozone nonattainment area classified as "marginal or moderate;" 50 tpy or more in El Paso, Hardin, Jefferson, or Orange Counties, or in any other ozone nonattainment area classified as "serious;" 25 tpy or more in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, or Waller Counties, or in any other ozone nonattainment area classified as "severe;" and 10 tpy or more in any ozone nonattainment area classified as "extreme;" (ii) for Victoria County, sites with the potential to emit 100 tpy or more of VOC; (iii) for the carbon monoxide nonattainment area in El Paso County, sites with the potential to emit 100 tpy or more of carbon monoxide; (iv) for the City of El Paso, sites with the potential to emit 100 tpy or more of inhalable particulate matter (PM-10); (v) for the lead nonattainment area in Collin County, sites with the potential to emit 100 tpy or more of lead. (D) The fugitive exclusions which apply to subparagraph (B) of this definition shall also apply under subparagraph (C). (E) Notwithstanding the preceding source categories, emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources under subparagraph (A) of this definition and, in the case of any oil or gas exploration or production well (with its associated equipment), such emissions shall not be aggregated for any purpose under subparagraph (A). Permit or federal operating permit-Any federal operating permit or group of federal operating permits covering a site that is issued, renewed, amended, or revised pursuant to this chapter, or general permit or group of general permits promulgated or granted pursuant to this chapter. Permit Application -An application for a federal operating permit, permit revision, permit renewal, permit reopening, and any other such application as may be required. Permit revision -Any permit addition, significant modification, or administrative permit amendment that meets the related requirements of Subchapter C of this chapter (relating to Permit Issuances, Revisions, Reopenings, and Renewals). Potential to emit-The maximum capacity of a stationary source to emit any air pollutant under its physical and operational design or configuration. Any certified registration or preconstruction authorization restricting emissions or any physical or operational limitation on the capacity of a stationary source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable by the Administrator. This term does not alter or affect the use of this term for any other purposes under the Act, or the term "capacity factor" as used in acid rain provisions of the Act or the acid rain rules. Preconstruction authorization -Any authorization to construct or modify an existing facility or facilities under Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification). In this chapter, references to preconstruction authorization under Chapter 116 of this title also include, where appropriate, preconstruction authorization under Chapter 120 of this title (relating to Control of Air Pollution from Hazardous Waste or Solid Waste Management Facilities) or Chapter 121 of this title (relating to Control of Air Pollution from Municipal Solid Waste Management Facilities). Proposed permit -The version of a federal operating permit that the Texas Air Control Board (TACB) forwards to United States Environmental Protection Agency for a 45-day review period in compliance with Subchapter D of this chapter (relating to Affected State Review, United States Environmental Protection Agency Review, and Citizen Petition). Relevant emission unit-Those emission units having one or more applicable requirements as defined in this chapter. Renewal-The process by which a federal operating permit is reissued at the end of its term. Responsible official -One of the following: (A) for a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a federal operating permit and either: (i) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (ii) the delegation of authority to such representative is approved in advance by the TACB; (B) for a partnership or sole proprietorship: a general partner or the proprietor, respectively; (C) for a municipality, state, federal, or other public agency: either a principal executive officer or ranking elected official. For the purposes of this chapter, a principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a Regional Administrator of the United States Environmental Protection Agency); or (D) for affected sources: (i) the designated representative insofar as actions, standards, requirements, or prohibitions under the acid rain provisions of the Act or the acid rain rules are concerned; and (ii) the designated representative for any other purposes under this chapter. Significant permit modification-A revision to a federal operating permit that meets the requirements of sec.122.219 of this title (relating to Significant Permit Modifications). Site-The total of all stationary sources located on one or more contiguous or adjacent properties, which are under common control of the same person (or persons under common control). Research and development operations shall be treated as a separate site from any manufacturing facility with which they are co-located. A site may contain multiple relevant emission units and grandfathered emission units. State only requirement -A requirement which is not federally enforceable under this chapter or is not an applicable requirement under this chapter. Stationary source -Any building, structure, facility, or installation that emits or may emit any air pollutant. Title I modification -Changes at a site that qualify as a modification under Title I of the Act, sec.111 (New Source Performance Standards) or Title I of the Act, sec.112(g), or as a major modification under Part C (Prevention of Significant Deterioration) or Part D (Nonattainment Review) of Title I of the Act. sec.122.11. Grandfather Definitions for State Only Requirements. The following words and terms, when used in this section shall have the following meanings, unless the context clearly indicates otherwise. Actual grandfather emission unit (definition used for state only requirement) -An emission unit for which construction or operation started prior to September 1, 1971, and at which either: no modification has occurred since September 1, 1971 and, therefore, for which no authorization has been required under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); or modifications have been authorized only pursuant to a standard exemption under Chapter 116 of this title. Those emission units which started construction between September 1, 1971 and March 1, 1972, and which registered in accordance with Texas Health and Safety Code, sec.382.060, as that section existed prior to September 1, 1991, are also considered grandfathered units. Actual grandfather rate (definition used for state only requirement)-The maximum annual emission rate at which the emission unit actually operated and emitted prior to September 1, 1971, for 12 consecutive months, including any increases authorized by standard exemption under Chapter 116 of this title. A grandfather rate shall not be established which violates any emission limitation or standard required under any chapter of this title. Presumptive grandfather emission unit (definition for state only requirement)-An emission unit or method of operation for which construction or operation started prior to March 1, 1972, unless the total annual maximum emission rate or operational limits that are related to the annual emissions (e.g., production, fuel firing, throughput, sulfur content, operating hours, etc., as appropriate) for the emission unit are established in a permit, special permit, or special or standard exemption issued pursuant to Chapter 116 of this title. Presumptive grandfather rate (definition used for state only requirement)- The maximum annual emission rate or data that are related to emissions (e.g., production, fuel firing, throughput, sulfur content, etc., as appropriate) which are selected to reasonably approximate the actual grandfather rate based upon a review of actual historical operations using the procedure outlined in sec.122.132(a)(5) of this title (relating to Application and Required Information). A grandfather rate shall not be established which violates any emission limitation or standard required under any chapter of this title. sec.122.12. Acid Rain Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Acid rain compliance option-One of the methods of compliance used by an affected unit as described in a compliance plan submitted and approved in accordance with the acid rain rules or the Act, sec.407. Acid rain permit -The legally binding portion of the federal operating permit issued by the Texas Air Control Board (TACB) under this chapter including any permit revisions, specifying the acid rain requirements applicable to an affected source, to each affected unit at an affected source, and to the owners and operators and the designated representative of the affected source or the affected unit. Acid rain rules -The regulations promulgated pursuant to the acid rain provisions of the Act contained in 40 CFR Part 72, et al. Actual grandfather rate (definition used for state only requirement)-For affected units, auxiliary support systems for affected units, simple combustion turbines, and units which serve a generator with a nameplate capacity of 25 megawatt or less, the actual grandfather rate for actual grandfather emission units shall be the maximum annual emission rate or data related to emissions (e.g., fuel firing, sulfur content, etc., as appropriate) at the documented Maximum Continuous Rating, on a continuous operating basis, of generating units used to meet or to prepare to meet requirements of the electric power grid. Each actual grandfather emission unit that is an affected unit shall be operated in compliance with applicable provisions of the Acid Rain Rules, as defined in this section, including any emission allowance limitations. Affected source -A site that includes one or more affected units. Affected unit-A unit that is subject to emission reduction requirements or limitations under the acid rain rules. Allowance-An authorization, under the acid rain rules, by the United States Environmental Protection Agency to emit up to one ton of sulfur dioxide during or after a specified calendar year. CEM and COM -Abbreviations for continuous emission monitor(s) and a continuous opacity monitor(s), respectively. Certificate of representation-The completed and signed submission required by the acid rain rules, of a designated representative for an affected source or a group of identified affected sources authorized to represent the owners and operators of such source(s) and of the affected units at such source(s) with regard to matters of the acid rain requirements. Designated representative -The responsible individual authorized by the owners and operators of an affected source and of all affected units at the site, as evidenced by a certificate of representation submitted in accordance with the acid rain rules, to represent and legally bind each owner and operator, as a matter of federal law, in matters pertaining to the acid rain requirements. Such matters include, but are not limited to: the holdings, transfers, or dispositions of allowances allocated to a unit; and the submission of or compliance with acid rain permits, permit applications, compliance plans, emission monitoring plans, continuous emissions monitor (CEM), and continuous opacity monitor (COM) certification notifications, CEM and COM certification and applications, quarterly monitoring and emission reports, and annual compliance certifications. Whenever the term "responsible official" is used in this chapter, it shall refer to the "designated representative" with regard to all matters under the acid rain requirements. Maximum continuous rating-The heat input required to attain the maximum documented steam conditions or to achieve the maximum documented electrical output. Unit-For the purposes of the acid rain provisions of the Act, a fossil-fuel fired combustion device. Upgraded units -An affected unit that did not serve a generator with a nameplate capacity greater than 25 megawatts on November 15, 1990, but serves such a generator after November 15, 1990. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327949 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Subchapter B. Permit Requirements Applicability 31 TAC sec.sec.122.120, sec.122.122 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.120. Applicability. The owner or operator of a site shall submit an application(s) to the Texas Air Control Board (TACB) for a federal operating permit under the requirements of this chapter if the site has one or more of the following: (1) any major source as defined in sec.122.10 of this title (relating to General Definitions); (2) any affected source as defined in sec.122.12 of this title (relating to Acid Rain Definitions); (3) any solid waste incineration unit required to obtain a federal operating permit pursuant to the Act, sec.129(e) of Title I; (4) any non-major source which the U.S. Environmental Protection Agency, through further rulemaking, has designated as no longer exempt from the obligation to obtain a federal operating permit. For the purposes of this section, non-major source shall be defined as: (A) any source, including an area source, subject to a standard, limitation, or other requirement under the Act, sec.111 (NSPS); (B) any source, including an area source, subject to a standard or other requirement under the Act, sec.112 (Hazardous Air Pollutants), except that a source is not required to obtain a permit solely because it is subject to regulations or requirements under the Act, sec.112(r) (Prevention of Accidental Releases); or (C) any source in a source category designated by the Administrator pursuant to Title III of the Act. sec.122.122. Potential to Emit. (a) For purposes of determining applicability of the Federal Operating Permit program under this chapter, the owner or operator of stationary sources without any other federally enforceable emission rate may limit their sources' potential to emit by maintaining a certified registration of emissions, which shall be federally enforceable. Emission rates in permits, standard exemptions, other preconstruction authorizations, and registrations of emissions provided for under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construciton or Modification) are also federally enforceable emission rates. (b) All representations in any registration of emissions under this section with regard to emissions shall become conditions upon which the stationary source shall operate. It shall be unlawful for any person to vary from such representation unless the registration is first revised. (c) The registration of emissions shall include documentation of the basis of emission rates and a certification, in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official), that the maximum emission rates listed on the registration reflect the reasonably anticipated maximums for operation of the stationary source. (d) In order to qualify for registrations of emissions under this section, the maximum emission rates listed in the registration must be less than those rates defined for a major source in sec.122.10 of this title (relating to General Definitions). (e) The certified registrations of emissions and records demonstrating compliance with such registration shall be maintained on-site, or at an accessible designated location, and shall be provided, upon request, during regular business hours to representatives of the Texas Air Control Board or any air pollution control agency having jurisdiction. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327950 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Permit Application 31 TAC sec.sec.122.130, 122.132-122.134, 122.136, 122.138, 122. 139 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.130. Responsibility to Apply. (a) General requirement. After the effective date of this chapter, the owner or operator shall submit to the Texas Air Control Board (TACB) a timely and complete permit application for each site subject to the requirements of this chapter and in accordance with this section. (b) Interim program. The following sites are subject to the interim federal operating permit program and as such, the owners or operators of these sites shall submit initial permit applications according to the application submittal schedule for the Interim Program. (1) any site with an affected source as defined in sec.122.12 of this title (relating to Acid Rain Definitions); (2) any site whose primary Standard Industrial Classification (SIC) code (as described in the Standard Industrial Classification Manual, 1987) is one of the following (for purposes of this subsection, each site shall have only one primary SIC code): (A) Petroleum and Natural Gas, 1311; (B) Natural Gas Liquids, 1321; (C) Electric Services, 4911; (D) Natural Gas Transmission, 4922; (E) Natural Gas Transmission and Distribution, 4923; or (F) Petroleum Bulk Stations and Terminals, 5171. (c) Application submittal schedule for the interim program. (1) No later than six months after the effective date of the interim federal operating permit program, the designated representative of each affected source shall submit a permit application for at least the affected units at the site. Regardless of the effective date of the program and the requirement to file a permit application defined in this section, applications for initial Phase II acid rain permits shall be submitted to the TACB no later than January 1, 1996, for sulfur dioxide, and by January 1, 1998, for nitrogen oxides pursuant to the Act, sec.407. This subsection shall not apply to affected sources that elect to become affected pursuant to the Act, sec.410. (2) No later than six months after the effective date of the interim federal operating permit program, the owner or operator of any site listed in subsection (b)(2) of this section shall submit a permit application, except that if any owner or operator has more than one site listed in subsection (b) (2) of this section, then the owner or operator shall submit permit applications for no less than 10% of such sites. (3) No later than 12 months after the effective date of the interim federal operating permit program, the owner or operator shall submit an initial permit application for those remaining site(s) listed in subsection (b)(2) of this section which did not submit an application pursuant to subsection (c)(2) of this section. (d) Application submittal schedule after full program approval. All sites, other than those identified in subsection (b) of this section, which satisfy the criteria of sec.122.120 of this title (relating to Applicability), shall be subject to the fully approved federal operating permit program and shall submit initial permit applications no later than 12 months after the effective date of the fully approved federal operating permit program. (e) Owners or operators of sites that become subject to this chapter after the effective date of either the interim or full program shall submit permit applications no later than 12 months after the issuance or approval date of the preconstruction authorization required under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification). sec.122.132. Application and Required Information. (a) A permit application shall include any information, including confidential information, deemed necessary by the Texas Air Control Board (TACB) to determine the applicability of, or to codify any applicable requirement, except that applications for a general permit shall only be required to provide the information necessary to determine qualification for, and to assure compliance with, the general permit. The federal operating permit application shall include, but is not limited to, a General Application Form for Federal Operating Permit, all information requested by that form, and the information described as follows: (1) for each emission unit, or group of similar emission units: (A) information identifying each applicable requirement, any corresponding emission limitation, and any corresponding monitoring, reporting, and recordkeeping requirements; (B) information identifying potentially applicable requirements for that particular type of emission unit and the basis for the determination that those applicable requirements do not apply; (2) a proposed monitoring, testing, recordkeeping, and reporting protocol for each relevant emission unit at the site; (3) information as requested by the nationally standardized forms for acid rain portions of permit applications and compliance plans, as required by the acid rain rules; (4) a statement certifying that a risk management plan, if applicable, or a schedule to submit such plan has been submitted in accordance with the Act, sec.112(r)(7); (5) (state-only requirement) the following identifications on the application: (A) Each grandfather unit at the site shall be identified as a presumptive grandfather unit or an actual grandfather unit, regardless of whether or not that unit is a relevant emission unit. (B) Each emission unit that would be a presumptive grandfather except for the fact that the total annual maximum emission rate or operational limits that are related to the annual emissions (e.g., production, fuel firing, throughput, sulfur content, operating hours, etc., as appropriate) for the emission unit are established in a permit, special permit, or special or standard exemption issued pursuant to Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification). (i) For each emission unit, the application shall identify the total annual maximum emission rate or operational limits that were previously defined and documented, and the permit, special permit, or special or standard exemption number in which this information was established and any documentation or basis for that determination. (ii) If, during the permit application review, the TACB determines that such emission rates or operational limits that were defined or documented do not reflect actual grandfather rates, then the applicant must supply the information required in subparagraphs (C) or (D) of this paragraph to establish the presumptive grandfather rate. (C) The application shall provide information to define and document the presumptive grandfather rate for each unit defined in subparagraph (A) of this paragraph at the site. Information provided in this section to define and document the presumptive grandfather rate shall include available data related to emissions prior to January 1, 1994 as follows. (i) The documentation of the presumptive grandfather emission rate shall be based on the best available of data on the emission rate, equipment configuration, and other emissions-related data during the seven-year period prior to January 1, 1994 which best reflect the presumptive grandfather rate. (ii) The best available data would be the average of 24 consecutive months of emissions data or data that can be related to emissions (such as production rate, fuel firing, throughput, sulfur content, etc.) during the seven-year period referenced in clause (i) of this subparagraph. Less than 24 consecutive months of data may be used, upon approval by the TACB during the permit application review, if it is more representative of the range of operations which could be reasonably expected from the existing equipment configuration. (iii) Any other method proposed by the applicant during the permit application review and that the Executive Director approves as representative of the operations and resulting emissions which may reasonably have occurred prior to 1971 may be used to define the presumptive grandfather rate. (D) In any event, the actual grandfather rate for the emission unit shall be established if the applicant provides 12 consecutive months of emissions or emissions-related data from prior to September 1, 1971 documenting the operations prior to September 1, 1971. Less than 12 consecutive months of data prior to September 1, 1971 may be used, upon approval by the TACB, if it is determined by the TACB during the permit application review that there is sufficient data to demonstrate that it reflects operations prior to September 1, 1971. (E) Upon issuance of the permit, the presumptive or actual grandfather rate established by the data submitted shall be the grandfather rate in subparagraph (D) of this paragraph which the unit may not operate without first obtaining or qualifying for preconstruction authorization in accordance with the requirements of Chapter 116 of this title. This grandfather rate does not remove the responsibility of the applicant to obtain or qualify for any necessary preconstruction authorization in accordance with the requirements of Chapter 116 of this title prior to making any physical changes or constructing a new facility source at the emission unit regardless of whether this grandfather rate is exceeded as a result of that physical change or construction. A grandfather rate shall not be established which violates any emission limitation or standard required under any chapter of this title. The establishment of this grandfather rate does not remove any liabilities or potential enforcement action for past or future exceedances of the actual grandfather rate in violation of Chapter 116 of this title. (b) Each federal operating permit application shall include a compliance plan. Such plan shall contain the following: (1) a description of the compliance status of each relevant emission unit at the site with respect to all applicable requirements; (2) a statement that all relevant emission units at the site will: (A) except as provided in paragraph (3) of this subsection, continue to comply with the applicable requirements; and (B) comply, as required, with any applicable requirements that become effective during the permit term; (3) for those relevant emissions units not in compliance with applicable requirements: (A) a narrative description of how the emission unit will come into compliance with the applicable requirements; (B) a compliance schedule containing a schedule of remedial measures, including, but not limited, to an enforceable sequence of actions; and (C) a schedule for submission of certified progress reports. After issuance of the permit, the certified progress reports shall be submitted no less frequently than every six months. (c) A compliance certification shall be included with the federal operating permit application consistent with the requirements of sec.122.143 of this title (relating to Permit Conditions). (d) The applicant shall provide to the U.S. Environmental Protection Agency a copy of the permit application. (e) A responsible official shall certify, consistent with sec.122.165 of this title (relating to Certification by a Responsible Official), all information submitted under this section. sec.122.133. Timely Application. (a) A timely application for a site applying for a federal operating permit for the first time is one that is submitted in accordance with sec.122.130 of this title (relating to Responsibility to Apply). (b) A timely application for a significant permit modification to a federal operating permit is one filed no later than 12 months after the owner or operator has obtained or qualified for any preconstruction authorization required by TACB Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification). (c) A timely application for a permit renewal is one that is submitted at least six months, but no earlier than 18 months, prior to the date of permit expiration. sec.122.134. Complete Application. (a) To be complete, an application shall provide all information required in sec.122.132 of this title (relating to Application and Required Information) except that: (1) applications for revision to a federal operating permit shall only be required to provide information related to the proposed change; and (2) applications for a general permit shall only be required to provide the information necessary to determine qualification for, and to assure compliance with, the general permit. (b) The application shall be deemed complete, unless the Texas Air Control Board requests additional information or otherwise notifies the applicant of incompleteness within 60 days of receipt. sec.122.136. Application Deficiencies. (a) Any applicant who fails to submit any relevant facts or who has submitted incorrect information in a federal operating permit application shall, upon becoming aware of such failure or incorrect submittal, submit such supplementary facts or corrected information no later than 60 days after such discovery. (b) An applicant shall provide additional information as necessary to address any applicable requirements, as defined in this chapter, that this site becomes subject to after the date the owner or operator filed a complete application. (c) If while processing an application that has been deemed to be complete, the Texas Air Control Board determines that additional information is necessary to evaluate or take final action on that application, it may request such information in writing and set a reasonable deadline for a response. sec.122.138. Application Shield. If the owner or operator of a site submits a timely and complete application(s) for permit issuance, significant permit modification to a permit, or renewal, the site's failure to have a federal operating permit is not a violation of this chapter until the Executive Director takes final action on the permit application. This protection shall cease to apply if, subsequent to the application being deemed complete, the applicant fails to submit in writing to the Executive Director, by the deadline specified, any additional information identified as necessary to process the application. sec.122.139. Application Review Schedule. The Board shall: (1) under an interim program, for those sites required to file initial applications within the first year of the effective date of the interim program, take final action on at least one-third of those applications annually over a period not to exceed three years after such effective date; (2) under the fully approved program, for those sites required to file initial applications prior to or within one year of the effective date of the fully approved program, take final action on at least one-third of those applications annually over a period not to exceed three years after such effective date; (3) except as noted in paragraph (1) or (2) of this section, take final action on an application for a permit, significant permit modification, or permit renewal within 18 months of the date on which the Texas Air Control Board (TACB) deemed an application complete; and (4) take final action on any complete permit application containing an early reduction demonstration under the Act, sec.112(i)(5), within nine months of receipt of the complete application. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327951 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Permit Content 31 TAC sec.sec.122.141, 122.143, 122.145 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.141. Authority. (a) Federal operating permits may contain general and special terms and conditions. The permittee shall comply with any and all such terms and conditions. (b) The board shall not grant a variance, pursuant to the Texas Health and Safety Code, sec.382.028, from the requirements of this chapter to apply for or operate under a permit. sec.122.143. Permit Conditions. Unless otherwise specified in the permit, the permittee shall comply with each of the following conditions. (1) General permit conditions. (A) Compliance with the federal operating permit does not relieve the permittee's obligation to comply with any other applicable Texas Air Control Board (TACB) rules, regulations, or orders. (B) The federal operating permit shall expire five years from the issuance of the proposed permit. (C) The permittee shall allow representatives from the TACB or the local air pollution control program having jurisdiction to perform the following: (i) enter upon the permittee's premises where an emission unit is located or emissions-related activity is conducted, or where records must be kept under the conditions of the permit; (ii) have access to and copy any records that must be kept under the conditions of the permit; (iii) inspect, at any time other than when the presence of the TACB personnel would interfere with the ability of the permittee to respond to an emergency situation, any emission unit, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit; and (iv) sample or monitor substances or parameters for the purpose of assuring compliance with the permit or applicable requirements at any time. (D) Records required under this permit shall be provided, upon request, to representatives from the TACB or the local air pollution control program having jurisdiction within a reasonable period of time. (E) The permittee shall comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or revision; or for denial of a permit renewal application. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. (F) The permit may be revised, revoked, reopened and reissued, or terminated for cause as defined in sec.122.231 of this title (relating to Permit Reopenings). The filing of a request by the permittee or notice of intent by the TACB for a permit revision, revocation and reissuance, or termination, or of a notification of planned changes or anticipated noncompliance does not stay any permit condition. (G) Unless the time is extended by the Board or its designee, the permittee shall furnish within 60 days any information that the Executive Director may request in writing to determine whether cause exists for revising, revoking and reissuing, or terminating the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the Executive Director, copies of records required to be kept by the permit, including any confidential information. It may be required that such records be sent directly to the U.S. Environmental Protection Agency (EPA) along with any claim of confidentiality. Any such claim should be made in accordance with federal law, including 40 Code of Federal Regulations 2. (H) If at the time of promulgation of a new applicable requirement, the permit has three or more years remaining in its term, the permittee shall request a reopening and revision of the permit within 12 months of promulgation of a new applicable requirement not already incorporated into a permit. No such reopening is required if the compliance date of the requirement is later than the permit expiration date, or if the new requirement is incorporated in any federal operating permit held by the site which addresses the emission unit(s) subject to the new requirement. (I) The permittee shall pay fees to the TACB consistent with the fee schedule in sec.101.27 of this title (relating to Emission Fees). (J) Each portion of the permit is severable. Permit requirements in unchallenged portions of the permit shall remain valid in the event of a challenge to other portions of the permit. (K) The permit does not convey any property rights of any sort, or any exclusive privilege. (2) Recordkeeping conditions. The permittee shall maintain records of all required monitoring data and support information for a period of at least five years from the date of the monitoring sample, measurement, report, or application. Support information may include, but shall not be limited to, the data from all calibration and maintenance records and all stripchart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit. The data may be stored electronically. However, it shall be made available, within a reasonable period of time, in a readable electronic or hard copy form upon request by an authorized representative of the TACB or any local air pollution control program having jurisdiction. (3) Reporting conditions. The permit shall incorporate all applicable monitoring data reporting requirements as follows. (A) After issuance of the permit, reports of any required monitoring shall be submitted to the TACB at least every six months or more frequently if required by an applicable requirement. All instances of deviations shall be clearly identified in such reports. All required reports shall be certified by a responsible official. (B) Within two weeks after occurrence, the permittee shall report, in writing, to the TACB any deviations, the probable cause of such deviations, and any corrective actions or preventative measures taken, except in such cases that all information required under this subsection is submitted, in writing, under subparagraph (C) of this paragraph. (C) Emissions from any upset, start-up, shutdown, or maintenance activities shall be reported as required under Chapter 101 of this title (relating to Notification of Upset and Maintenance Requirements). (4) Compliance certification conditions. After issuance of the permit, compliance certifications shall be submitted to the TACB and EPA at least every 12 months, or more frequently if required by an applicable requirement. The compliance certification shall include at a minimum: (A) the identification of each term, condition, or applicable requirement of the permit for which the permittee shall certify compliance; (B) the compliance status of the relevant emission units listed in the permit relative to any applicable term, condition, or applicable requirement over the entire 12-month certification period; (C) a statement of whether compliance was continuous or intermittent; (D) the method(s) used for determining the compliance status of each relevant emission unit; and (E) a certification by a responsible official, consistent with sec.122.165 of this title (relating to Certification by a Responsible Official), of all the information submitted under this section. sec.122.145. Permit Content Requirements. (a) Each federal operating permit shall contain terms and conditions regarding emission limitations and standards, compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the applicable requirements. Any document (including reports) submitted to the Texas Air Control Board (TACB) that is specifically required by a permit shall contain a certification by a responsible official. (b) Each permit shall contain the following terms and conditions with respect to monitoring: (1) all emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any enhanced monitoring procedures and methods promulgated pursuant to the Act, sec.504(b) and sec.114(a) (3); (2) where the applicable requirements do not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), terms and conditions which require periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the site's compliance with the permit. Such monitoring conditions shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping may be sufficient to meet the requirements of this paragraph; and (3) conditions, as necessary, concerning the use, maintenance, and where appropriate, installation of monitoring equipment or methods. (c) Each permit shall contain terms and conditions that would require recordkeeping of monitoring information including, but not limited to: (1) the date, place as defined in the permit, and time of sampling or measurements; (2) the date(s) analyses were performed; (3) the company or entity that performed the analyses; (4) the analytical techniques or methods used; (5) the results of such analyses; and (6) the relevant operating conditions which are deemed necessary to characterize emission rates at the time of sampling or measurement. (d) For sites with emission units not in compliance with the applicable requirements at the time of issuance, the permit shall: (1) contain a compliance schedule consistent with sec.122.132(b)(3)(B) of this title (relating to Application and Required Information); and (2) require progress reports consistent with sec.122. 132(b)(3)(C) of this title. The progress reports shall include: (A) dates for achieving the activities, mile-stones, or compliance required in the schedule of compliance, and dates when such activities, milestones, or compliance were achieved; and (B) an explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted. (e) At the discretion of the TACB and based upon a request and sufficient demonstration by the applicant, a federal operating permit may establish certain interpretations of specific language and definition of specific terms in an applicable requirement. These interpretations by the TACB, for the purpose of determining compliance with the specific applicable requirement, shall not be modified by the TACB until notification is provided to the permittee. Within 90 days of notification of a change in interpretation by the TACB, the permittee shall apply for the appropriate permit revision to reflect the new interpretation of the applicable requirement. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327952 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Public Notification and Comment Procedures 31 TAC sec.sec.122.150, 122.152-122.155 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.150. Applicability. (a) Permit, significant permit modification, or renewals. Any person who applies for a permit, a significant permit modification, or a permit renewal shall be required to provide for public notification under the procedures in this subchapter. (b) General permits. General permits are not subject to the public notification and comment procedures of this subchapter. Procedural requirements for general permits are listed under sec.122.202 of this title (relating to General Permits). (c) Reopenings. Any permittee whose federal operating permit is reopened under sec.122.231 of this title (relating to Permit Reopenings) shall be required to provide for public notification of such reopening and revision of the permit under the procedures in this subchapter. sec.122.152. Public Notification Requirements. (a) Notification by applicant. For those federal operating permits or permit applications meeting the criteria in sec.122.150 of this title (relating to Applicability), the Texas Air Control Board (TACB) shall direct the applicant to conduct public notice of the draft operating permit. The public notice shall be conducted in accordance with sec.122.153 of this title (relating to Public Notice Format). (b) Availability of application for review. The TACB shall make available for public inspection the following information related to the application: the completed application (except sections relating to confidential information), the draft federal operating permit, the compliance plan, the compliance certification, and monitoring reports, if required. All such information shall be available for inspection throughout the comment period, and thereafter, during normal business hours, at the TACB Austin office and at the appropriate TACB regional office in the region where the site is located. (c) The TACB shall provide a copy of the notice of the draft permit, specified in sec.122.153 of this title, to any person upon written request. (d) Notification of TACB and others. When newspaper notices are published consistent with sec.122.153 of this title, the applicant shall furnish a copy of such notices and date of publication to the TACB in Austin; the U.S. Environmental Protection Agency's Regional Administrator in Dallas; all local air pollution control agencies with jurisdiction in the county in which the site is located; and the air pollution control agency of any affected state. Along with such notices furnished to the TACB, the applicant shall certify in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official), that the signs required by sec.122. 154 of this title (relating to Sign Posting Requirements) have been posted consistent with the provisions of that section. sec.122.153. Public Notice Format. (a) Publication in public notices section of newspaper. At the applicant's expense, notice of intent to obtain a federal operating permit, a significant permit modification, a reopening to a permit, or a permit renewal, shall be published in the public notice section of two successive issues of a newspaper of general circulation in the municipality in which the site is located, or in the municipality nearest to the location of the site. The notice shall contain the following information: (1) permit application number; (2) applicant name and address; (3) activity or activities involved in the federal operating permit application or reopening; (4) description of the location of the site or proposed location of the site; (5) the air pollutants involved in any significant permit modification; (6) location and availability of copies of the completed permit application, the draft permit, and all other relevant supporting materials; (7) description of the comment procedures, including the duration of the comment period and a statement of procedures to request a hearing; (8) notification that a person who may be affected by the emission of air pollutants from the site is entitled to request a hearing pursuant to sec.122. 316 of this title (relating to Hearing and Comment Procedures); and (9) name, address, and phone number of the TACB regional office to be contacted for further information. (b) Publication elsewhere in the newspaper. Another notice with a size of at least 96.8 square centimeters (15 square inches), and whose shortest dimension is at least 7.6 centimeters (three inches), shall be published in a prominent location elsewhere in the same issue of the newspaper and shall contain the information specified in subsection (a)(1)-(4) of this section and note that additional information is contained in the notice published pursuant to subsection (a) of this section in the public notice section of the same issue. sec.122.154. Sign Posting Requirements. (a) At the applicant's expense, a sign or signs shall be placed at the site declaring the filing of an application for a permit and stating the manner in which the Texas Air Control Board (TACB) may be contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements: (1) signs shall consist of dark lettering on a white background and shall be no smaller than 18 inches by 28 inches; (2) signs shall be headed by the words "APPLICATION FOR FEDERAL OPERATING PERMIT" in no less than two-inch, bold-face, block-printed capital lettering; (3) signs shall include the words "APPLICATION NO." and the number of the permit application in no less than one-inch boldface, block-printed capital lettering (more than one number may be included on the signs if the respective public comment periods coincide); (4) signs shall include the words "for further information contact" in no less than 1/2-inch lettering; (5) signs shall include the words "Texas Air Control Board," and the address of the appropriate TACB regional office in no less than one-inch, boldface, capital lettering and 3/4-inch, boldface, lower-case lettering; and (6) signs shall include the phone number of the appropriate TACB regional office in no less than two-inch, boldface numbers. (b) The sign or signs shall be in place by the date of publication of the newspaper notice required by sec.122.153 of this title (relating to Public Notice Format) and shall remain in place and legible throughout the period of public comment provided for in sec.122.155 of this title (relating to Public Comment Period). (c) Each sign placed at the site shall be located within ten feet of each (every) property line paralleling a street or other public thoroughfare. Signs shall be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare. (d) The TACB may approve variations from the requirements of subsection (c) of this section if the applicant has demonstrated that it is not practical to comply with the specific requirements of subsection (c) of this section and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval from the TACB under this subsection must be received before posting signs for purposes of satisfying the requirements of this section. (e) These sign requirements do not apply to properties under the same ownership which are noncontiguous and/or separated by intervening public thoroughfares, unless directly involved by the permit application. sec.122.155. Public Comment Period. (a) A 30-day public comment period shall be held by the Board or its designee on a federal operating permit or renewal application, or on a reopening of a federal operating permit. (b) The Board or its designee shall receive public comment for 30 days after the last day on which notice of the public comment period is published. During the 30-day public comment period, any person may submit written comments on the draft permit or may, in writing, request a notice and comment hearing pursuant to sec.122.316 of this title (relating to Hearing and Comment Procedures for Operating Permits). (c) After the public comment period and the conclusion of any notice and comment hearing convened pursuant to Subchapter D of this chapter (relating to Affected State Review, U.S. Environmental Protection Agency Review, and Citizen Petition), the Board or its designee shall send notice of its proposed final action on the permit application, or renewal application or on the reopening of a federal operating permit, to any person who commented during the public comment period, and to the applicant. The notice shall include: (1) the response to any comments submitted during the public comment period; (2) identification of any change in the conditions in the draft permit and the reasons for the change; and (3) a description of the process for citizen petitions to the U.S. Environmental Protection Agency (EPA) pursuant to sec.122.312 of this title (relating to U.S. Environmental Protection Agency Review). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327953 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Miscellaneous 31 TAC sec.sec.122.161, 122.163-122.165 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.161. Miscellaneous. (a) Unless specifically noted otherwise, requirements under this chapter do not supersede, substitute for, or replace any requirement under any other rule, regulation, or order of the Texas Air Control Board. (b) None of the requirements in this chapter shall be construed as prohibiting the construction of new or modified facilities, provided that the owner or operator has obtained any necessary preconstruction authorization, as defined in sec.122.10 of this title (relating to Definitions). (c) The Act, sec.112(g), concerning modifications of sources of hazardous air pollutants, shall apply only to those sites satisfying the criteria of sec.122.130 of this title (relating to Responsibility to Apply). The Act, sec.112(g), shall apply at the earliest time at which those sites are required to apply in accordance sec.122.130 of this title. sec.122.163. Effective Date. (a) Compliance with the requirements of this chapter will be required on the date of approval, as published in the Federal Register, of the Texas Air Control Board's (TACB) federal operating permit program by the U.S. Environmental Protection Agency. (b) Sites satisfying the criteria of sec.122.120 of this title (relating to Applicability) become subject to this chapter either on the effective date of this chapter or upon issuance or approval of a preconstruction authorization required by Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification), whichever is later. (c) Notice shall be published by the TACB in the Texas Register of the effective date of the interim federal operating permit program and the fully approved program. Failure of the TACB to publish shall not affect the effective program dates. sec.122.164. Confidential Information. Any information provided to the Texas Air Control Board pursuant to this chapter that relates to secret processes or methods of manufacture or production may be identified as confidential when submitted. Any information so identified is entitled to protection from disclosure to the extent provided by law. If confidential information is submitted, an unclassified synopsis of confidential information shall be provided to ensure a complete public record file. Any information required to be submitted to the U.S. Environmental Protection Agency (EPA) may be submitted pursuant to EPA's procedures governing confidential information. sec.122.165. Certification by a Responsible Official. Any certification submitted pursuant to this chapter shall contain a certification of truth, accuracy, and completeness by a responsible official. Unless specified otherwise, any certification required under this chapter shall state that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete. The Texas Air Control Board shall be notified, pursuant to sec.122.211 of this title (relating to Administrative Permit Amendments), a new responsible official. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327954 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Subchapter C. Permits Issuances, Revisions, Reopenings, and Renewals Permit Issuance 31 TAC sec.sec.122.201, 122.202, 122.204 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistnent with the policy and purposes of the TCAA. sec.122.201. Permits. (a) A federal operating permit may be issued by the Board or its designee only if all of the following conditions have been met: (1) the Texas Air Control Board has received a complete permit application; (2) the applicant has complied with the requirements for public participation under Subchapter B of this chapter (relating to Permit Requirements); (3) the requirements for notifying and responding to affected states under Subchapter D of this chapter (relating to Affected State Review, U.S. Environmental Protection Agency Review and Citizen Petition) have been satisfied; (4) the conditions of the permit provide for compliance with all applicable requirements and the requirements of this chapter; and (5) the U.S. Environmental Protection Agency (EPA) has received a copy of the proposed permit, any notices required, and has not objected to issuance of the proposed federal operating permit within the time period specified for the EPA review in Subchapter D of this chapter. (b) All initial federal operating permits, and all subsequently issued or renewed permits, shall be issued by the Board or its designee with terms not to exceed five years from the issuance of the proposed permit. (c) Final action by the Board or its designee on an application for a federal operating permit shall be the issuance or denial of the proposed permit as provided in Subchapter D of this chapter. (d) The Board or its designee may issue more than one federal operating permit at a site. (e) General permits shall not be required to meet the requirements of this section. (f) Except as otherwise provided in sec.122.138 of this title (relating to Application Shield) , the owner or operator of a site which satisfies the criteria of sec.122.120 of this title (relating to Applicability) shall not operate such site unless the owner or operator has obtained the authority to do so under this chapter. sec.122.202. General Permits. (a) The Texas Air Control Board (TACB) may adopt a general permit covering numerous similar stationary sources if the following conditions are satisfied: (1) the conditions of the general permit provide for compliance with all applicable requirements and the requirements of this chapter; (2) the U.S. Environmental Protection Agency is provided the opportunity to object and affected state(s) are provided the opportunity to comment on the general permit prior to its final adoption pursuant to paragraph (3) of this subsection; and (3) adoption of the general permit complies with the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a). (b) After adoption of a general permit, such permit shall be listed in the General Permit List. Pursuant to the Texas Health and Safety Code, sec.382. 051(b), the permit listed in the General Permit List as filed in the Secretary of State's Office and herein adopted by reference, satisfies the permit requirements of the Texas Health and Safety Code, sec.382.054. (c) Each general permit shall identify the terms and conditions with which stationary sources shall comply. (d) Owners or operators of stationary sources that would qualify for a general permit may apply to the Board or its designee for approval under the terms and conditions of the general permit. Those owners or operators of stationary sources that apply for a general permit in accordance with this section shall satisfy the requirements of Subchapter B of this chapter (relating to Permit Requirements). An application for a general permit shall include all information necessary to determine qualification for, and to assure compliance with, the general permit. (e) If the applicant satisfies the requirements of a timely and complete application, the applicant may operate under the application shield until such time as the Board or its designee grants or denies the application for the general permit. (f) The Board or its designee shall grant a request for authorization to operate under a general permit to owners or operators of stationary sources that qualify. Such a grant shall not be a final action by the TACB, and therefore, is not subject to judicial review. (g) The owner or operator of a stationary source shall be subject to enforcement action for operation without a permit if the stationary source, having been granted a general permit, is later determined not to qualify for the conditions and terms of the general permit. (h) General permits shall not be authorized for affected units under the acid rain program. (i) The Board may revise or repeal any general permit on the General Permit List pursuant to the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a). Subsequent to such action, and if the grantee's authority to operate under a general permit is affected by such action, the grantee of the revised or repealed permit shall apply for a federal operating permit. If the grantee's authority to operate under a general permit is affected by such action and the grantee wishes to retain authority to operate under a general permit, the grantee shall: (1) apply by the date specified by the new or revised general permit, but no later than 12 months after the effective date of the new general permit; (2) prior to applying for the new or revised general permit, continue to comply with the terms and conditions of its existing general permit; and (3) subsequent to applying for the new or revised general permit, comply with the terms and conditions of the new general permit, rather than the terms and conditions of the existing permit. sec.122.204. Temporary Sources. (a) A temporary source is a stationary source which changes location to another site at least once during any five-year period. (b) Any temporary source which satisfies the criteria of sec.122.120 of this title (relating to Applicability) shall apply to the Texas Air Control Board (TACB) for a federal operating permit consistent with this chapter. (c) Each temporary source which is located at a site for less than six months shall not affect the determination of major for other stationary sources at a site under this chapter, nor does this addition of a temporary source trigger the requirement to revise the existing permit at the site. Each temporary source shall maintain records of duration of its stay at a site. (d) Applications by temporary sources shall include all information required under Subchapter B of this chapter (relating to Permit Requirements). (e) The Board or its designee may issue a single permit authorizing emissions from similar operations by the same temporary source at multiple temporary locations. Any permit issued to a temporary source shall meet all requirements under this chapter for issuance of a federal operating permit. (f) The owner or operator of a temporary source, permitted under this chapter, shall notify the TACB at least 10 days in advance of each change in location, unless the Board or its designee allows for a shorter notice due to an emergency. (g) No affected units under the acid rain program shall be permitted as a temporary source. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327955 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Permit Revisions 31 TAC sec.sec.122.210-122.213, 122.215-122.217, 122.219-122.221 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.210. Applicability. (a) Except as provided in sec.122. 221 of this title (relating to Operational Flexibility), the permittee shall submit an application to the Texas Air Control Board for a revision to a federal operating permit under the requirements of this subchapter for those changes or activities which affect or add one or more applicable requirements on any relevant emission unit. (b) Changes which qualify under sec.122. 211 of this title (relating to Administrative Permit Amendments) shall follow the procedural requirements in sec.122.212 of this title (relating to Administrative Permit Amendment Application) and sec.122.213 of this title (relating to Administrative Permit Amendment Procedures). (c) All other changes or activities at the site are not subject to the requirements of this chapter. sec.122.211. Administrative Permit Amendments. A change at a site may qualify as an administrative permit amendment if the change: (1) corrects typographical errors; (2) identifies a change in the name, address, or phone number of any person identified in the permit, e.g., responsible official, or provides a similar minor administrative change at the site; (3) requires more frequent monitoring or reporting by the permittee; (4) allows for a change in ownership or operational control of a site where the Texas Air Control Board (TACB) determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the TACB; and (5) is similar to those in paragraphs (1)-(4) of this section. sec.122.212. Administrative Permit Amendment Application. Applications for changes that qualify under this section shall be submitted by the permittee no later than 90 days after the owner or operator has obtained or qualified for any preconstruction authorization required by Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification) or 90 days after the change prompting the administrative amendment request. sec.122.213. Administrative Permit Amendment Procedures. (a) The Board or its designee may make an administrative permit amendment for those changes at a site that qualify as an amendment under sec.122.211 of this title (relating to Administrative Permit Amendments). (b) An administrative permit amendment shall be made by the Board or designee consistent with the following conditions: (1) the owner or operator of the site has submitted an application for the amendment which includes a description of the proposed change and also includes a statement that the proposed change meets the criteria for the use of the permit amendment procedures; (2) the owner or operator has obtained or qualified for any preconstruction authorization required by the Texas Air Control Board (TACB) Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification). (c) The TACB shall take no more than 60 days from receipt of an application for an administrative permit amendment to take final action on such application. (d) The owner or operator may implement the changes addressed in the application for an administrative permit amendment immediately upon receipt by the TACB of the application, if the owner or operator has obtained or qualified for any preconstruction authorization required by TACB Chapter 116 of this title. If no preconstruction authorization is required for the change, then the change may be implemented upon filing the application for an administrative permit amendment. (e) The site shall be subject to enforcement action if the change at the site is later determined not to qualify for an administrative permit amendment. (f) The TACB shall submit a copy of the revised permit to the U.S. Environmental Protection Agency. sec.122.215. Permit Additions. (a) A change at a site may qualify as a permit addition if the change satisfies all of the requirements of either subsection (b) or subsection (c) of this section. (b) The change at the site: (1) is not addressed or prohibited by the federal operating permit; (2) does not violate any existing term or condition of the federal operating permit; (3) does not violate any applicable requirement; and (4) is not a Title I modification, or otherwise required by the Texas Air Control Board (TACB) to be processed as a significant modification. (c) The change at the site: (1) does not violate any applicable requirement; (2) does not involve removal of monitoring, recordkeeping, or reporting terms and conditions, or a substitution in those terms and conditions promulgated pursuant to federal New Source Performance Standards or National Emissions Standards for Hazardous Air Pollutants; (3) does not require or change a determination of an emission limitation under the Act, sec.112(g) or sec.112(j) of Title I, or a source-specific determination for temporary sources of ambient impacts, visibility analysis, or increment analysis; and (4) does not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement, and that the site has assumed to avoid an applicable requirement to which the site would otherwise be subject. Such terms and conditions include: (A) a federally enforceable emissions cap assumed to avoid classification as a modification under any provision of Title I; and (B) an alternative emissions limit approved pursuant to regulations promulgated under the Act, sec.112(i)(5); and (5) is not a Title I modification, or otherwise required by the TACB to be processed as a significant modification. sec.122.216. Application for Permit Addition. (a) The permittee shall submit to the Texas Air Control Board (TACB) an application requesting a permit addition that meets the requirements of sec.122.215 of this title (relating to Permit Additions) and shall include the following: (1) a description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs; (2) the permittee's suggested draft permit conditions; and (3) certification by a responsible official, consistent with sec.122.165 of this title (relating to Certification by a Responsible Official), that the proposed change meets the criteria for the use of the permit addition procedures and a request that such procedures be used. (b) Applications for changes that qualify under this section shall be submitted to the TACB by the permittee no later than 90 days after the owner or operator has obtained or qualified for any preconstruction authorization required by Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification). sec.122.217. Permit Addition Procedures. (a) The Texas Air Control Board (TACB) shall notify the U.S. Environmental Protection Agency (EPA) and any affected state(s) of the requested permit addition. (b) Within 90 days of the TACB's receipt of a complete application under sec.122.216 of this title (relating to Application for Permit Addition), or subsequent to the permittee obtaining or qualifying for any preconstruction authorization required by Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification), whichever is later, the TACB shall: (1) determine that the requested change does not meet the permit addition criteria in sec.122.215 of this title (relating to Permit Additions) and whether the requested change should be reviewed under the significant permit modification procedures; or (2) revise the draft permit addition and transmit to EPA the proposed permit addition as required by Subchapter D of this chapter (relating to Affected State Review, U. S. Environmental Protection Agency Review, and Citizen Petition). (c) The Board or its designee may issue a permit addition for those changes at a site that qualify as an addition under sec.122.215 of this title. The owner or operator may make the requested change prior to approval of the permit addition provided that the owner or operator has obtained or qualified for any preconstruction authorization required by Chapter 116 of this title (relating to Permits) for the requested changes. (d) The permit addition shall not become final until after EPA's 45-day review period at renewal of the permit or until EPA has notified the TACB that EPA will not object to issuance of the permit addition, whichever is first. (e) Until final, the permit addition shall be a state only requirement of the federal operating permit. (f) Prior to the issuance or denial of a permit addition by the board or its designee, the owner or operator of the relevant emission units affected by the change shall comply with the proposed permit terms and conditions. During this time period, the owner or operator need not comply with the existing permit terms and conditions that the application seeks to modify. However, if the owner or operator of the relevant emission units affected by the change fails to comply with the proposed permit terms and conditions during this time period, the existing permit terms and conditions that the application seeks to modify shall be the enforceable terms and conditions. sec.122.219. Significant Permit Modifications. (a) A change at a site may qualify as a significant permit modification only if the change satisfies one or more of the following: (1) is a Title I modification; (2) does not qualify as a permit addition, as an administrative amendment, or for operational flexibility; (3) is a removal of existing monitoring terms and conditions, or a substitution in those terms and conditions promulgated pursuant to federal New Source Performance Standards (NSPS), or National Emissions Standards for Hazardous Air Pollutants (NESHAP); or (4) is a removal of recordkeeping or reporting terms and conditions, or a substitution in a recordkeeping or reporting requirement promulgated pursuant to NSPS or NESHAP. (b) Applications for changes that qualify under this section shall be submitted by the permittee no later than 12 months after the owner or operator has obtained or qualified for any preconstruction authorization required by Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification) for the change. (c) For changes that qualify as Title I modifications and where the existing federal operating permit prohibits such change, the permittee shall obtain the significant permit modification before commencing any operation. (d) Except as required in subsection (c) of this section, those changes that qualify as significant permit modifications may commence operation of any corresponding change immediately after obtaining or qualifying for any preconstruction authorization required under Chapter 116 of this title. (e) Except as provided in subsection (c) of this section, prior to the issuance or denial of a significant permit modification by the Board or its designee, the owner or operator of the relevant emission units affected by the change shall comply with the proposed permit terms and conditions. During this time period, the owner or operator need not comply with the existing permit terms and conditions that the application seeks to modify. However, if the owner or operator of the relevant emission units affected by the change fails to comply with the proposed permit terms and conditions during this time period, the existing permit terms and conditions that the application seeks to modify shall be the enforceable terms and conditions. sec.122.220. Significant Permit Modification Application and Procedures. The Board or its designee may issue a significant permit modification only for those changes at a site that qualify as a significant modification and meet the following conditions: (1) the Texas Air Control Board (TACB) has received a complete application; (2) the applicant has complied with the requirements for public participation under Subchapter B of this chapter (relating to Permit Requirements); (3) the requirements for notifying and responding to affected States under Subchapter D of this chapter (relating to Affected State Review, U.S. Environmental Protection Agency Review, and Citizen Petition); (4) the conditions of the permit provide for compliance with all applicable requirements and the requirements of this chapter; and (5) the U.S. Environmental Protection Agency has received a copy of the proposed permit, any notices required, and has not objected to issuance of the significant permit modification within the time period specified in Subchapter D of this chapter. sec.122.221. Operational Flexibility. (a) A permittee may make changes within a permitted site without applying for or obtaining a permit revision provided that the following conditions are met: (1) the changes are not Title I modifications; (2) the changes do not exceed the emissions limitation under the permit; and (3) the owner or operator has obtained or qualified for any preconstruction authorization required by the Texas Air Control Board (TACB) Chapter 116 of this title (relating to Control of Air Pollution by Permits For New Construction or Modification). (b) For changes to the federal operating permit which qualify under this section, the permittee shall provide the U.S. Environmental Protection Agency (EPA) and the TACB with written notification. The written notification shall be received by the TACB at least 30 days in advance of operation of the proposed changes unless the Board or its designee approves a shorter period, but in no case shall that period be less than seven days prior to the proposed change. (c) Written notification shall include the following information: (1) a description of the change, the date on which the operation resulting from the change is proposed to occur, the emissions resulting from the change, any new applicable requirements that will apply if the change occurs, and any permit term or condition that is no longer applicable as a result of the change; and (2) certification by a responsible official, consistent with sec.122.165 of this title (relating to Certification by a Responsible Official), that the proposed change meets the criteria for the use of operational flexibility under this section and a request that such procedures be used. (d) The permittee, TACB, and EPA shall attach each such notice to their copy of the relevant permit. (e) Changes that qualify under this section are not subject to the procedural requirements for permit revisions. (f) Upon satisfying the requirements of this section, the permittee may begin operations which result from the proposed change at the expiration of the time period provided for in subsection (b) of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327956 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Permit Reopenings 31 TAC sec.122.231, sec.122.233 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.231. Permit Reopenings. (a) A permit shall be opened and revised for cause only under one or more of the following circumstances: (1) additional applicable requirements become applicable to a permitted site which, at the date of promulgation of the additional requirement, has three or more years remaining prior to expiration, except that no such reopening is required if the new requirement is incorporated in any federal operating permit which addresses the emission unit(s) subject to the new requirement; (2) additional requirements become applicable to an affected unit under the acid rain program; (3) the federal operating permit contains a material mistake or if inaccurate statements were made in establishing the emissions standards or other terms and conditions of the federal operating permit; or (4) a determination is made by the Texas Air Control Board that the permit shall be revised or revoked to assure compliance with the applicable requirements. (b) The Board or its designee shall terminate, revise, or revoke and reissue a federal operating permit for cause. (c) After receipt of a petition for reopening for cause, as defined in this section, the board or its designee may terminate, revise, or revoke and reissue the permit. (d) No later than 180 days of receipt of written notification by the U.S. Environmental Protection Agency (EPA) that cause, as defined in this section, exists to terminate, revise, or revoke and reissue a permit pursuant to this section, the Board or its designee shall terminate, revise, or revoke and reissue the permit in accordance with EPA's direction. (e) No reopening is required under subsection (a) of this section, if the effective date of the requirement is later than the permit expiration date. sec.122.233. Permit Reopening Procedures. (a) Reopenings and revisions under sec.122.231 of this title (relating to Permit Reopenings) shall comply with the requirements of this chapter for permit issuance, including such requirements for application, public participation, review by affected states, and review by the U.S. Environmental Protection Agency. These procedures shall affect only those parts of the permit for which cause, as defined in sec.122.231 of this title, to reopen exists. (b) For reopenings and revisions under sec.122.231 of this title, the Texas Air Control Board (TACB) shall provide 30 days' notice of intent to reopen, unless the board or its designee allows for a shorter notice due to an emergency. (c) Reopenings and revisions under sec.122.231(a)(1) and (2) of this title shall be completed by the TACB not later than 18 months after promulgation of the applicable requirement. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327958 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Permit Renewals 31 TAC sec.122.241, sec.122.243 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistnent with the policy and purposes of the TCAA. sec.122.241. Permit Renewals. (a) Each federal operating permit issued or renewed by the Texas Air Control Board (TACB) shall be subject to review at least every five years after the date of issuance of the proposed permit to determine whether the authority to operate should be renewed. (b) The TACB shall provide written notice to the permittee that the permit is scheduled for review. Such notice will be provided by certified or registered U.S. mail no less than 12 months prior to the expiration of the permit. The notice shall specify the procedure for filing an application. In order to qualify as a timely application, the application shall be filed by the permittee with the TACB at least six months, but no earlier than 18 months, prior to the date of permit expiration. The application shield is not available to sites that do not submit a timely and complete application. Failure to receive notice as described in this subsection does not affect the applicability of the application shield or the lack thereof, as determined pursuant to Subchapter B of this chapter (relating to Permit Requirements). (c) A federal operating permit may be renewed by the Board or its designee only if all of the following conditions have been met: (1) the TACB has received a complete application; (2) the applicant has complied with the requirements for public participation under Subchapter B of this chapter; (3) the requirements for notifying and responding to affected states under Subchapter D of this chapter (relating to Affected State Review, U.S. Environmental Protection Agency Review, and Citizen Petition); (4) the conditions of the permit provide for compliance with all applicable requirements and the requirements of this chapter; and (5) The U.S. Environmental Protection Agency has received a copy of the proposed permit, any notices required, and has not objected to issuance of the proposed federal operating permit within the time period specified in Subchapter D of this chapter. (d) In determining whether and under what conditions a permit should be renewed, the Board shall consider: (1) all applicable requirements as defined in Subchapter A of this chapter (relating to Definitions); and (2) the site's compliance status with this chapter and the terms and conditions of the existing permit. (e) The Board may not impose requirements less stringent than those of the existing permit unless the Board determines that the proposed changes will meet the requirements of this chapter. (f) At the time of renewal, the Board or its designee may combine into a single permit, any federal operating permits, including general permits, at the same site which have satisfied the requirements of this section. sec.122.243. Permit Expiration. Permit expiration terminates the site's right to operate unless a timely and complete renewal application has been submitted consistent with sec.122.133 of this title (relating to Timely Application) and sec.122.134 of this title (relating to Complete Application). Subsequent to a timely and complete application submittal, the site may continue to operate under the terms and conditions of the permit until the Board or its designee has taken final action on the permit renewal application. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327957 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Subchapter D. Affected State Review U.S. Environmental Protection Agency Review, and Citizen Petition 31 TAC sec.sec.122.310-122.312, 122.314, 122.316 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.310. Transmission of Information to the U.S. Environmental Protection Agency (EPA). The Texas Air Control Board shall provide the EPA with a copy of each proposed permit and each final federal operating permit. sec.122.311. Affected State Review. (a) The Texas Air Control Board (TACB) shall provide notice of the draft permit for permit issuance, renewal, permit revision, and permit reopening to any affected state on or before the time notice is provided to the public under Subchapter B of this chapter (relating to Permit Requirements). (b) Affected state(s) shall have 30 days from date of notification of the draft permit to comment on the draft permit. (c) The TACB shall notify the U.S. Environmental Protection Agency and any affected state, in writing, of its refusal to incorporate any or all recommendations into the proposed permit that the affected state submitted during the affected state review period. The notice shall include the TACB's reasons for not accepting any such recommendations that are not based on applicable requirements. sec.122.312. U.S. Environmental Protection Agency (EPA) Review. (a) After the end of the public comment period provided for by sec.122. 155 of this title (relating to Public Comment Period), the Board or its designee shall submit the proposed permit to the EPA. Upon receipt of a proposed permit, the EPA shall have 45 days to object, in writing, to the issuance of the proposed permit by the Board or its designee pursuant to Subchapter B of this chapter (relating to Permit Requirements) if EPA determines the proposed permit is not in compliance with applicable requirements of the federal operating permit program or the rules promulgated thereunder. If EPA submits such an objection, the proposed permit shall not be issued by the Board or its designee. (b) If the Board or its designee fails, within 90 days after the date of an objection under subsection (a) of this section, to revise the proposed permit and submit a revised permit in response to the objection, the EPA will issue or deny the permit in accordance with the requirements of the federal program promulgated under Title V of the Act. sec.>>122.314. Public Petitions to U.S. Environmental Protection Agency (EPA). (a) If the EPA does not file an objection with the Board or its designee, pursuant to Subchapter D of this chapter (relating to Affected State Review, U.S. Environmental Protection Agency Review and Citizen Petition) , any person, including the applicant, affected by a decision of the Board or its designee under this chapter may petition the EPA to make such an objection within 60 days of the expiration of the EPA's 45-day review period. (b) A copy of the petition shall be provided to the Texas Air Control Board (TACB) and to the applicant by the petitioner. (c) The petition for review to EPA under this section does not limit the effectiveness of a permit issued by the board or its designee or the finality of the board's or its designee's action for purposes of an appeal under the Texas Health and Safety Code, sec.382.032. (d) Petitions shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided for in Subchapter B of this chapter (relating to Permit Requirements), unless the petitioner demonstrates in the petition to the EPA that it was impracticable to raise such objections within the public comment period, or that the grounds for such objection arose after the public comment period. The petition shall identify all objections. (e) Prior to issuance of the permit, if the EPA objects to the permit as a result of a petition filed under this section, the Board or its designee shall not issue the permit until EPA's objection has been resolved. (f) If the Board or its designee has issued a permit prior to receipt of an EPA objection based on a citizen petition, the permit remains effective and the board or its designee shall have 90 days from the receipt of the EPA's objection to resolve the objection and to terminate, revise, or revoke and reissue the permit. In the event additional information is needed from the permittee, the TACB may request from EPA a 90-day extension to resolve the EPA objection. If the TACB fails to resolve the objection, EPA will revise, terminate, or revoke such permit, and the Board or its designee may thereafter issue only a revised permit that satisfies EPA's objection. In any case, the owner or operator of the site will not be in violation of the requirement to have submitted a timely and complete application. sec.122.316. Hearing and Comment Procedures for Operating Permits. Any hearing regarding a federal operating permit will be conducted according to the following procedures and not under the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a). Such hearing shall be convened pursuant to a request in accordance with Subchapter B of this chapter (relating to Permit Requirements). (1) Requests for notice and comment hearing. (A) Any person who may be affected by emissions from a site regulated under this chapter may request the Board or its designee to hold a hearing on that owner or operator's application for a federal operating permit or renewal application or the reopening of a federal operating permit. (B) After reviewing a request for a hearing, the Board or its designee shall decide whether to call the hearing and shall provide written notice to each person who requested a hearing and to the applicant within a reasonable time after receipt of the hearing request. The Board or its designee is not required to hold a hearing if the basis of the request by a person who may be affected is determined to be unreasonable. (2) Procedures for notice and comment hearing. (A) The Texas Air Control Board (TACB) shall provide 30 day's advance notice of any hearing regarding a federal operating permit. In addition to publication in the Texas Register, notice will be sent to all persons who have made timely written requests for a hearing and to the applicant. The notice shall include: (i) a statement of the time, place, and nature of the hearing; (ii) a reference to the particular sections of the statutes and regulations involved; and (iii) a brief description of the purpose of the hearing. (B) Whenever a hearing will be held, the Board or its designee shall designate a presiding officer for the hearing who shall be responsible for its scheduling and orderly conduct. (C) Any person, including the applicant, may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The period for submitting written comments shall be automatically extended to the close of any public hearing. The hearing officer may also extend the period for submitting written comments by so stating at the hearing. (D) A tape recording or written transcript of the hearing shall be made available to the public. (E) Any person, including the applicant, who believes that the conditions of the draft permit do not provide for compliance with all applicable requirements as defined in Subchapter A of this chapter (relating to Definitions) or that any condition of a draft permit is inappropriate or that the Board or its designee's preliminary decision to issue or deny the draft permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting his or her position by the close of the public comment period, including any public hearing. Any supporting materials shall be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of state or federal statutes and regulations, U.S. Environmental Protection Agency documents of general applicability, or other generally available reference materials. (F) All comments received either during the public comment period or during any hearing shall be considered by and responded to by the Board or its designee. The response to comments shall be available to the public and shall be sent to the applicant and any person participating in the public hearing. This response shall: (i) specify which provisions, if any, of the draft permit have been changed in the proposed permit and the reasons for the change; and (ii) identify the party making the comments, and briefly describe and respond to all comments on the draft permit raised during the public comment period or during any hearing. (G) The TACB shall keep a record of all comments and also of the issues raised in the public hearing. This record shall be available to the public. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327959 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Subchapter E. Acid Rain General Acid Rain Permit Requirements 31 TAC sec.122.410, sec.122.411 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.411. Operating Permit Interface. (a) Unless specifically noted in this subchapter, all affected sources shall comply with the requirements of this chapter for permit issuance, revision, reopening, and renewal; including any such requirements for application, public participation, review by affected states, and review by the U.S. Environmental Protection Agency. (b) The Texas Air Control Board (TACB) hereby adopts and incorporates by reference the provisions of 40 Code of Federal Regulations (CFR) 72 as in effect on the date of this action for purposes of implementing an acid rain program that meets the requirements of Title IV of the Act. If the provisions or requirements of 40 CFR 72 conflict with or are not included in this chapter, the 40 CFR 72 provisions and requirements shall apply and take precedence. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327960 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Acid Rain Application 31 TAC sec.sec.122.420-122.422, 122.425, 122.427 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.420. Enforceability of Acid Rain Permit Application. A complete acid rain permit application shall be binding on the owners and operators and the designated representative of the affected source and all affected units at the affected source governed by the acid rain permit application. The application shall be enforceable as an acid rain permit from the date of submission of the permit application until the issuance or denial of the acid rain permit. sec.122.421. Timely Application. (a) Applications for initial Phase II acid rain permits shall be submitted to the Texas Air Control Board no later than six months after the effective date of the interim federal operating permit program, but no later than by January 1, 1996, for sulfur dioxide, and by January 1, 1998, for nitrogen oxides pursuant to the Act, sec.407. (b) The designated representative of affected units that become subject to the acid rain rules after these filing dates shall file applications no later than 12 months after the affected units become subject to those rules, unless otherwise specified in the acid rain rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327961 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Acid Rain Permit Issurance, Revocations, and Reopenings 31 TAC sec.sec.122.430, 122.432, 122.434, 122.435, 122.437, 122. 438 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.122.430. Acid Rain Permit Conditions. (a) Emissions from the affected units which are subject to the requirements of the acid rain rules shall not exceed any allowances that the affected unit lawfully holds under the acid rain provisions of the Act or the acid rain rules. (1) No revision to the federal operating permit shall be required for increases in emissions that are authorized by allowances acquired pursuant to the acid rain program, provided that such increases do not require a permit revision under any other applicable requirement. (2) There is no limit placed on the number of allowances held by the affected unit. The affected unit may not, however, use allowances as a defense to noncompliance with any other applicable requirement. (3) Any such allowance shall be accounted for according to the procedures established in the acid rain rules. sec.122.432. Acid Rain Permit Issuance. (a) In addition to the permit issuance requirements under Subchapter C of this chapter (relating to Permit Issuances, Revisions, Reopenings, and Renewals), for acid rain permits, the applicant shall submit to the U.S. Environmental Protection Agency a certificate of representation for the designated representative of the affected source in accordance with the acid rain rules. (b) Each acid rain permit shall have a fixed term of five years commencing on its effective date. Each acid rain permit issued on or before December 31, 1997 in accordance with subsection (c) of this section shall take effect by the later of January 1, 2000, or, where the permit governs a new unit or upgraded unit, the deadline for monitor certification under 40 Code of Federal Regulations 75. (c) The Board or its designee shall issue or deny an acid rain permit on or before December 31, 1997, (if the operating permit program has received full or interim approval by July 1, 1996) to each affected source provided that the designated representative of the affected source submitted a timely and complete acid rain permit application and meets the requirements of the acid rain rules and of this chapter. Otherwise, the Board or its designee shall issue or deny an acid rain permit within 18 months of receiving a complete acid rain permit application. sec.122.434. Acid Rain Permit Shield. Each affected unit operated in accordance with the acid rain permit that governs the affected unit, and that was issued in compliance with the acid rain provisions of the Act and the acid rain rules shall be deemed to be operating in compliance with the acid rain requirements, except as provided in 40 Code of Federal Regulations 72.9(g)(6). sec.122.435. Acid Rain Permit Revisions. (a) The provisions of this subchapter supplement Subchapter C of this chapter (relating to Permit Issuances, Revisions, Reopenings, and Renewals). Where the provisions of this subchapter conflict with Subchapter C of this chapter, the provisions of 40 Code of Federal Regulations 72 shall supersede the operating permit revision procedures with regard to revision of any acid rain permit provision. (b) No acid rain permit revision shall affect the term of the acid rain permit to be revised. No acid rain permit revision shall excuse any violation of an acid rain requirement that occurred prior to the effective date of the revision. (c) The existing terms and conditions of the acid rain permit shall apply while any acid rain permit revision is pending. (d) The standard requirements contained in the acid rain rules shall not be modified or voided by an acid rain permit revision. (e) Changes that are prohibited by the acid rain permit or changes which are not addressed by the acid rain permit shall not be made by the permittee without first revising the acid rain permit, if such changes are subject to any requirements under the acid rain rules. sec.122.437. Acid Rain Permit Revision Procedures. (a) Permit modifications. The following acid rain permit revisions are permit modifications and shall follow the permit issuance procedures of this chapter and Subpart G of 40 Code of Federal Regulations (CFR) 72: (1) relaxation of an excess emission offset requirement after approval of the offset plan by the U.S. Environmental Protection Agency (EPA); (2) incorporation of a final nitrogen oxides alternative emission limitation following a demonstration period; and (3) determinations concerning failed repowering projects. (b) Fast track modifications. Notwithstanding subsection (a) of this section, at the option of the designated representative, permit revisions which meet the criteria in 40 CFR 72 for fast track modifications may follow the procedural requirements for fast track modifications listed in 40 CFR 72. (c) Administrative permit amendments. The following acid rain permit revisions are administrative permit amendments and shall follow the administrative permit amendment procedures of this regulation, except that the Texas Air Control Board (TACB) shall submit the revised portion of the permit to the EPA within ten working days after the date of final action on the request for an administrative amendment: (1) activation of a compliance option conditionally approved by the TACB; provided that all requirements for activation under the acid rain rules are met; (2) changes in the designated representative or alternative designated representative; provided that a new certificate of representation is submitted; (3) changes in the owners or operators; provided that a new certificate of representation is submitted within 30 days of the change; (4) termination of a compliance option in the permit; provided that all requirements for termination under the acid rain rules shall be met and this procedure shall not be used to terminate a repowering plan after December 31, 1999; (5) changes in the date, specified in a new unit's acid rain permit, of commencement of operation or the deadline for monitor certification, provided that they are in accordance with the acid rain rules; (6) the addition of or change in a nitrogen oxides alternative emissions limitation demonstration period; provided that the requirements of the Act, sec.407 are met; and (7) incorporation of changes that the EPA has determined to be similar to those in paragraphs (1)-(6) of this subsection. (d) The following permit revisions shall be deemed to amend automatically and become a part of the affected unit's acid rain permit by operation of law without any further review: (1) upon recordation by the EPA, all allowance allocations to, transfers to, and deductions from an affected unit's Allowance Tracking System account; and (2) incorporation of an offset plan that has been approved by the EPA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327962 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 Acid Rain Appeals 31 TAC sec.122.440 The new rules are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistnent with the policy and purposes of the TCAA. sec.122.440. Acid Rain Appeals Procedure. (a) Appeals of the acid rain portion of an operating permit issued by the Texas Air Control Board (TACB) or its designee that do not challenge or involve decisions or actions of the U.S. Environmental Protection Agency (EPA) under the acid rain provisions of the Act and the acid rain rules shall be conducted according to procedures of the Texas Health and Safety Code, sec.382. 032. (b) Appeals of the acid rain portion of such a permit that challenge or involve such decisions or actions of the EPA shall follow the procedures specified 40 Code of Federal Regulations (CFR) 78 and the Act, sec.307. Such decisions or actions include, but are not limited to, allowance allocations, determinations concerning alternative monitoring systems, and determinations of whether a technology is a qualifying repowering technology. (c) The TACB shall serve written notice on the EPA of any judicial appeal concerning an acid rain provision of any operating permit or denial of an acid rain portion of any operating permit within 30 days of the filing of the appeal. (d) The Administrator may intervene as a matter of right in any permit appeal involving an acid rain permit provision or denial of an acid rain permit. (e) The TACB shall serve written notice on the EPA of any determination or order in a state administrative or judicial proceeding that interprets, modifies, voids, or otherwise relates to any portion of an acid rain permit. Following any such determination or order, the Administrator will have an opportunity to review and veto the acid rain permit or revoke the permit for cause. (f) A failure of the board or its designee to issue an acid rain permit in accordance with the acid rain rules shall be grounds for filing an appeal. (g) No appeal concerning an acid rain requirement shall result in a stay of any provision of the acid rain permit for which a stay is barred under 40 CFR 78. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 30, 1993. TRD-9327963 Cyril Durrenberger Acting Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 20, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 908-1451 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XIX. Texas Department of Protective and Regulatory Services (Editor's Note: Texas Civil Statutes, Article 4413(502) historical note (Vernon Supplement 1993) states that all functions, powers, duties, funds, and obligations of the Texas Department of Health relating to institutional component of licensing and certification activity other than long-term care facilities be transferred to the Texas Department of Protective and Regulatory Services effective September 1, 1993. The Texas Register is administratively transferring and duplicating the following rules listed in the table below from Title 25, Part I. Texas Department of Health to the Title 40. Part XIX. Texas Department of Protective and Regulatory Services. The table lists the old section number and the new section number that correspond to them.) Chapter 3. Income Assistance Services Subchapter L. Work Registration 40 TAC sec.sec.3.1201, 3.1202, 3.1203 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.3. 1201 and 3.1202 and new sec.3.1203. The amendment to sec.3.1202 is adopted with changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4743). The amendment to sec.3.1201 and new sec.3.1203 are adopted without changes to the proposed text, and will not be republished. Also in this issue of the Texas Register , the department is adopting an amendment to Chapter 10, Family Self-Support Services, regarding this project. The justification for the amendments and new section is to provide the policy basis for implementation of employment services under the McLennan County Food Stamp Employment and Training (E&T) Demonstration Project. The amendments and new section will function by ensuring that food stamp recipients will have the opportunity to receive employment services better targeted to their needs thereby improving their ability to achieve long-term self-sufficiency. No comments were received regarding the adoption of the amendments and new section. DHS however, is adopting sec.3.1202(c) with a minor editorial change that replaces the word "to" with the word "with" in the program name for Aid to Families with Dependent Children- Unemployed Parent. The amendments and new section are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. sec.3.1202. Failure to Comply. (a) In all E&T counties except McLennan County, the Texas Department of Human Services (DHS) disqualifies households for failure to comply with work registration according to requirements stipulated in 7 Code of Federal Regulations (CFR) sec.273.7(g). (b) In McLennan County DHS penalizes food stamp household members who fail to comply with food stamp employment services requirements according to the Job Opportunities and Basic Skills (JOBS) procedures specified in sec.3. 1104 of this title (relating to Failure to Comply). The penalty for a second parent specified in 45 CFR sec.250.34(c)(2) applies to the food stamp case only as specified in subsection (c) of this section. (c) Pursuant to 7 CFR sec.273.7(g)(2), for household members in McLennan County who are penalized due to failure to comply with employment services requirements under Title IV of the Social Security Act, DHS will simultaneously apply a noncompliance penalty, described in subsection (b) of this section, to the food stamp case. This includes the second parent on an Aid to Families with Dependent Children-Unemployed Parent (AFDC-UP) case who is disqualified as specified in 45 CFR sec.250.34(c)(g)(2). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328027 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 450-3765 Employment Services 40 TAC sec.10.2301 The Texas Department of Human Services (DHS) adopts an amendment to sec.10. 2301. The amendment is adopted without changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 6355). Also in this issue of the Texas Register, the department is adopting amendments and a new section to Chapter 3, Income Assistance Services, regarding this project. The justification for the amendment is to provide the policy basis for implementation of employment services under the McLennan County Food Stamp Employment and Training (E&T) Demonstration Project. The amendment will function by allowing food stamp recipients the opportunity to receive employment services better targeted to their needs, thereby improving their ability to achieve long-term self-sufficiency. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328029 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1993 Proposal publication date: July 20, 1993 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled In-Home and Family Support Program 40 TAC sec.48.2703 The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 2703, without changes to the proposed text as published in the July 23, 1993, issue of the Texas Register (18 TexReg 4864). The justification for the amendment is to revise the copayment schedule based on updated state median income figures compiled by the U.S. Department of Health and Human Services. The amendment will function by providing public access to the new copayment schedule. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public assistance and support services for persons with disabilities programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 31, 1993. TRD-9328028 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1993 Proposal publication date: July 23, 1993 For further information, please call: (512) 450-3765