Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 122.
FEDERAL OPERATING PERMITS
The Texas Natural Resource Conservation Commission (TNRCC or commission)
adopts the
amendments
to §122.10, General
Definitions; §122.120, Applicability; §122.130, Initial Application
Due Dates; §122.131, Phased Permit Detail; §122.132, Application
and Required Information for Initial Permit Issuance, Reopening, Renewal,
or General Operating Permits; §122.134, Complete Application; §122.136,
Application Deficiencies; §122.139, Application Review Schedule; §122.140,
Representations in Application; §122.142, Permit Content Requirements; §122.143,
General Terms and Conditions; §122.145, Reporting Terms and Conditions; §122.146,
Compliance Certification Terms and Conditions; §122.210, General Requirements
for Revisions; §122.211, Administrative Permit Revisions; §122.212,
Applications for Administrative Permit Revisions; §122.213, Procedures
for Administrative Permit Revisions; §122.216, Applications for Minor
Permit Revisions; §122.217, Procedures for Minor Permit Revisions; §122.221,
Procedures for Significant Permit Revisions; §122.231, Permit Reopenings; §122.320,
Public Notice; §122.330, Affected State Review; §122.340, Notice
and Comment Hearing; §122.350, EPA Review; §122.360, Public Petition; §122.608,
Procedures for Incorporating Periodic Monitoring Requirements; §122.706,
Applications for Compliance Assurance Monitoring; and §122.708, Procedures
for Incorporating Compliance Assurance Monitoring Requirements. The commission
Sections 122.10, 122.120, 122.132, 122.136, 122.140, 122.142, 122.143,
122.145, 122.146, 122.210, 122.211, 122.213, 122.215 - 122.219, 122.222, 122.231,
122.350, and 122.608 are adopted
with changes
to the proposed text as published in the January 26, 2001 issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
On May 22, 2000, the EPA set a deadline that any program revisions necessary
for obtaining full federal operating permit (FOP) program approval must be
submitted to the EPA no later than June 1, 2001, and granted a third extension,
extending up to December 1, 2001, for all interim approvals of operating permit
programs (65 Federal Register (FR) 32035). The State of Texas FOP program
is an interim-approved program subject to the EPA's notice. The commission
adopts this rulemaking to resolve inconsistencies which exist between Chapter
122, Federal Operating Permits, and Title 40 Code of Federal Regulations (CFR)
Part 70 (Part 70), State Operating Permit Programs, so that the EPA may grant
full program approval to the commission's operating permit program. The commission
plans to submit program revisions to the EPA on or before June 1, 2001.
The 1990 Federal Clean Air Act Amendments (FCAA), Title V, Permits, directed
the EPA to establish the minimum requirements for a state operating permit
program. On July 21, 1992, the EPA promulgated Part 70 to comply with this
directive. States were required to submit operating permit programs meeting
the requirements of Part 70 to the EPA. On August 23, 1993, the commission
adopted Chapter 122 to implement the FOP program and submitted its proposed
operating permit program (which included Chapter 122) to the EPA on September
17, 1993, and in two supplemental submittals on October 28, 1993, and November
12, 1993. On June 7, 1995, the EPA published notice of its proposal to grant
source category-limited interim approval to the State of Texas (60 FR 30037).
On June 25, 1996, the EPA promulgated interim approval of the State operating
permit program for a period of two years, beginning on July 25, 1996 (61 FR
32693). Interim program approval provided the commission with the authority
to implement the operating permit program in Texas for two years without the
imposition of an EPA-promulgated, administered, and enforced program under
40 CFR Part 71 (Part 71), Federal Operating Permit Programs. To obtain full
program approval, the commission must submit a program to the EPA that corrects
inconsistencies between the interim program and Part 70.
Title V does not allow for extensions of interim programs; however, the
EPA has extended interim programs three times. These extensions were intended
to allow states to simultaneously develop a full program submittal that would
correct any interim inconsistencies and meet the requirements of a revised
Part 70. On August 29, 1997, the EPA automatically extended all interim approvals
of operating permit programs until October 1, 1998 (62 FR 45732). On July
27, 1998, the EPA published a direct final rule that extended interim approval
expiration dates until June 1, 2000. On February 14, 2000, the EPA published
another direct final interim program extension which would have allowed all
interim programs to expire on June 1, 2002 (65 FR 7290). However, on March
29, 2000, the EPA published a withdrawal of the February 14, 2000 extension
based on an adverse comment that the extension was contrary to the express
provisions of the FCAA (65 FR 16523). Subsequently, on May 22, 2000, the EPA
published notice that all states with interim approval would have until June
1, 2001 to submit a program for full program approval and that the EPA would
take action on those submittals by December 1, 2001 (65 FR 32035). If the
EPA is unable to approve a state's program by December 1, 2001, Part 71 is
automatically effective in that state, and Part 71 sources that have not received
a FOP would have up to one-year to submit permit applications under Part 71.
The EPA has proposed revisions to Part 70, some of which have not been
promulgated. However, some provisions of Chapter 122 were amended in October
1997 to take advantage of flexibility offered by proposed revisions to Part
70. The October 1997 revisions to Chapter 122 were submitted to the EPA for
approval in June 1998. The EPA has not yet acted on the June 1998 submittal
and the commission understands that the EPA will not act separately on that
submittal from this adoption.
In the June 25, 1996 notice, the EPA indicated that in an action on a state's
submittal for full approval, it will use the criteria in the final Part 70
regulation (61 FR 32693). The existing July 21, 1992 regulation, as amended,
is the final Part 70 regulation at this time. The commission adopts this rulemaking
to make Chapter 122 consistent with this version of Part 70 and to address
the inconsistencies identified in the June 25, 1996 notice.
RESOLUTION OF INCONSISTENCIES BETWEEN CHAPTER 122 AND PART 70
In the June 7, 1995 notice, the EPA identified various inconsistencies
between Chapter 122 and Part 70 (60 FR 30037). The EPA's June 25, 1996 notice
states that the inconsistencies specifically identified in the June 7, 1995
notice must be remedied before the EPA grants full approval to Texas' operating
permit program (61 FR 32698). Also, the EPA provided the commission a draft
document which summarizes the inconsistencies identified in the 1995 and 1996
notices. That document is available from the commission upon request.
On January 26, 2001, the commission's proposal to address deficiencies
in the FOP program identified by the EPA was published in the
Texas Register
. The proposal listed the specific deficiencies and the
commission's proposed solution. That list of deficiencies will not be republished
but can be found in the January 26, 2001 issue of the
Texas Register
(26 TexReg 890). The commission incorporates this list
and the discussion of the deficiencies by reference. A copy of the proposal
will be included in the FOP program submittal package that will be sent to
the EPA. Changes in the proposed rule language made for this adoption will
be identified in the SECTION BY SECTION DISCUSSION.
SECTION BY SECTION DISCUSSION
Subchapter A - Definitions
The commission adopts amendments to §122.10. The reference to the
title of Chapter 101 is corrected. The commission amends §122.10(1),
the definition of air pollutant, to respond to the inconsistency with Part
70 identified by the EPA in the June 7, 1995 notice. The commission amends §122.10(1)(F)
to specify that any pollutant subject to a requirement established under FCAA, §112(r)
is an air pollutant under Chapter 122. The existing regulation does not identify
these pollutants as "air pollutants." The commission also amends §122.10(1)(F)(i)
and (ii). Section 122.10(1)(F)(i) specifies that the definition of air pollutant
includes any pollutant subject to requirements under FCAA, §112(j) and
also specifies the date pollutants under FCAA, §112(j) shall be considered
to be regulated if the EPA fails to promulgate a standard by the date established
pursuant to FCAA, §112(e). Section 122.10(1)(F)(ii) specifies that the
term air pollutant also includes any pollutant for which the requirements
of FCAA, §112(g)(2) have been met, but only with respect to the individual
site subject to the FCAA, §112(g)(2) requirement. The amendments are
consistent with the definition of regulated air pollutant in 40 CFR §70.2.
The commission amends §122.10(2), the definition of applicable requirement,
to include Chapter 101, Subchapter H, Emissions Banking and Trading. Because
Subchapter H provides an alternative means of compliance with applicable requirements,
the commission believes Subchapter H is also an applicable requirement. The
commission also deleted the Chapter 119 reference in the definition of applicable
requirement, since the regulation has been repealed. The definition of applicable
requirement includes all of the requirements under 30 TAC Chapter 106, Subchapter
A, General Requirements or 30 TAC Chapter 116, Control of Air Pollution by
Permits for New Construction or Modification and any term or condition of
any preconstruction permit, in response to the inconsistency with Part 70,
identified by the EPA in the June 7, 1995 notice, as previously mentioned.
The EPA specified that Chapter 122 was inconsistent with Part 70 because the
definition of applicable requirement excluded certain minor new source review
(NSR) authorizations as applicable requirements (60 FR 30039). In a draft
document which summarizes the inconsistencies between Chapter 122 and Part
70 identified in the 1995 and 1996 notices, the EPA identified an inconsistency
in the definition of applicable requirement that it overlooked in its original
review of the source category- limited interim program. Since the definition
of applicable requirement did not include Chapter 116, the EPA stated that
the definition failed to include SIP requirements for prevention of significant
deterioration (PSD) and nonattainment permitting. The revised definition addresses
the issue. In response to comment and for consistency with 40 CFR §70.2,
the definition now includes requirements that have been promulgated or approved
by the EPA through rulemaking at the time of issuance but have future-effective
dates. The commission also deletes §122.10(2)(K), since no concept of
federal only enforceability exists in Part 70. The commission is also correcting
capitalization errors and is making other formatting corrections in the definition.
The commission, in response to a comment, adds language to §122.10(7),
the definition of deviation, to clarify that deviations and compliance certifications
are not limited to information obtained through required monitoring. Similar
language is added to §122.146(4).
In response to comments on concurrent public notice and EPA review periods,
the commission amends §122.10(9), the definition of draft permit, to
specify that the draft permit may be the same document as the proposed permit.
The new definition allows the executive director to implement more efficient
permitting procedures for initial issuances, significant revisions, reopenings,
or renewals that do not receive public comments. However, the EPA review period
would occur after the public notice period when comments are received. This
will give the EPA the opportunity to consider any public comments received
and any other changes to the permit. Further, the commission is adopting changes
from the proposed language in §122.350(b)(1) to specify that public notice
and EPA review may run concurrently and, if appropriate, the executive director
may extend the EPA review period.
The commission adopts §122.10(11), the definition of "FCAA, §502(b)(10)
changes." This definition clarifies the types of changes to a permit that
qualify as operational flexibility and do not require a permit revision.
The commission amends §122.10(23), renumbered as §122.10(24),
the definition of preconstruction authorization. The amended definition includes
any authorization to construct or modify an existing facility or facilities
under Chapter 106, Permits by Rule and Chapter 116. This amendment addresses
the Part 70 inconsistency identified by the EPA in the June 7, 1995 notice
concerning the identification of minor NSR as an applicable requirement. The
commission also deletes the language relating to the delegation of FCAA, §112(g)
and (j) to the commission as part of the definition of preconstruction authorization.
This deletion addresses the issue that the EPA has raised on the validity
of the federal only enforceability designation. In Chapter 122, applicable
requirements were designated as federally enforceable only when they were
promulgated, but not yet adopted by and delegated to the commission. The commission
deleted the federally enforceable only designation, making this clarification
to the definition of preconstruction authorization necessary.
The commission amends the definition of site in §122.10(29), renumbered
as §122.10(30), to clarify that if research and development facilities
have the same two-digit standard industrial classification (SIC) code as a
collocated manufacturing facility, they will be included with the collocated
facility for operating permit applicability and permitting purposes.
In addition to these changes, the defined terms in Chapter 122, Subchapter
A are renumbered.
Subchapter B - Permit Requirements
The commission adopts amended §122.120 to clarify which sites are
required to obtain a permit. New §122.120(b) clarifies the applicability
of a site to Chapter 122 by further identifying what types of sites are not
subject to Chapter 122. In response to comments, the commission amends §122.120(b)
to refer to the criteria for sites that are not subject to Chapter 122, as
opposed to the owner or operator for those sites. This will eliminate confusion
for owners and operators of both sites that are subject to the program and
sites that are not. Section 122.120(b)(1) clarifies that a permit is not required
for non-major sites that the EPA has exempted from the obligation to obtain
a permit. Section 122.120(b)(2) states that non-major sites that are eligible
for an EPA deferral are not required to obtain a permit. Also, the commission
amends the newly designated §122.120(a) by adding the phrase "except
as identified in subsection (b)" to further clarify that the sites in §122.120(a)
are subject to Chapter 122 and those sites identified in §122.120(b)
are not. The commission also amends newly designated §122.120(a)(4) to
require that sites that are non-major which are no longer eligible for an
EPA deferral are required to obtain a permit.
The commission adopts amended §122.130 to delete a reference to the
interim and full operating permit programs. The interim program refers to
the permitting of those sources for which the commission was granted source
category-limited interim approval on June 25, 1996. All other sources permitted
under Chapter 122 are considered as permitted under the full operating permit
program. Since the commission is seeking full program approval from the EPA,
the references to the interim and full operating permit programs are unnecessary.
The amendments to this section include the entire deletion of subsection (a),
including the types of sources required to obtain a permit during the interim
program and the dates by which to apply. The commission deletes §122.130(b)(2),
which designated the primary SIC groups that should have applied for a permit
by July of 1998. The commission also deletes §122.130(b) and §122.139(1)
and amends §122.130(b)(1) and (3), and (c); §122.132(c); §122.134(c);
and §122.139(2); to delete references to the interim and full operating
permit programs and application due dates, and the references to the deleted §122.130(a)
and (b)(2). Section 122.130(c) specifies the requirements for sites that become
subject to the program after the effective date of the interim or full program.
Because the commission is deleting the references to the interim or full program,
it is also amending this subsection by using the date February 1, 1998, which
is the due date for abbreviated applications for sources subject to the full
program. Because of the deletions, §122.130 and §122.139 have been
renumbered.
The commission adopts amended §122.131 to add a new subsection (g)
to clarify that a site may not qualify for the phased permit detail process
if the commission receives its application after July 22, 2000. The commission
will, however, honor applications previously submitted in accordance with
the phased permit detail process. The commission will discontinue the option
because the process is overly resource intensive.
The commission adopts amended §122.132(e)(4)(B) to specify that the
determination of compliance status will be based on, at a minimum, but not
limited to, compliance methods specified in the applicable requirements. The
commission adopts amended §122.132(e)(4)(C)(iii) to specify that compliance
schedules shall be supplemental to and not sanction noncompliance with applicable
requirements.
The commission adopts new §122.132(e)(10), (e)(11), and (g). New §122.132(e)(10)
requires that fugitive emissions be included in permit applications and permits
in the same manner as stack emissions, regardless of whether the source category
in question is included in the list of sources contained in the definition
of major source. In response to negotiations with the EPA regarding its comments
pertaining to the incorporation of minor NSR, new §122.132(e)(11) requires
any application for which the executive director has not authorized initiation
of public notice by the effective date of this rule to include preconstruction
authorizations that are applicable to emission units at the site. New subsection
(g) clarifies that applicants are not required to submit information for facilities
that are identified as de minimis under §116.119, De Minimis Facilities
or Sources, unless these facilities are subject to an applicable requirement.
The facilities or sources addressed by §116.119 are not required to obtain
an NSR authorization before construction. Since they are not required to obtain
a preconstruction authorization, the commission will not require these facilities
or sources to be identified in an operating permit application. The concept
of de minimis facilities or sources is also consistent with 40 CFR §70.5(c),
which allows state programs to develop a list of insignificant activities
which do not need to be included in permit applications. In addition, the
commission deletes references to sources or facilities from §122.132(g)
and §122.146(5)(E). The rule now indicates that information on facilities
that are identified as de minimis under §116.119 is not required to be
included in applications or the annual compliance certification provided the
facility has no other applicable requirement. This amendment is necessary
because some sources or facilities identified as de minimis under §116.119
may have applicable requirements other than Chapter 116 and, therefore, will
need to include those sources in applications and the annual compliance certification.
The commission adopts amended §122.136. The adopted language requires
an applicant to submit any necessary information to address applicable requirements
or state-only requirements after a complete application is filed until the
point that the draft permit is released. This is consistent with 40 CFR §70.5(b).
The previous requirement stated that, if a site becomes subject to additional
applicable requirements or state-only requirements after an application is
submitted, an applicant must submit information to address those requirements
within 60 days after becoming subject to the new requirements. This amendment
will require applicants to keep permit applications up to date with new requirements,
but does not require them to update the application once public notice is
published. If a site becomes subject to new requirements after notice has
been published, the executive director will make a determination to request
additional information for the existing permitting action or require the permit
holder to revise the permit after it is issued. However, the site will still
need to be in compliance with the new requirements. In response to comments,
the commission amends §122.136(c) to clarify that additional information
will not be required to be submitted to the executive director before the
commencement of the technical review period to address requirements that become
applicable to the site after an application is filed. This is consistent with
40 CFR §70.5(b) and will reduce the amount of application material that
will need to be continually updated before the release of the draft permit.
The commission amends the title of §122.136 to "Application Deficiencies
and Supplemental Information" to better describe the contents of the section.
The commission adopts amended §122.139. Section §122.139(1) is
deleted and existing §122.139(2) is amended to remove reference to the
interim and full operating permit programs. The commission also renumbers
the section and updates existing §122.139(4), now §122.139(3), to
reference paragraphs (1) - (2), instead of paragraphs (1) - (3). In addition,
the commission corrects grammar in existing §122.139(2), now §122.139(1).
The commission adopts amended §122.140. Section 122.140(3) is amended
to clarify that information specified in §122.714(a), Compliance Assurance
Monitoring, or §122.612, Periodic Monitoring, becomes conditions under
which a permit holder shall operate upon the granting of an authorization
to operate under a compliance assurance monitoring general operating permit
(GOP) or periodic monitoring GOP. The commission also corrects a typographical
error in §122.140(3) and adds the appropriate section titles for the
rule citations.
The commission adopts amended §122.142. In response to comments, the
commission amends §122.142(b)(2)(B)(ii) to require that each permit contain
monitoring, recordkeeping, reporting, and testing requirements sufficient
to ensure compliance with the permit. This is consistent with 40 CFR §70.6(c)(1).
The commission amends §122.142(b)(3) to specify that permits shall contain
preconstruction authorizations and that the incorporation of preconstruction
authorizations shall be done in accordance with §122.231. The commission
adopts this amendment in response to the EPA June 7, 1995 notice which specifically
identified that the section on permit content did not properly identify minor
NSR as an applicable requirement. The commission also amends §122.142(b)(3)
to remove the requirement for applications for an authorization to operate
to contain preconstruction authorizations because it was redundant with §122.132(e)(11).
In response to comments, the commission adopts a new §122.142(h) to specify
that permits must include compliance assurance monitoring, as specified in
Subchapter H. This is consistent with 40 CFR §70.6(a)(3)(i)(A).
The commission adopts amended §122.143. In response to comments and
for consistency with 40 CFR §70.6(a)(6)(i), the commission amends §122.143(4)
to specify that any noncompliance with the terms or conditions codified in
the permit or the provisional terms and conditions is grounds for enforcement
action; permit termination, revocation and reissuance, or modification; or
denial of a permit renewal application. In response to comments, the commission
amends §122.143(8) to require, upon request by the executive director,
that the permit holder provide copies of records to be kept by the permit,
including any information claimed to be confidential. This is consistent with
40 CFR §70.6(a)(6)(v). The commission deletes §122.143(9). This
paragraph described the requirements for removing the federally enforceable
only designation once an applicable requirement is adopted by the commission.
The commission is eliminating the federally enforceable only designation;
therefore, this paragraph is no longer needed. The remaining paragraphs of §122.143
are renumbered accordingly.
The commission adopts amended §122.145. The commission amends §122.145(1)(A)
to specify that reports of monitoring data required to be submitted by an
applicable requirement, or by the permit, shall be submitted to the executive
director. The commission proposed the deletion of §122.145(2)(D). In
response to comments, the commission retains §122.145(2)(D), with amendments,
and deletes §122.145(3). Section 122.145(2)(D) now specifies that upset
reporting does not substitute for deviation reporting. The commission deletes §122.145(3)
because it is redundant with upset and maintenance reporting requirements
in Chapter 101, General Air Quality Rules.
The commission adopts amended §122.146. In response to comments, the
commission amends §122.146(2) to specify that compliance certifications
shall be submitted to the executive director and the EPA administrator. This
is consistent with 40 CFR §70.6(c)(5)(iv). The adopted amendment to §122.146(4)
requires permit holders to identify any material information that must be
included in the certification to comply with FCAA, §113(c)(2), which
prohibits knowingly making a false certification or omitting material information.
This requirement is consistent with 40 CFR §70.6(c)(5)(iii)(B). Also
in §122.146(4), the commission adds language to clarify that compliance
certifications are not limited to the information obtained through the required
monitoring. The commission corrects the punctuation among the series of subparagraphs
in §122.146(5). The amendment to §122.146(5)(A) requires certifications
to contain information stating whether the method used for determining the
compliance status of each emission unit provides continuous or intermittent
data. This requirement is also consistent with 40 CFR §70.6(c)(5)(iii)(B).
The commission adopts a new §122.146(5)(E) which clarifies that annual
compliance certifications are not required to include any information on facilities
identified as de minimis under §116.119, De Minimis Facilities or Sources,
provided that the facility has no applicable requirements. As previously mentioned,
the commission is proposing to add §122.132(g), which specifies that
operating permit applications are not required to include information for
de mininis facilities which have no applicable requirements. Since the information
is not necessary in the application, the executive director will not require
the information to be certified for compliance. The commission adopts a new §122.146(6)
which allows the executive director to request additional information if necessary
to determine the compliance status of an emission unit. This requirement is
consistent with 40 CFR §70.6(c)(5)(iii)(D).
Subchapter C - Initial Permit Issuances, Revisions,
Reopenings, and Renewals
The commission adopts amended §122.210. The commission proposed changes
to §122.210(a), but in response to comments, the commission is not adopting
the proposed changes. The commission agrees with the commenter that the proposed
language did not clarify the subsection. The commission deletes §122.210(b)
which identified the situations warranting a permit revision. This information
is redundant and not as inclusive as that in §§122.211, 122.215,
122.218, and 122.219 which identify the types of changes that qualify as administrative,
minor, or significant revisions, respectively. The subsequent subsections
are renumbered accordingly.
The commission adopts amended §122.211. The commission adopts a new §122.211(2)
that is consistent with 40 CFR §70.7(d)(1)(ii) and specifies that a change
in name, address, contact phone number, or other similar change qualifies
as an administrative permit revision. The subsequent subsections are renumbered
accordingly. The commission also adopts a new §122.211(5), which specifies
that changes which incorporate preconstruction authorizations under an EPA-approved
program that meets procedural requirements substantially equivalent to those
of Subchapters C and D, and compliance and requirements substantially equivalent
to §§122.143, 122.145, and 122.146 may qualify as administrative
permit revisions. This is consistent with 40 CFR §70.7(d)(1)(v) and would
provide additional flexibility offered by Part 70 that could be used in the
future to incorporate requirements into operating permits. The commission
deletes the language which specified that removing a federally enforceable
only designation is an administrative revision. The commission eliminated
this designation of federally enforceable only because it may be inconsistent
with 40 CFR Part 70.
The commission adopts amended §122.212 to clarify that the application
information requirements apply to administrative permit revisions.
The commission adopts amended §122.213. Section 122.213(a) is amended
to replace the text referring to changes required as the result of the adoption
of a state-only requirement with text describing changes listed in §122.211.
This text is more accurate because §122.213 describes procedures for
administrative permit revisions, and changes that affect or add state-only
requirements are only one type of administrative amendment identified in §122.211.
Also, the appropriate section title is added to the rule citation. The commission
also deletes §122.213(a)(1) because the requirements listed in the paragraph
are now included as applicable requirements under the FOP program. The subsequent
paragraphs are renumbered accordingly. The commission amends §122.213(d)
by adding the word "administrative" to describe the permit revision type for
clarity.
The commission repeals the existing §122.215 and adopts a new §122.215
to make the criteria for minor permit revisions the same as the criteria in
40 CFR §70.7(e)(2)(i)(A)(1) - (5). The commission corrects a typographical
error in §122.215(4)(A) by deleting "an" and inserting "any".
The commission adopts amended §122.216. Because 40 CFR §70.7(e)(2)(v),
allows the site to operate a change once a minor permit application is submitted
and 40 CFR Part 70 does not allow the permit to be revised after notices have
been sent over a 12-month period, the commission deletes §122.216(a).
Due to this deletion, the section contains only one subsection which requires
no further designation other than the section number. The commission amends §122.216
to specify the minimum information required in the subsection applies to minor
permit revisions. In response to comments and to be consistent with 40 CFR §70.7(e)(2)(ii)(A),
the commission adds a new §122.216(6) to require minor permit revision
applications to include the emissions resulting from the change.
The commission adopts amended §122.217. The commission deletes §122.217(a)(1)(A)
and (b)(1)(A) because these subparagraphs were redundant citations requiring
that permit holders comply with Chapter 116 which is now included in the FOP
program as an applicable requirement. The remaining subparagraphs in each
subsection are renumbered accordingly. In response to comments and to be consistent
with 40 CFR §70.7(e)(2)(v), the commission amends §122.217(a)(1)(A)
- (C) and §122.217(b)(1)(A) - (C) to specify that the permit holder must
comply with applicable requirements, state only requirements, and provisional
terms and conditions governing the change at a site. The commission amends §122.217(a)(2)
to require that permit holders submit an application to the executive director
instead of a notice to address an inconsistency with Part 70 identified by
the EPA in the June 7, 1995 notice and to be consistent with 40 CFR §70.7(e)(2)(v).
The commission amends §122.217(a)(2) and (3) and (b)(2) and (3) to correctly
reference the amended §122.216. The commission deletes an incorrect phrase
in §122.217(b). The commission also amends §122.217(b)(2) to remove
the requirement to record the information and also to require the information
relating to the minor permit revision to be submitted no later than the compliance
date of a new requirement or effective date of a repealed requirement, not
45 days after such date. This is consistent with 40 CFR §70.7(e)(2)(v),
which requires minor permit revision applications to be submitted before a
change is operated. Section §122.217(b)(2) requires a compliance date
or an effective date and, for clarification, the commission has added the
phrase "whichever is applicable." Section 122.217(b)(3) specifies that the
information relating to minor permit revisions is to be maintained until the
permit is revised. The commission amends this paragraph to reflect that the
information is to be maintained until the permit revision is final, for clarity
and consistency with 40 CFR §70.7(e)(2)(v). To be consistent with 40
CFR §70.7(e)(2)(iii), the commission adopts a new subsection (e) requiring
the executive director to notify the EPA and affected states of minor permit
applications. The commission amends §122.217(f)(2) to specify that the
executive director may issue a revision provided that a complete application
is submitted. Lastly, in order to address Part 70 inconsistencies identified
by the EPA in the June 7, 1995 notice, the commission amends §122.217(g)
requiring the executive director to take final action on a minor permit revision
application no later than 90 days after the receipt of an application or 15
days after the end of the EPA review period, whichever is later. This is consistent
with 40 CFR §70.7(e)(2)(iv).
The commission adopts a new §122.218 that is consistent with 40 CFR §70.7(e)(2)(i)(B).
This section allows permit holders using economic incentives, marketable permits,
and emissions trading to incorporate the changes into operating permits using
a minor permit revision. Title 40 CFR §70.7(e)(2)(i)(B) provides that
the minor permit revision process may be used for revisions involving these
actions, as long as the SIP, or the particular applicable requirement, allows
for the use of the minor permit revision process. In order to allow for this
option in Chapter 122, §§122.215 - 122.218 will be submitted as
a SIP revision. The commission also adds the appropriate title to the rule
citation for §122.215.
The commission repeals the existing §122.219 and adopts a new §122.219
specifying that changes to a permit shall be processed as significant revisions
if they do not meet the criteria for administrative or minor revisions. This
is consistent with 40 CFR §70.7(e)(4)(i). In response to comments, the
commission adds a new §122.219(b) to be consistent with 40 CFR §70.7(e)(4)(i)
which specifies that, at a minimum, every significant change in existing monitoring
permit terms or conditions and every relaxation of reporting or recordkeeping
permit terms or conditions shall be considered a significant permit revision.
The commission adopts amended §122.221 to delete §122.221(b)(1)
which specifies that significant revisions may be issued if the change meets
the criteria for a significant permit revision. This requirement is unnecessary
because the commission has deleted the criteria for significant permit revisions
and made significant revisions the default revision type. The subsequent paragraphs
are renumbered accordingly. The commission clarifies existing §122.221(b)(2),
now §122.221(b)(1), by adding the term "complete."
The commission adopts a new §122.222 to provide operational flexibility
in order to be consistent with 40 CFR §70.4(b)(12) and to specify requirements
for off-permit changes in order to be consistent with 40 CFR §70.4(b)(14).
In response to comments and to be consistent with §70.4(b)(12)(i), the
commission modifies §122.222(a)(4) to state that a change may be operated
under operational flexibility if the permit holder has obtained any preconstruction
authorization, which cannot be a modification under FCAA, Title I. In response
to comments, the commission adds a new subsection (b) that allows the removal
of applicable conditions and permit terms from a permit following the removal
of a unit from a site provided the applicable requirements and permit terms
for the remaining units are not affected. Also in response to comments, the
commission amends existing §122.222(b), now designated as §122.222(c),
to specify that written notification of operational flexibility be submitted
to the EPA on the same schedule as the executive director and to specify that
notice may be provided within two working days of implementation of operational
flexibility changes due to an emergency and that the notice shall also include
an explanation of the emergency. These amendments are consistent with 40 CFR §70.4(b)(12).
In response to comments, the commission adds new §122.222(d) and (e)
to incorporate the operational flexibility provisions provided in 40 CFR §70.4(b)(12)(ii)
- (iii). Existing subsections (c) - (g) become (f) - (j). Also in response
to comments, the commission adds a clarifying statement to paragraph (1) and
adds new paragraphs (2) and (3) to the newly designated §122.222(f) to
describe procedures for use with emissions trading. The commission adds clarification
regarding written notification in existing §122.222(f)(2), now designated
as §122.222(f)(4). The commission also adds appropriate section titles
to rule citations in this section. In response to negotiations with the EPA
regarding its comments pertaining to the incorporation of minor NSR, the commission
adds §122.222(k) to address off-permit changes, consistent with 40 CFR §70(b)(14).
The commission also changes the title of the section to Operational Flexibility
and Off-Permit Changes.
The commission adopts amended §122.231 for clarification. In response
to comments, the commission amends the language in §122.231(a)(1)(B)
to be more consistent with 40 CFR §70.7(f)(1)(i). The commission adopts
a new §122.231(a)(1)(C) that is consistent with 40 CFR §70.7(f)(1)(i)
requiring the executive director to reopen permits to incorporate newly promulgated
or adopted applicable requirements when the remaining permit term is less
than three years. In response to comments and to be consistent with 40 CFR §70.7(f)(1)(iii),
the commission amends §122.231(a)(2) to specify that the executive director
has cause for reopening a permit when the executive director or the EPA administrator
determines that the permit contains a material mistake. In response to comments
and to be consistent with 40 CFR §70.7(f) and (g), the commission amends §122.231(a)(4)
to require a reopening if the executive director or the EPA administrator
determines that the permit must be revised or terminated to assure compliance
with applicable requirements. To be consistent with 40 CFR §70.7(f)(1)(ii),
the commission adds a new §122.231(a)(6) to specify that the executive
director has cause to reopen a permit to incorporate additional requirements,
including excess emissions requirements, if those requirements become applicable
to an affected source under the acid rain program. Upon approval by the EPA
administrator, excess emissions offset plans shall be deemed to be incorporated
into the permit.
The commission also amends §122.231(b)(1) to state that the executive
director is required to submit a proposed determination no later than 180
days after receipt of a notification of a reopening initiated by the EPA if
the EPA has extended the period for response. This is consistent with 40 CFR §70.7(g)(2).
The commission amends §122.231(b)(3) to require the executive director
to resolve and take action on a reopening 90 days after receipt of an EPA
objection. The previous language required the executive director to take action
on a reopening 90 days from the end of the EPA review period or the resolution
of any objection. Part 70 does not allow the action on the reopening to be
delayed in this manner and the amendment is consistent with 40 CFR §70.7(f)(2).
The commission adopts new subsection (c), with revisions, to address the
incorporation of minor NSR. The amendment states that the executive director
shall institute proceedings to reopen permits and authorizations to operate
that do not contain the applicable requirements relating to minor NSR, as
adopted in §122.10(2)(H). This is consistent with 40 CFR §70.4(d)(3)(ii)(D).
The commission adds language stating that applications for which the executive
director has authorized initiation of public notice by the effective date
of this rule , requirements under Chapter 106, Subchapter A, or Chapter 116
of this title or any term or condition of any preconstruction permit will
be incorporated no later than permit renewal. Applications for which the executive
director has not authorized initiation of public notice by the effective date
of this rule will include NSR at initial issuance. Existing subsections (c)
- (f) become (d) - (g). The commission amends newly designated subsection
(d) to state that, except as provided in §122.231(c), reopenings shall
be made as soon as possible. This is consistent with 40 CFR §70.7(f)(2).
The commission also clarifies the 30-day notice language in newly designated
subsection (e).
Subchapter D - Public Announcement, Public Notice,
Affected State Review, Notice and Comment Hearing, Notice of Proposed Final
Action, EPA Review, and Public Petition
The commission adopts amended §122.320 to make the sign posting requirements
in Chapter 122 consistent with those of 30 TAC Chapter 39, Public Notice,
which specifies public notice requirements for solid waste, water quality
and air quality permit applications. As a part of the public notice requirements,
new source review permits are required to post signs in accordance with the
requirements of Chapter 39. The adoption makes Chapter 122 requirements consistent
with Chapter 39 requirements in order to simplify the public notice process
if the executive director should, at some point, allow for concurrent NSR
permitting and operating permit public notice. The commission amends §122.320(h)
to require all lettering be no less than 1 1/2 inches in size in block printed
capital lettering, which is consistent with Chapter 39. Also, for consistency
with Chapter 39, the commission amends §122.320(h)(1) to clarify that
the sign is provided by the applicant and should substantially meet §122(h)(1)(A)
- (G). The commission also adopts a new §122.320(h)(G) requiring that
the company name applying for the permit be printed on the sign.
For consistency with the definition of affected state in 40 CFR §70.2,
the commission amends §122.330(b)(1) to clarify that an affected state
is one whose air quality may be affected by the issuance or denial of an operating
permit and also that the state must be contiguous to Texas. The commission
amends §122.330(b)(2) to clarify that §122.330(b)(1) and (2) are
two separate criteria defining an affected state.
The commission adopts a new §122.340(f) requiring an applicant to
submit a copy of the notice of hearing of a permit action and date of publication
to the executive director and all local air pollution control agencies with
jurisdiction in the county in which the site is located.
The commission adopts amended §122.350. The proposed §122.350(b)(1)
enabled the public notice period and the EPA review period to run concurrently
with, rather than after the end of the public comment period. In response
to comments, the commission amends §122.350(b)(1) to give the executive
director discretion to extend the EPA review period.
The commission adopts amended §122.360(c) to clarify that the petition
for GOPs must be filed no later than 60 days after issuance of the GOP by
the executive director to address timing concerns with the GOP issuance process.
Subchapter G - Periodic Monitoring
The commission adopts amended §122.608(e) to correctly reference compliance
assurance monitoring (CAM) instead of periodic monitoring. The commission
also adds language to identify a rule citation.
Subchapter H - Compliance Assurance Monitoring
The commission adopts amended §122.706(a) and (a)(1)(E) to correct
typographical errors.
The commission also adopts amended §122.708(b)(1)(A) and (2)(B) to
correct inaccurate identifying references.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking does not meet the definition of a "major environmental
rule" as defined in that statute. "Major environmental rule" means a rule,
the specific intent of which, is to protect the environment or reduce risks
to human health from environmental exposure and that may adversely affect
in a material way the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state.
The commission does not believe that the adopted rules will have an adverse,
material effect on the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state. On
May 22, 2000, the EPA set a deadline that any program revisions necessary
for obtaining full FOP program approval must be submitted to the EPA not later
than June 1, 2001, and granted a third extension, extending up to December
1, 2001, for all operating permits program interim approvals (65 FR 32035).
The commission's FOP program is an interim-approved program subject to the
EPA's notice. The commission adopts these rules to resolve inconsistencies
which exist between Chapter 122 and Part 70 so that the EPA may grant full
program approval to the commission's operating permit program. The commission
must submit program revisions to the EPA no later than June 1, 2001. The revisions
that are necessary to obtain full program approval will have an impact on
the major sources subject to the program. However, the commission does not
believe that this impact will be adverse or material. All of the affected
major sources in the state have either already obtained an operating permit
or have applications pending. The requirements of this adoption to incorporate
preconstruction authorizations into operating permits will begin no later
than renewal of the operating permits. Although the new requirement to incorporate
minor NSR may be seen as a significant change to the program, the commission
believes that most, if not all, of the facilities covered by the preconstruction
authorizations are already addressed in operating permits. As discussed in
the preamble, sites currently authorized by a rule-based GOP will most likely
need to apply for the new executive director-issued GOP or obtain a different
federal operating permit due to the extensive revisions to include new and
revised applicable requirements and the minor NSR authorizations. The commission
believes most of the sites authorized by a GOP will be able to meet the new
GOPs. If the commission fails to submit a program that the EPA can approve
by December 1, 2001, the EPA must implement 40 CFR Part 71 in the state and
the state could face sanctions including loss of highway funds and increased
offsets in nonattainment areas.
The adopted rules do not meet any of the four applicability criteria for
requiring a regulatory analysis of "major environmental rule" as defined in
the Texas Government Code. Texas Government Code, §2001.0225 applies
only to a major environmental rule, the result of which is to: 1.) exceed
a standard set by federal law, unless the rule is specifically required by
state law; 2.) exceed an express requirement of state law, unless the rule
is specifically required by federal law; 3.) exceed a requirement of a delegation
agreement or contract between the state and an agency or representative of
the federal government to implement a state and federal program; or 4.) adopt
a rule solely under the general powers of the agency instead of under a specific
state law.
During the 75th Legislative Session, Senate (SB) 633 amended the Texas
Government Code to require agencies to perform a regulatory impact analysis
of certain rules. The intent of SB 633 was to require agencies to conduct
a regulatory impact analysis (RIA) of extraordinary rules. These are identified
in the statutory language as major environmental rules that will have a material
adverse impact and will exceed a requirement of state law, federal law, or
a delegated federal program, or are adopted solely under the general powers
of the agency. With the understanding that this requirement would seldom apply,
the commission provided a cost estimate for SB 633 that concluded "based on
an assessment of rules adopted by the agency in the past, it is not anticipated
that the bill will have significant fiscal implications for the agency due
to its limited application." The commission also noted that the number of
rules that would require assessment under the provisions of the bill was not
large. This conclusion was based, in part, on the criteria set forth in the
bill that exempted proposed rules from the full analysis unless the rule was
a major environmental rule that exceeds a federal law. If each rule proposed
for implementation of federally required programs, such as Part 70, was considered
to be a major environmental rule that exceeds federal law, then every such
rule would require the full RIA contemplated by SB 633. This conclusion is
inconsistent with the conclusions reached by the commission in its cost estimate
and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature
is presumed to understand the fiscal impacts of the bills it passes, and that
presumption is based on information provided by state agencies and the LBB,
the commission believes that the intent of SB 633 was only to require the
full RIA for rules that are extraordinary in nature. While the revisions to
Chapter 122 may have a broad impact, that impact is no greater than is necessary
or appropriate to meet the requirements of the FCAA and Part 70.
The TNRCC has consistently applied this construction to its rules since
this statute was enacted in 1997. Since that time, the legislature has revised
the Texas Government Code but left this provision substantially unamended.
It is presumed that "when an agency interpretation is in effect at the time
the legislature amends the laws without making substantial change in the statute,
the legislature is deemed to have accepted the agency's interpretation."
These rules are adopted in order to meet the requirements of FCAA, Title
V and Part 70. Therefore in addition to not exceeding an express standard
set by federal law, these rules do not exceed state requirements, and are
not adopted solely under the general powers of the agency because the provisions
of the TCAA and TWC provided in the STATUTORY AUTHORITY section of this preamble,
provide the commission the authority necessary to implement the FOP program.
The rules will achieve their stated purpose by addressing the EPA's comments
from the interim program approval notice and by making necessary revisions
to be consistent with Part 70. The remaining applicability criteria, pertaining
to exceeding a delegation agreement or contract between the state and the
federal government does not apply. Thus, the commission is not required to
conduct a regulatory analysis as provided in Texas Government Code, §2001.0225.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an assessment
of whether the adopted rules are subject to Texas Government Code, Chapter
2007. The following is a summary of that assessment. On May 22, 2000, the
EPA set a deadline that any program revisions necessary for obtaining full
FOP program approval must be submitted to the EPA not later than June 1, 2001,
and granted a third extension, extending up to December 1, 2001, for all operating
permits program interim approvals (65 FR 32035). The commission's FOP program
is an interim-approved program subject to the EPA's notice. The commission
adopts these rules to resolve inconsistencies which exist between Chapter
122 and Part 70 so that the EPA may grant full program approval to the commission's
operating permit program. The commission must submit program revisions to
the EPA no later than June 1, 2001. If the commission fails to submit a program
that the EPA can approve by December 1, 2001, the EPA must implement Part
71 in the state and the state could face sanctions including loss of highway
funds and offsets in nonattainment areas.
The purpose of this rulemaking is to address the inconsistencies which
exist between Chapter 122 and Part 70 so that the EPA may grant full program
approval for the state's operating permit program. The rules will achieve
their stated purpose by addressing the EPA's comments from the interim program
approval notice and by making necessary revisions to be consistent with Part
70. Because the amendments are an action that is reasonably taken to fulfill
an obligation mandated by federal law, the amendments meet the exception in
Texas Government Code, §2007.003(b)(4). The commission has included elsewhere
in this preamble the necessity for the proposed rules. For these reasons the
rules do not constitute a takings under Chapter 2007 and do not require additional
analysis.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that the rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq.
), and the
commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the Texas Coastal Management Program. As required by §281.45(a)(3)
and 31 TAC §505.11(b)(2) relating to actions and rules subject to the
CMP, commission rules governing air pollutant emissions must be consistent
with the applicable goals and policies of the CMP. The commission reviewed
this rulemaking action for consistency with the CMP goals and policies in
accordance with the rules of the Coastal Coordination Council, and determined
that this rulemaking action is consistent with the applicable CMP goals and
policies. The CMP goal applicable to the adopted rules is 31 TAC §501.12(1).
This goal requires the protection, preservation, restoration, and enhancement
of the diversity, quality, quantity, functions, and values of coastal natural
resource areas. The CMP policy applicable to the adopted rules is §501.14(q),
concerning policies for specific activities and coastal natural resource areas.
Title 31 TAC §501.14(q) requires commission rules under the Texas Health
and Safety Code (THSC), Chapter 382, governing emissions of air pollutants,
to comply with the regulations in 40 CFR adopted pursuant to 42 United States
Code (USC) §§7401
et seq.
, to protect
and enhance air quality in the coastal areas so as to protect coastal natural
resource areas and promote public health, safety, and welfare. The adopted
rules are necessary in order to meet the provisions of Part 70 so that the
commission's operating permit program can obtain full program approval. These
amendments are consistent with the previously stated goals and policies of
the CMP. The permits issued under Chapter 122 do not authorize the increase
in air emissions nor do these permits authorize new air emissions.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
This adoption deals exclusively with major sources holding FOPs. Owners
or operators of these sources should be prepared to amend their permits as
discussed previously in this preamble.
HEARING AND COMMENTERS
The commission held a public hearing on the proposal at the TNRCC Complex
in Austin, Texas, on February 20, 2001. The commission received comments from
12 organizations and 118 individuals during the public comment period which
closed on February 26, 2001. All the commenters supported the commission's
effort to obtain final approval of its federal operating permit program but
opposed specific parts of the proposal.
Representatives from the Environmental Enforcement Project of the Rockefeller
Family Fund (EEP), Neighbors for Neighbors (NFN), Public Citizen (PC), Sustainable
Energy and Economic Development Coalition (SEED), Lone Star Chapter of the
Sierra Club (Sierra), and the Texas Campaign for the Environment (TCE) made
comments at the public hearing.
Baker Botts, L.L.P., on behalf of the Texas Industry Project (TIP); BP;
United States Environmental Protection Agency (EPA); ExxonMobil; NFN; Quality
of Life El Paso (QLEP); Texas Chemical Council (TCC); Texas Oil & Gas
Association (TXOGA); and 118 individuals submitted written comments. PC submitted
written comments on behalf of its Texas office, American Lung Association,
Texas Impact, Environmental Defense, Sierra, Henry Lowerre & Frederick,
Public Interest Research Group, TCE, SEED, San Antonio Coalition for Environmental
and Economic Justice, Galveston Houston Association for Smog Prevention, NFN,
Mothers for Clean Air, Blue Skies Alliance, Downwinders at Risk, People United
for the Environment, and QLEP.
RESPONSE TO COMMENTS
Comment
The EPA commented that it supports the commission's efforts to correct
previously identified inconsistencies in the FOP program. However, the EPA
commented that further inconsistencies must be addressed in order for Texas
to have a fully approvable program. First, the commission's regulations do
not define "emergency" consistent with 40 CFR §70.6(g)(1). Chapter 101
contains a definition of upset, but it does not meet the Part 70 definition
of emergency. The Chapter 101 definition of upset is broader than the Part
70 definition of emergency, hence allowing more situations to be subject to
the exemption from enforcement. Also, the definition of upset differs from
the definition of emergency in that upsets are not limited to the exceedence
of technology based emission limits. The EPA gave, as an example of non-technology
based standard, an exceedence of permit limits due to an extension of operating
hours. PC also commented that Chapter 101 exempts excess emissions which do
not qualify as emergencies under 40 CFR §70.6(g). BP concurred with the
commission's opinion that the notification requirements of Chapter 101 meet
the requirements of Part 70.
Response
The commission does not change the rule in response to these comments.
The commission believes that its definition of upset and the criteria for
exempting upset emissions from compliance is consistent with the definition
of emergency under Part 70. The EPA definition of emergency is an event that
is sudden, reasonably unforeseeable, and beyond the control of the owner or
operator that causes the exceedence of a technology based standard. The commission
definition of upset is an unscheduled occurrence or excursion of a process
or operation that results in an unauthorized emission of air contaminants.
The commission's definition of upset includes events other than technology
based failures which can cause unauthorized emissions. However, the requirements
that must be met in order to be considered an upset are consistent with the
language and intent of Part 70. Chapter 101 specifies that upset emissions
are exempt from compliance with air emission limitations if the owner or operator
complies with the requirements of §101.6; the unauthorized emissions
were caused by a sudden breakdown of equipment beyond the control of the operator;
the unauthorized emissions did not stem from any activity that could have
been foreseen and avoided and could not have been avoided by good design,
operation, and maintenance practices; the air pollution control equipment
or processes were maintained and operated in a manner consistent with good
practice for minimizing emissions; prompt action was taken once the operator
knew that applicable emission limitations were being exceeded; the amount
and duration of the unauthorized emissions were minimized; all emission monitoring
systems were kept in operation, if possible; the owner's or operator's actions
in response to the unauthorized emissions were documented by contemporaneous
operation logs or other relevant evidence; the unauthorized emissions were
not part of a recurring pattern indicative of inadequate design, operation,
or maintenance; and the unauthorized emissions did not cause or contribute
to a condition of air pollution. The commission believes that its requirements
under Chapter 101 are at least equivalent to those under the federal rules
concerning emergencies. Section 101.11 requires an owner or operator of a
source to meet certain criteria in order to receive an exemption for unauthorized
emissions. These criteria require that the unauthorized emission must be the
result of sudden breakdowns in equipment or process beyond the control of
the owner or operator and could not have been avoided by good design, operation,
and maintenance. The section also requires the proper documentation of actions
taken in response to the upset. In §101.11, the commission states that
upset emissions are exempt from compliance with emission limitations in permits
or rules if the owner or operator satisfies the exemption criteria. The exemption
requirements were developed from language suggested by the EPA during the
revision of the commission's upset/maintenance rules in the Spring and Summer
of 2000 and are equivalent to the federal conditions that establish the existence
of an emergency. The rules containing these requirements were subsequently
approved into the SIP.
To consider the EPA's example of a non-technology based standard, an extension
of operating hours might represent an excursion from normal process, but it
would have to be a planned or scheduled event. Even if the planning or scheduling
interval was short, it would not meet the criteria to be exempt from compliance
with the applicable rule, since it was a planned event. The commission's criteria
to exempt upset emissions require the owner or operator to demonstrate that
the event was a sudden breakdown in equipment or process, was beyond the control
of the owner or operator, and could not have been foreseen or avoided by good
design, operation and maintenance practices. These criteria clearly exclude
operator error from exemption which might also be taken as an example of an
event that is non-technology based.
Comment
The EPA commented that Chapter 101 improperly provides for exemptions from
permit requirements rather than an affirmative defense as required in 40 CFR §70.6(g)(2)
and (3).
Response
The commission does not change the rule in response to this comment. Under
40 CFR §70.6(g)(2), an emergency constitutes an affirmative defense in
any action brought for noncompliance with technology based emission standards.
The burden of proof to establish the occurrence of an emergency is on the
owner or operator of the source; therefore, the responsibility to establish
an affirmative defense is that of the owner or operator. The Part 70 definition
of emergency includes situations that are unforeseen and unavoidable and assumes
proper operation of the source. The commission assumes that, under the federal
rules, any proceeding evaluating the existence of an emergency and determining
that an emergency existed will result in the deferment of enforcement for
any emissions in excess of permitted or otherwise authorized limits.
The commission believes that its requirements under Chapter 101 are equivalent
to those under the federal rules concerning emergencies. Section 101.11 requires
an owner or operator of a source to meet certain criteria in order to receive
an exemption for unauthorized emissions. These criteria require that the unauthorized
emission must be the result of sudden breakdowns in equipment or process beyond
the control of the owner or operator and could not have been avoided by good
design, operation, and maintenance. The section also requires the proper documentation
of actions taken in response to the upset. The exemption requirements were
developed from language suggested by the EPA during the revision of the commission's
upset/maintenance rules in the Spring and Summer of 2000 and are equivalent
to Part 70 conditions that establish the existence of an emergency. The revisions
to Chapter 101 implementing these requirements were subsequently approved
into the SIP and they clearly place the burden of proof to establish the exemption
conditions on the source owner or operator. In §101.11, the commission
states that upset emissions are exempt from compliance with emission limitations
in permits or rules if the owner or operator satisfies the exemption criteria.
The emissions are still considered unauthorized, and the phrase "exempt from
compliance" means that the commission will not pursue an enforcement action
for that particular occurrence of unauthorized emissions. The commission believes
that this is the same result that occurs from the application of the emergency
and affirmative defense criteria in Part 70 and that the two procedures place
an identical burden of proof on the owner or operator and achieve equivalent
results.
Comment
The EPA commented that 40 CFR §70.6(g)(5) provides that an upset in
a SIP cannot substitute for the emergency reporting and related affirmative
defense provisions in Part 70. Therefore, a separate emergency provision is
required in order to correct this inconsistency.
Response
The commission believes that the arguments EPA made in the final Part 70
concerning the de minimis justification for minor permit modification procedures
(57 FR 32284) can be used to support the insignificant distinctions between
the Chapter 101 upset provisions and the Part 70 emergency provisions. Although
the goal of Title V is to issue permits that assure compliance with applicable
requirements, the provisions concerning enforcement are general in nature.
Title V does not have any provisions for the treatment of emergencies or upsets
for major sources. Thus the emergency provisions in Part 70 are not required
to conform to statutory restrictions for emergencies. Since EPA is not constrained
by statutory limitations for emergency provisions, the commission believes
that EPA can exercise its discretion to approve de minimis exemptions to the
emergency provision requirements of Part 70. The differences between the upset
provisions of Chapter 101 and the emergency provision in Part 70 are not significant
and requiring an emergency provision in addition to the upset provisions in
Chapter 101 would "yield a gain of trivial or no value,"
Alabama Power Company v Costle, 6
36 F.2d 323, 361 (D.C. Cir. 1979).
As developed in the immediately previous response, the commission believes
that the reporting and exemption requirements in Chapter 101 are equivalent
to, and yield the same results as, the emergency and affirmative defense provisions
of Part 70. Reports of unauthorized emissions under Chapter 101 must also
be included or referenced in deviation reports under §122.145, Reporting
Terms and Conditions. The commission notes that the Chapter 101 upset/maintenance
provisions have been approved into the SIP. The result of including a separate
emergency provision for upset reporting would be two required reports on the
same event and containing the same information. The commission believes this
would be a redundant and unnecessary requirement and does not change the rule
in response to this comment.
Comment
PC commented that Chapter 101 violates federal requirements by automatically
exempting facilities from penalties and injunctive relief; exempting emissions
from predictable and scheduled events; exempting violations which are not
technology based; and barring the EPA's and citizens' ability to enforce applicable
requirements. NFN commented that broad, automatic exemptions that the commission
allows, coupled with the barriers to the EPA or citizen enforcement of applicable
requirements, violate federal requirements. EEP commented that operating permits
should not be drafted to provide special exemptions when upsets occur and
that it is not appropriate for a regulatory agency to write forgiveness right
into a permit. If something goes wrong and the permit holder fails to comply
with the permit limit, that is a violation that should subject the permit
holder to enforcement action.
Response
The commission does not change the rule in response to this comment. The
commission rules governing the exemption from enforcement of unauthorized
emissions from upsets and maintenance do not provide an automatic exemption.
The commission has previously stated in this response to comments (and in
the rulemaking to the recently revised and the EPA approved provisions in
Chapter 101) that the responsibility, under commission rules, of the owner
or operator of a source to demonstrate that upsets resulting in unauthorized
emissions are sudden and unavoidable events beyond his or her control and
could not have been prevented by good design, operation, and maintenance practices.
The exemption criteria for emissions resulting from maintenance place a similar
burden of proof on the owner or operator to demonstrate that maintenance emissions
could not have been prevented through planning and design and are not part
of a recurring pattern. The commission's rules only address enforcement under
state law and do not preclude action by the federal government nor the introduction
of evidence by citizens.
Comment
The EPA requested clarification of whether Chapter 101 is consistent with
Part 70. Title 40 CFR §70.6(g)(3)(i) specifies that the permit holder
must be able to identify the cause of the emergency in order to establish
an affirmative defense. Section 101.6(a)(2)(A) and (3)(A) only require that
the owner identify the cause in its notice if it knows the cause. The EPA
also pointed out that §101.11(a) specifies that the exemption only applies
to unauthorized emissions caused by a sudden breakdown of equipment or process.
Response
The commission does not change the rule in response to this comment. The
commission believes that Chapter 101 is consistent with Part 70. The EPA is
correct in stating that §101.6(a)(2)(A) and (3)(A) require reporting
the cause of an upset if that cause is known at the time of original notification.
Emissions resulting from upsets must be reported to the commission within
24 hours if those emissions are above a certain specified amount. The commission
recognizes that the cause of the upset may not be known within that period.
Should the cause of an upset be determined to be different than that originally
reported or was not known at the time of the original report, then a follow-up
report under §101.6(c) must be submitted to the commission within two
weeks of the upset.
Comment
The EPA commented that Chapter 101 is inconsistent with 40 CFR §70.6(g)(3)(iv),
which contemplates written notification of emergencies. Also, Chapter 101
is inconsistent with Part 70 in that Chapter 101 only provides for prompt
reporting of upsets which exceed the reportable quantity. Title 40 CFR §70.6(g)
requires the reporting of all emergencies. Contrary to the requirements of
40 CFR §70.6(g), Chapter 101 would allow upsets which did not exceed
the reportable quantity be eligible for an exemption for enforcement even
though notification was not submitted to the state.
Response
The commission does not change the rule in response to this comment. The
commission does not believe that the language in §70.6(g)(3)(iv) contemplates
a particular form of a notice, but rather, it requires certain information
to be provided to the permitting authority regarding an emergency. Further,
the commission believes that had EPA intended to specifically require a written
notice, it would have done so, as it does in the National Pollutant Discharge
and Elimination System (NPDES) rules. EPA states in the preamble to the 1992
Part 70 that the emergency provision in §70.6 is "modeled after the NPDES
upset provision in 40 CFR §122.41," (57 FR 32279). Although EPA notes
that the NPDES provisions will not be binding precedent for the implementation
of Title V, it did state that it would look to the NPDES program for guidance,
(57 FR 32260). The provisions of §70.6(a)(3) are patterned after 40 CFR §122.41(n),
Upset. Title 40 CFR §122.41(n) requires a permittee to submit notice
of an upset as required by §122.41(l)(6)(ii)(B). The rule provides that
"any information shall be provided orally within 24 hours from the time the
permittee becomes aware of the circumstances. A written submission shall also
be provided within five days of the time the permittee becomes aware of the
circumstances." In the NPDES rules, EPA required specific methods for the
reporting of an upset. In Part 70, EPA requires only that a "permittee submitted
notice of the emergency" as one of the criteria in order to be eligible for
the affirmative defense of emergency.
The commission believes that its requirement for notification of reportable
upsets is equivalent to and may, in some cases, be more timely than Part 70
requires. Owners or operators of sources may notify the commission by phone,
in writing, by telefax, or through electronic data transfer within 24 hours,
which is twice as prompt as the Part 70 requirement to submit notice within
two working days. The commission believes that any of these methods provides
a verifiable method of notification and is consistent with Part 70. The commission
has developed the concept of reportable quantity based on a similar federal
concept under the Emergency Planning and Community Right-to-Know Act (EPCRA),
regarding when to report releases to any environmental media. Upsets that
result in emissions below a reportable quantity do not need to be reported
within 24 hours but must be recorded and reported in deviation reports and
are subject to the same exemption criteria as any upset. Permit holders are
required to make this information available upon request.
Comment
QLEP and 118 individuals commented that deviation reports should be submitted
within 48 hours of a violation and that the commission's rules allow a permit
holder to wait six months before reporting a violation to the commission.
NFN also commented that six months between reports about monitoring activities,
such as stack tests and inspections, is not prompt. Also, excess emissions
below the reportable quantity become a company's in-house records, which are
difficult for the public to obtain, impeding citizen enforcement action or
citizen questioning of exemptions for unreported excess emissions. In addition,
NFN stated that the commission's reports indicate a 50% decrease in reported
excess emissions from upset, maintenance, startup, and shutdown occurrences.
EEP also expressed concern that the proposed rules will allow polluters to
avoid reporting of violations for six months and that they see no reason why
these violations cannot and should not be reported within 48 hours of occurrence.
PC commented that upsets under the reportable quantity are not required to
be reported.
Response
The commission does not change the rule in response to these comments.
The commission adopted the concept of reportable quantity into the upset/maintenance
rules in 1997. While every upset must be recorded, those that exceed a certain
reportable quantity must be reported to the commission within 24 hours of
occurrence. This concept is patterned after a similar concept used in the
EPCRA and has resulted in a decrease in the number of 24-hour reports sent
to the commission. The reportable quantity concept allows the commission to
concentrate resources on those events most likely to affect the general public.
All upsets, regardless of size, are subject to the exemption criteria in §101.11.
The records of non-reportable upsets would be retained by the source owner
or operators and submitted to the commission every six months in accordance
with deviation reporting requirements, and must be made available to the commission
upon request. These events would be examined under the exemption requirements
of §101.11, and those failing to meet the requirements for exemption
will be subject to enforcement.
Comment
PC commented that the commission's rules allow facilities to report upset,
startup, shutdown, and maintenance under Chapter 101 rather than satisfy the
deviation reporting requirements in Chapter 122. Also, Chapter 101 does not
provide for compliance certifications. Chapter 122, to satisfy Part 70, should
be amended to clarify that upset emissions must be reported as deviations.
Response
The commission does not change the rule in response to this comment. Deviations,
as defined in Chapter 122, are any indications of noncompliance with the conditions
of a permit. The commission considers any unauthorized emissions resulting
from upset, start-up, shutdown, and maintenance to be deviations and requires
that they be included or referenced in any six- month deviation report submitted
to the commission under §122.145. As deviations, these reports of unauthorized
emissions are subject to the compliance certification requirements of §122.146,
Compliance Certification Terms and Conditions. Any deviations that do not
result in unauthorized emissions must also be recorded and submitted as deviations
under §122.145.
Comment
The EPA commented that the amnesty provisions set forth in SB 766, Section
12 (§12) poses impediments to the minimum enforcement and implementation
authorities that Texas must maintain in order to remain an approved operating
permit program under Part 70. The EPA is concerned that the amnesty provision
may surrender the commission's ability to assure compliance with applicable
requirements of the Clean Air Act at facilities subject to the Part 70 operating
permit program, by prohibiting the state from initiating an enforcement action
against a permit holder for certain preconstruction violations. The EPA is
calling upon Texas to address the concerns with amnesty in the Attorney General's
statement, as required by 40 CFR §70.4(b)(3). The opinion should also
evaluate and attest to the adequacy of the state's authority to carry out
all aspects of the program, specifically with respect to whether §12
restricts implementation and enforcement of the state program.
Response
Because EPA has requested an Attorney general's statement on the impact
of the amnesty provisions from SB 766, the commission does not believe it
is appropriate to provide a response to that issue in this adoption. The commission
has forwarded EPA's comments to the Attorney general's and anticipates submitting
a statement by the end of June, 2001.
Comment
BP suggested that the commission add a definition of affected state in §122.10
which is consistent with the language in §122.330.
Response
The commission does not change the rule in response to this comment. Section
122.330(b) specifies which states may be affected states, and §122.330(b)(1)
and (2), as proposed, specifies the criteria for an affected state as defined
in 40 CFR §70.2.
Comment
PC supports the inclusion of minor NSR as an applicable requirement and
recommended additional amendments to the definition of applicable requirement.
The definition should include all requirements that have been promulgated
or approved by the EPA through rulemaking at the time of issuance but have
future-effective compliance dates, as required by 40 CFR §70.2.
Response
The commission agrees and amends the definition of applicable requirement
in response to this comment. A statement concerning the inclusion of requirements
with future-effective dates appears in 40 CFR §70.2. It is currently
the commission's practice to include, in permits, requirements that have been
promulgated or approved by the EPA through rulemaking at the time of permit
issuance but which have future effective compliance dates. The commission
will continue this practice.
Comment
PC stated that the definition of applicable requirement should include
a broad statement that applicable requirements include "any standard or other
requirement provided for in the applicable implementation plan approved or
promulgated by the EPA through rulemaking under Title I of the Federal Clean
Air Act (FCAA) that implements the relevant requirements of the FCAA, including
any revisions to that plan." PC commented that the definition of applicable
requirement does not appear to include all provisions in the applicable SIP.
PC observed that Texas' rules may change before or without corresponding changes
in the SIP.
Response
The commission does not change the rule in response to this comment. The
commission currently includes in the definition of applicable requirement
those chapters and portions of chapters provided in the SIP that are relevant
to permit content. The definition of applicable requirement includes those
requirements that implement relevant requirements of the FCAA.
Comment
TCC supports the proposed minor NSR/Part 70 integration. TCC requested
that TNRCC take into consideration stakeholder resource limitations when developing
the implementation process. TCC suggested that the process be designed to
allow minor NSR authorizations to be effectively and efficiently incorporated
into the operating permit while providing the option to phase-out duplicative
NSR requirements. TXOGA envisions an approach that allows for elimination
of redundant and duplicative standards and provisions contained in NSR permits
from overlapping regulatory requirements. TXOGA explained that this approach
would result in a simple, more streamlined process. TCC and TXOGA proposed
that minor NSR permits be incorporated into FOPs by reference only. TCC proposed
that subsequent permit modifications or renewals go through stringency reviews
for the purpose of removing duplicative special conditions determined to be
redundant. TCC explained that this proposed process would "help filter out"
duplicative requirements in minor NSR permits that are also in Title V operating
permits. Similarly, ExxonMobil requested that the following sentence be added
to §122.142(b)(3): "Such preconstruction authorizations may be incorporated
into the Title V permit by reference."
Response
The commission does not change the rule in response to this comment. The
adopted rule requires the executive director to institute proceedings to reopen
permits for the incorporation of minor NSR. The commission agrees that this
incorporation could be done by simply including minor NSR permit numbers.
The executive director is in the process of identifying the most efficient
implementation method of eliminating duplicative, redundant, and/or contradicting
applicable requirements between minor NSR and FOPs consistent with federal
requirements. The commission will continue to work with the stakeholders in
the development of procedures for the incorporation of minor NSR.
Comment
BP commented that the incorporation of NSR into the operating permit program
should not result in additional permit fees.
Response
The incorporation of minor NSR into the operating permit program will not
cause an increase in application fees for NSR permitting.
Comment
The EPA commented that the commission has never submitted Chapter 106,
Subchapter A, General Requirements as a SIP revision and that it encourages
the commission to do so.
Response
In April 2001, the commission proposed amendments to Chapter 106, Permits
by Rule, for proposal and publication that address recordkeeping and what
types of maintenance emissions may be authorized under permit by rule. Chapter
106, Subchapter A will be submitted as a SIP revision after the conclusion
of that rulemaking.
Comment
PC recommended that the phrase "as found using, at a minimum, compliance
method data from monitoring, recordkeeping, reporting, or testing required
by the permit" be deleted from the definition of deviation. PC explained that
permit holders should be required to identify and report a deviation if they
have any evidence of a deviation. PC commented that Chapter 101 should clarify
that facilities may not use selective reporting to avoid reporting a deviation.
Facilities must not be allowed to monitor repeatedly until the results are
to their liking and report only the favorable results. Any monitoring or testing
performed by the facility that indicates a potential violation must be included
in the deviation report. PC argued that permit holders should not be allowed
to avoid reporting a deviation of which they are aware simply because the
deviation was not identified by the compliance method required by the permit.
PC agrees with the definition's introductory clause that a deviation is any
indication of noncompliance. PC explained that the compliance certification
rules can then require that certification be based on all reasonably available
credible evidence including compliance method data from monitoring, recordkeeping,
reporting, or testing required by the permit.
Response
In response to this comment, the commission adds rule language to the definition
of "deviation" and to §122.146(4) stating that the determination of a
deviation will not be limited to information obtained from required monitoring.
This language does not impose additional requirements but is added as a clarification.
The minimum compliance method data that must be used to identify deviations
is consistent with that identified in 40 CFR §70.6(c)(5) as necessary
for FOP compliance certifications. However, the definition of deviation does
not relieve a permit holder from considering any additional information to
identify a deviation. The commission already requires permit holders to consider
additional information to determine whether a deviation has occurred.
Comment
PC commented that the definition of emission unit appears to be more limited
than the federal definition. PC noted that the agency's definition includes
"a discrete or identifiable structure, device, item, equipment or enclosure"
but that the federal definition also includes an "activity." PC stated that
the commission should amend its rules to use the federal definition of emission
unit.
Response
The commission does not change the rule in response to this comment. The
regulatory and conventional concept of an emission unit has always been that
of a tangible item. This concept is codified in the commission's definition
of emission unit. Under Chapter 122, any tangible item housing an activity
that produces air pollutants is an emission unit. Thus, the commission's definition
of emission unit is substantially equivalent to that of the EPA's.
Comment
PC commented that the commission's rules should delete the definition of
final action, since it does not include all actions relating to operating
permits which may constitute final action by the commission. The definition
is unnecessary, creates confusion, and it should be left to the courts to
determine which agency actions constitute final action.
Response
The commission does not change the rule in response to this comment. The
term "final action" indicates the end of the executive director's review process
and that a permit has been issued or denied. Any subsequent action by either
the commission, the EPA, or the public is not included in this term.
Comment
PC commented that the definition of major source is impermissibly limited.
Section 122.10(14)(C)(xxvii) limits sources for which fugitives should be
counted in determining major source status.
Response
The commission does not change the rule in response to this comment. The
commission believes that Chapter 122 permissibly identifies sources for which
fugitive emissions must be considered in major source determinations in a
manner that is consistent with FCAA, §302(j) and with Part 71. The FCAA, §302(j)
specifies that in determining whether a source is major, fugitive emissions
are included when determined by rule by the administrator. Rulemaking for
FCAA, §302(j) was last done on August 7, 1980. Part 70 specifies that
fugitive emissions should not be considered in determining major source status
unless the source belongs to one of the source categories identified in 40
CFR §70.2, major source definition. The definition further enumerates
source categories for which fugitive emissions must be included in the major
source determination, including stationary source categories regulated by
a standard promulgated under FCAA, §111 or §112, but only with respect
to those air pollutants that have been regulated for that category. Title
40 CFR Part 71 (Part 71) sets forth the FOP program that would be implemented
by the EPA in a state without an approved operating permit program. In the
preamble for the Part 71 final rule, the EPA discussed the issue of the missing
reference to August 7, 1980, and acknowledged that "it did not follow the
procedural steps necessary under §302(j) to expand the scope of sources
in this category for which fugitives must be counted in Part 70 major source
determinations." Therefore, the EPA promulgated the final Part 71 is consistent
with FCAA, §302(j). The definition of major source in Part 71 specifies
that fugitive emissions must be counted for stationary source categories regulated
by a standard promulgated as of August 7, 1980, under FCAA, §111 or §112,
but only with respect to those air pollutants that have been regulated for
that category. The Chapter 122 definition of major source requires fugitive
emissions to be considered in determining a major source for any stationary
source category regulated under FCAA, §111 or §112 for which the
EPA has made an affirmative determination under FCAA, §302(j). Thus,
the definition of major source in Chapter 122 is consistent with the definition
of major source in Part 71, as well as FCAA, §302(j). Since the aforementioned
source categories are the only sources that would be required to count fugitive
emissions in the event that the EPA implements Part 71, it is the commission's
opinion that only these sources should be required to count fugitive emissions
in determining major source status for Chapter 122 and Part 70 applicability.
Although the EPA did not submit comments on this issue during the comment
period, it is the commission's understanding that the EPA concurs with this
analysis.
Comment
PC commented that §122.10(14)(E) limits the sources for which fugitive
emissions must be considered in determining the major source status of facilities
in nonattainment areas; Part 70 does not establish such limits.
Response
The commission does not change the rule in response to this comment. The
commission believes that §122.10(14)(E) is consistent with Part 70. Title
40 CFR §70.2, Major Source, (2) specifies that fugitive emissions of
a stationary source shall not be considered in determining whether it is a
major stationary source unless the source belongs to one of the specified
source categories. Since 40 CFR §70.2, Major Source, (2) specifies the
inclusion of fugitive emissions for any air pollutant, the specified source
categories are also the only source categories required to include fugitive
emissions under 40 CFR §70.2, Major Source, (3), which defines major
stationary sources in nonattainment areas. Therefore, the commission believes
that §122.10(14)(E) is consistent with the definition of major source
in 40 CFR 70.2.
Comment
PC commented that §122.10(14)(F) allows facilities to calculate potential
to emit without including emissions from temporary sources. PC also commented
that §122.204(c), Temporary Sources should be deleted. The commission
cannot exempt temporary source calculations from a site's potential to emit.
Response
The commission does not change the rule in response to this comment. The
commission did not propose amendments to §122.204; therefore, under Texas
administrative law, the section cannot be amended at this adoption. Sections
122.10(14)(F) and 122.204(c) specify that temporary sources located at a site
for less than six months would not affect a major source determination. If
a temporary source remains at a site for more than six months, the emissions
must be included in the potential to emit and any applicable requirements
must be included in the operating permit.
Comment
PC commented that the commission's rules do not include a definition of
fugitive emissions and suggested incorporating the definition contained in
40 CFR §70.2.
Response
The commission does not change the rule in response to this comment. The
commission does not believe that it is necessary to include a definition of
fugitive emissions in Chapter 122 since Chapter 101 defines fugitive emission
as any gaseous or particulate contaminant entering the atmosphere which could
not reasonably pass through a stack, chimney, vent, or other functionally
equivalent opening designed to direct or control its flow. This is consistent
with Part 70 which states that fugitive emissions are those emissions which
could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent
opening.
Comment
PC questioned why the applicability of Chapter 122 is based on the eligibility
of a deferral rather than an actual deferral. PC requested that the phrase
"no longer eligible for a deferral" contained in §122.120(a)(4) be replaced
with the phrase "no longer deferred." PC explained that their request would
clarify §122.120(a)(4) and make it consistent with Part 70. BP commented
that the commission should clarify in §122.120(a)(4) the types of deferrals
which relieve the operator from the obligation to obtain a permit. PC questioned
the necessity and appropriateness of §122.120(b). PC stated that it is
unclear what sites or types of sites will fall under this exemption that are
not already subject to §122.120(a). PC added that an exemption for individual
sites is not allowed under Part 70.
Response
The rule was not changed in response to this comment. The EPA has granted
permitting authorities the discretion to defer Title V operating permitting
requirements until December 9, 2004, for area sources of air pollution that
are subject to certain regulations (64 FR 69637). Based on the deferral in
that rulemaking those area sources are not required to obtain operating permits.
Therefore, those sources are eligible for deferral of a Title V permit; however,
the EPA may at some future date determine that those sources are no longer
eligible for deferral. The commission's text makes clear that, should that
occur, those sources must obtain an operating permit. Section 122.120(b) is
intended to help owners and operators correctly apply Chapter 122. The commission
cannot anticipate what types of sites would be eligible for deferral.
Comment
PC commented that §122.120(b) is written too broadly. PC explained
that owners or operators of sites which may qualify for exemption or deferral
from the requirements of Chapter 122 are not themselves exempt from the Chapter
122 requirements. PC continued that those persons may own or operate multiple
sites, some of which, are not exempt.
Response
The commission agrees with PC's comment and deletes the phrase "owners
and operators of one or more of the" from §122.120(b).
Comment
PC commented that §122.122(e), Potential to Emit allows facilities
to keep on site the registration limiting its potential to emit. If a registration
is not submitted to the commission, the limits would not be practically enforceable,
as is required by the EPA's 1996 document "Effective Limits on Potential to
Emit."
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
The commission agrees that a registration limiting a site's potential to emit
must be practically enforceable, but that certified registrations kept onsite
meet this requirement. The §122.10 potential to emit definition specifies
that "any certified registration or preconstruction authorization restricting
emissions ...shall be treated as part of its design if the limitation is enforceable
by the EPA." The EPA, in 40 CFR §52.21(b)(17), defines federally enforceable
as "all limitations and conditions which are enforceable by the administrator,
including those...requirements within any applicable SIP." Since the commission
submitted §122.122 for incorporation into the SIP, the commission considers
limits established under §122.122 to be federally enforceable. Further, §122.122
specifies that certified registration of emissions and records demonstrating
compliance with the registration must be kept on-site, or at an accessible
location, and shall, upon request, be provided to the commission or any air
pollution control agency having jurisdiction. The commission does not believe
that a certified registration of emissions must be submitted in order to be
practically enforceable, since the owner or operator must make the registration
and any supporting documentation available during an inspection.
Comment
PC was supportive of the discontinuation of the phased permit process in §122.131.
Response
The commission agrees that the phased permit process should not be an option
for new applications and appreciates the comment.
Comment
PC commented that §122.130 and §122.132(c) are inconsistent with
40 CFR §70.5(c) by allowing applicants to submit abbreviated initial
applications and that this procedure does not allow the public to gather the
necessary information to participate in operating permit proceedings. Complete
applications are not due unless requested by the executive director, hence,
applications may not contain emissions information, applicable requirements,
or compliance information. Therefore, abbreviated initial applications should
be eliminated from the commission's rules. PC also made similar comments on §122.502(a),
Authorization to Operate, which was not proposed for amendment and allows
the owner or operator to submit an abbreviated application, which is insufficient
to comply with the 40 CFR §70.6(d)(2) and FCAA, §7661b. NFN also
expressed concern that abbreviated initial applications would impair the commission's
access to full information and the public's right to participate in the permit
review.
Response
The commission does not change the rule in response to this comment. Section
122.132(c) states that an applicant may submit an abbreviated application
and that the executive director shall inform the applicant in writing of the
deadline for submitting the remaining information. The executive director
requires a full application for every operating permit action. The remaining
information required for a full application is itemized in §122.132(e),
including applicable requirements for each emission unit and a compliance
plan. The commission uses abbreviated applications primarily to identify major
sources and they were the basis for the subsequent schedule developed to require
applicants to submit full applications.
When initially implementing the program, the commission required abbreviated
applications to be submitted for all permitting actions. This required an
abbreviated application for every site to be submitted. The executive director
did not, however, intend to begin the technical permit review on all applications
at the time each application was submitted. Allowing owners and operators
to submit abbreviated applications enabled the executive director to develop
the full application submittal schedule without requiring the applicant to
continually update and certify the detailed application information prior
to the technical review of the permit. Once all information has been submitted,
the executive director performs a technical review and develops a draft permit,
which will be made available for comment during the public notice period,
along with the full permit application. The application process described
here also assists interested persons since their review of the applications
would not be done on outdated application information. Further, interested
persons would not have to track the submittal of outdated application information.
Comment
PC commented that §122.132(e) does not require an application to include
all of the information required by 40 CFR §70.5(c), that the rules themselves
need to specify the required application content and that it is not sufficient
that the applicable form developed by the agency may contain the information
required. Chapter 122 should be amended to require applications to include
1.) identifying information, including company name and address, owner's name
and agent, and telephone number and names of plant site manager or contact;
2.) a description of the source's processes and products, including any associated
with alternate scenarios identified by the source; 3.) all emissions of pollutants
for which the source is major, and all emissions of regulated air pollutants,
including a description of all emissions of regulated air pollutants emitted
from any emission unit, except where such units are exempted; 4.) identification
and description of all points of emissions in sufficient detail to establish
the basis for fees and applicability of requirements; 5.) emissions rate in
tons per year and in such terms as are necessary to establish compliance consistent
with the applicable standard reference test method; 6.) fuels, fuel use, raw
materials, production rates and operating schedules to the extent they are
necessary to determine or regulate emissions; 7.) identification and description
of all pollution control equipment and compliance monitoring devices or activities;
8.) limitations on source operation affecting emissions or any work practice
standards, where applicable for all regulated pollutants at the source; 9.)
other information required by any applicable requirement, including information
related to stack height limitations developed pursuant to FCAA, §123;
10.) calculations on which emissions related information is based; 11.) an
explanation of any proposed exemptions from otherwise applicable requirements;
and 12.) additional information as necessary to define alternative operating
scenarios identified by the source or to define permit terms and conditions.
PC also commented that the general permit application should be required to
include information regarding emissions. NFN also commented that Chapter 122
should be amended to specify that applications include a detailed explanation
of how facilities qualify for exemptions and documentation to support that
explanation. The detailed explanation should include a precise listing of
how the facility complies with each of the requirements of the exemption;
an answer of "none" to a question is not adequate. The facility should also
be required to certify in its annual compliance certification whether or not
it continues to meet each requirement for an exemption. Certifications for
exempt status would decrease the likelihood of false claims since they carry
the consequence of personal liability.
Response
The commission does not change the rule in response to this comment. The
commission agrees that Chapter 122 must specify the required application content,
however, 40 CFR §70.5(c) states that the permitting authority may use
discretion in developing application forms that best meet program needs and
administrative efficiency and that the forms and attachments shall include
the elements identified in Part 70. The commission believes that the rule
and the forms developed for the program meet the requirements of 40 CFR §70.5(c).
If necessary, §122.136 enables the executive director to request emission
calculation information. Specific emissions information is contained in NSR
permits and Emissions Inventory reports, as required by §101.10. Because
that information is already available, the duplication of that information
in operating permit application forms is not necessary. Additionally, the
commission does not require fee information in operating permit applications
because major sources annually report emission inventories on which fees are
assessed.
The commission believes that it requires sufficient information to determine
applicability of specific requirements. The commission uses application forms
that require applicants to provide the basis for establishing why a facility
is not subject to a given requirement. For example, some regulations do not
require facilities below certain sizes to comply with the regulations and,
in all cases, the applicant is required to identify the regulatory citation
that excludes the facility from the regulation. All application information
is required to be certified by the responsible official. The certification
establishes that the submitted information is true, accurate and complete.
The certification to whether or not a facility meets an exemption is only
required when the application is submitted. If the status of an emission unit
has changed and the unit is no longer exempt from an applicable requirement,
the permit holder must seek the appropriate revision to the FOP, which would
include a compliance certification. Once the permit is revised, the permit
holder must certify compliance with the applicable requirement annually and
this would include certifying that a unit is in compliance with its applicable
requirements. When permit holders certify compliance status, they are also
certifying that a unit's applicability has not changed, and that they continue
to be exempt.
Comment
PC commented that §122.132(e)(4)(C)(iii) be amended for consistency
with 40 CFR §70.5(c)(8)(iii)(C). Compliance schedules for out of compliance
sources should include an enforceable sequence of actions with milestones
and a statement that any compliance schedule is supplemental to, and does
not sanction noncompliance with, the applicable requirements.
Response
The commission changes the rule in response to this comment. The commission
agrees that §122.132(e)(4)(C)(iii) should be amended to specify that
any such schedule of compliance shall be supplemental to, and shall not sanction
noncompliance with, the applicable requirements on which it is based for consistency
with 40 CFR §70.5(c)(8)(iii)(C). The commission does not believe that
Chapter 122 requires an amendment to specify that compliance plans include
an enforceable sequence of actions with milestones because this information
is already required by §122.132(e)(4)(C)(ii) and (iv). Section 122.132(e)(4)(C)(ii)
states that a compliance plan for any emission unit not in compliance with
applicable requirements shall include a narrative description of how the emission
unit will come into compliance with all applicable requirements. Further, §122.132(e)(4)(C)(iv)
specifies the compliance plan include a schedule for the submission, at least
every six months after issuance of the permit, of certified progress reports.
Section 122.142(e)(2), specifies that a permit shall contain a requirement
to submit progress reports, which include the dates for achieving the activities,
milestones, or compliance required in the compliance schedule and the dates
that these were achieved or an explanation of why the dates were not or will
not be met and any preventative or corrective measures adopted.
Comment
EEP commented that if a facility is out of compliance with applicable requirements,
the permit must include a compliance plan and that compliance certifications
are required both at the time that a permit application is submitted and on
an annual bases. Sierra noted the importance of compliance certifications
and monitoring, recordkeeping and reporting that are added to permits. In
the past, many of these requirements were not spelled out in the permits and
the information was not easily accessible. Title V is very powerful program
for ensuring that these facilities are going to be in compliance with all
of these various requirements if all these requirements are going to be in
the permit.
Response
The commission does not change the rule in response to this comment. The
commission agrees that the operating permits program provides a number of
effective enforcement tools. Under the current program, an application is
required to contain a compliance plan. Compliance certifications are required
for permit applications and on an annual basis for permits. Section 122.142(e)
specifies that permits shall contain a compliance schedule for units not in
compliance with the applicable requirements at the time of initial permit
issuance or renewal. As previously stated, progress reports are required every
six months. Section 122.132(e)(4) states that an application shall include
a compliance plan and §122.132(e)(9) requires applications to include
a certification by the responsible official. Further, §122.146(1) specifies
that the permit shall contain a term and condition to specify that the permit
holder is required to certify compliance with the terms and conditions of
the permit for at least each 12-month period following initial permit issuance.
Also, new §122.143(15), formerly §122.143(16), requires any report
or annual compliance certification to contain a certification by the responsible
official.
Comment
BP commented that the commission should add the following sentence to §122.132(e)(11):
"Applications submitted prior to July 2000 shall be updated to include minor
NSR permit at permit renewal." Similarly, TXOGA suggested that the following
phrase be added to §122.132(e)(11): "except that for applications submitted
prior to July, 2000, updates to the applications for this information is not
required until permit renewal." TXOGA explained that an amendment to §122.132(e)(11)
is necessary so that applications already submitted are not immediately out
of compliance upon the effective date of this rule.
Response
Based on negotiations with the EPA regarding its comments regarding the
timing of minor NSR incorporation, §122.132(e)(11) is revised to state
that applications for which the executive director has not authorized initiation
of public notice by the effective date of this rule must include preconstruction
authorizations.
Comment
PC commented on §122.132(g). Title 40 CFR §70.5(c) requires an
application to include a list of insignificant activities and also that the
commission needs to specify that the information omitted from the application
under de minimis may not include information needed to determine the applicability
of or to impose any applicable requirement or to evaluate the fee amount.
Response
The commission changes the rule in response to this comment. The EPA noted
in the June 7, 1995
Federal Register
, with
regard to the insignificant activities list, that "the design and approach
the state uses to keep activities out of the operating permit application
is considered practical and equivalent to Part 70. This design attains the
same results as a list of insignificant activities or emissions thresholds
for units. The EPA believes the procedures set forth in the Texas permit regulation
to identify insignificant activities achieves the goal and intent of the Part
70 regulations and therefore is consistent and acceptable." (60 FR 30040).
In response to the comment about de minimis activities, the commission
clarifies in §122.132(g) that sources identified as de minimis under
Chapter 116 do not have to be included in the application for determining
Chapter 116 applicability, but such units would need to be included if they
are needed to determine the applicability of any other applicable requirement.
A de minimis unit under Chapter 116 is not subject to Chapter 116, but that
does not automatically make it a unit that may be listed as an insignificant
activity under Part 70. Fees are addressed in §101.27, Emission Fees,
and §122.132(g) does not change how emission fees are to be calculated.
Comment
PC commented on §122.134 and stated that an application for a permit
should not be considered complete unless the application contains all of the
information required by 40 CFR §70.5(c).
Response
The commission does not change the rule in response to this comment. The
commission believes that §122.134 is consistent with 40 CFR §70.5(a)(2)
which specifies that the program shall provide criteria and procedures for
determining when applications are complete and also specifies that applications
shall be deemed to be complete within 60 days unless the permitting authority
determines that an application is not complete.
Comment
TCC requested that the section header for §122.136 be changed from
"Application Deficiencies" to "Application Deficiencies and Supplemental Information."
TCC explained that their suggested header accurately describes the intent
of the section. Similarly, TXOGA commented that §122.136 should be retitled
"Duty to Supplement or Correct Application," since much of the section outlines
requirements for supplemental information not constituting an application
deficiency.
Response
The commission agrees with TCC and TXOGA and changes the title of §122.136
to "Application Deficiencies and Supplemental Information."
Comment
TCC and TXOGA commented that additional text should be added to §122.136(c)
to specify that additional information to address requirements that become
subject to a site after application submittal is not required to be submitted
before the commission begins the permit technical review, upon request, the
applicant will submit the necessary information within 60 days, and that additional
time for information submittal is at the discretion of the executive director.
BP supported this and added that the revision is needed to avoid continual
revisions to the permit application. TXOGA suggested additional language be
added to §122.136(c) to specify that information not yet submitted under §122.131,
Phased Permit Detail, need not be submitted except in accordance with the
schedule associated with the phase-in of that information.
Response
The commission agrees with this comment and amends §122.136(c) to
specify that additional information is not required to be submitted before
the executive director's technical permit review period. This is consistent
with 40 CFR §70.5(b) which specifies that an applicant shall provide
additional information as necessary to address any requirements that become
applicable to the source after the date it filed a complete application but
prior to the release of a draft permit. The amendment will allow the applicant
to submit the needed application information in a timely manner without requiring
multiple updates of application information until the commencement of the
technical review, and will assist the executive director and interested parties
since they will not be reviewing application information that is out of date.
This amendment will also address TXOGA's concern in that each portion of a
phased permit has an associated technical permit review. Therefore, additional
information to address requirements that become applicable will not be required
to be submitted before the technical permit review of each phased permit.
Comment
TIP, BP, ExxonMobil, TCC, and TXOGA indicated that §122.140(3) contained
a typographical error. The word "respectfully" should be replaced by the word
"respectively."
Response
The commission agrees with this comment and amends §122.140(3) by
replacing the word "respectfully" with "respectively."
Comment
TCC suggested that the phrase "application for an authorization to operate"
be removed from §122.142(b)(3) because it is already stated in §122.132(e)(11).
BP made the same request and explained that application requirements should
not be addressed in a section titled "Permit Content." TXOGA, ExxonMobil and
TIP commented in a similar fashion. TIP requested that §122.142(b)(3)
be revised to clarify that the preconstruction authorizations will only be
incorporated into Title V permits in accordance with §122.231(c) for
those sites that submitted applications prior to the effective date of this
rule change. Similarly, TXOGA suggested that the following sentence be added
to §122.142(b)(3): "Effective at the renewal of the initial permit, each
permit shall contain any preconstruction authorization that is applicable
to the emission units at the site." TXOGA reasoned that their suggested sentence
would preclude permits or applications from being out of compliance upon promulgation
of this rule.
Response
The commission agrees with the comments and deletes the phrase "or permit
application for an authorization to operate" from §122.142(b)(3). In
addition, the commission clarifies that preconstruction authorizations are
incorporated into operating permits as specified in §122.231(c).
Comment
TIP expressed concern about the level of detail currently required in operating
permits and that detailed citation requirements greatly increase the paperwork
and processing burden associated with initial permit issuance and permit revisions
for both the regulated community and the commission staff with no corresponding
environmental benefit. Further, §122.142(b)(2)(B) goes beyond the intent
of Part 70 and the Title V program. By removing the specific, detailed regulatory
citations from operating permits, the commission can produce permits that
serve as more useful tools for the regulated community, the public, the EPA
and the commission, without compromising any person's ability to identify
or to enforce the applicable requirements at a site. TIP and TCC requested
that the commission address the issue of detailed citation requirements in
the preamble and assure the regulated community that another rule opening
will take place to propose amendments to §122.142(b)(2)(B) to reduce
the level of detail required in operating permits. ExxonMobil also requested
that the commission address the issue in the preamble and expressed concern
that the rule language in §122.142(b)(2)(B) as currently written could
result in more stringent interpretations than is the intent of Part 70. TIP,
ExxonMobil, and TCC recommended the deletion of the words "detailed" and "specific"
from §122.142(b)(2)(B) and (B)(i). BP supported TCC's suggestion concerning
detailed citation requirements and added that permits should be streamlined
by removing unnecessary detail. TXOGA supported the above amendment to §122.142(b)(2)(B)
and stated that their intent was to submit comments to make the rule as flexible
and workable as possible, while maintaining the Part 70 Operating Permits
requirements and that the efforts and resources expended by both the commission
and the regulated community should be reasonable and meaningful. TXOGA expressed
their emphasis on the reduction of paperwork and processing burden associated
with the program. Even requirements for minor permit revisions will be unduly
burdensome and expensive, with no corresponding environmental benefit. This
can be remedied by reducing the reliance on specific, detailed regulatory
citations for each and every requirement and by implementing a more descriptive
approach which will require less paperwork and less revision process. All
parties, including the commission and EPA inspectors, site operators and the
public will find such a tool much more useful in maintaining and understanding
current, accurate regulatory requirements for the site. The suggested changes
to §122.142(b)(2)(B) are consistent with Part 70 language and will not
diminish the ability to identify or enforce all specific requirements for
emission units at a site.
Response
The commission does not change the rule in response to this comment but
is currently involved in meetings with all stakeholders, including the EPA,
to address level of detail issues. Chapter 122 currently provides the flexibility
for the commission to structure the level of detail in operating permits in
a manner that provides for compliance with Part 70 and also serves as a useful
compliance tool for the commission, the regulated community and the public.
The commission will continue its work with all stakeholders to arrive at a
level of detail that provides enforceability but eliminates unnecessary permit
detail and associated permit revisions. Whether the solution is through another
rule opening to propose amendments to Chapter 122 or through a procedural
process change has yet to be determined.
Comment
PC commented that §122.142(b)(2)(B)(i) should require a permit to
include emission limitations and standards, including those operational requirements
and limitations that assure compliance with all applicable requirements at
the time of permit issuance. PC referenced 40 CFR §70.6(a)(1).
Response
The commission does not change the rule in response to this comment. Section
122.142(b)(2)(B)(i), although not a word-for-word reiteration of 40 CFR §70.6(a)(1),
is consistent with its provisions. Section 122.142(b)(2)(B)(i) requires each
permit to contain the specific regulatory citations for each applicable requirement
identifying the emission limitations and standards. In this manner, each permit
includes emission limitations and standards and operational requirements.
Comment
PC commented that §122.142(b)(2)(B)(ii) should require that each permit
include testing, monitoring, reporting and recordkeeping requirements sufficient
to assure compliance with the terms and conditions of the permit, for consistency
with 40 CFR §70.6(c)(1). This requirement is independent of CAM or periodic
monitoring requirements. PC also commented that reports of monitoring data
should include monitoring required by an applicable requirement as well as
monitoring required by the operating permit itself. Therefore, §122.145(1)(A)
should be amended to specify that reports of monitoring data required to be
submitted by an applicable requirement or by a provision of the permit, shall
be submitted to the executive director. In addition, monitoring reports must
be required to clearly identify deviations. This is consistent with 40 CFR §70.6(a)(3)(iii)(A).
Response
The commission changes the rule in response to these comments. The commission
believes that §122.142(b)(2)(B)(ii), as written, meets the requirements
of 40 CFR §70.6(c)(1) which does not require an independent monitoring
program but rather refers back to the requirements of 40 CFR §70.6(a)(3)
for periodic monitoring and CAM. Some monitoring is required by the underlying
applicable requirements. If the applicable requirement does not contain monitoring,
then periodic monitoring is required, and CAM may apply. However, amending
these sections clarifies that reports must address monitoring covered by an
applicable requirement, and the definition of applicable requirement includes
CAM or periodic monitoring as required by the permit.
Comment
TIP requested that §122.142(b)(3) be amended to allow preconstruction
authorizations to be incorporated into operating permits by reference.
Response
The commission does not change the rule in response to this comment. Section
122.142(b)(3) was added in response to an inconsistency identified by the
EPA to ensure that NSR authorizations will be included in the permit content
requirements of Chapter 122. As a part of the implementation process for the
inclusion of preconstruction authorizations in operating permits, one option
is to incorporate by reference. The commission does not believe it is necessary
to specify in the rule how preconstruction authorizations will be included
in operating permits.
Comment
PC commented that §122.142(c) is inconsistent with 40 CFR§70.6(a)(3)(i)(B)
in that the executive director has discretion to implement periodic monitoring.
The citation should be deleted and replaced with text that is consistent with
40 CFR §70.6(a)(3)(i)(B).
Response
The commission does not change the rule in response to this comment. Title
40 CFR §70.6(a)(3)(i)(B) requires that where the applicable requirement
does not require periodic testing or instrumental or non-instrumental monitoring
(which may consist of recordkeeping designed to serve as monitoring), the
permit must contain periodic monitoring sufficient to yield reliable data
from the relevant time period that are representative of an emission unit's
compliance with the permit. In the rulemaking completed in 2000, the commission
amended §122.142(c) so that it tracks the language in 40 CFR §70.6(a)(3)(i)(B).
However, §122.142(c) does specify that permits contain periodic monitoring
as required by the executive director. The executive director makes a determination
of what periodic monitoring requirements are needed at initial permit issuance.
The executive director has reviewed all applicable requirements to determine
which requirements contained no monitoring. The executive director, working
with the EPA, developed acceptable procedures and appropriate monitoring requirements
to satisfy the Part 70 periodic monitoring provisions. These requirements
are included in initially issued permits. The EPA is agreeable to phasing
in the remainder of the needed periodic monitoring requirements. The executive
director called in full applications based on Standard Industrial Classification
(SIC) codes. CAM and periodic monitoring GOPs are being developed and phased
in according to this call-in schedule. Therefore, the commission can ensure
that adequate and appropriate CAM and periodic monitoring are available when
needed for incorporation into permits.
Comment
PC commented that §122.142(e)(1) is not consistent with 40 CFR §70.6(c)(3).
Each emission unit not in compliance with an applicable requirement at permit
issuance must include a compliance schedule and it is not sufficient for the
permit to include a reference to a compliance schedule. The compliance schedule
should be a clearly enforceable condition in the permit.
Response
The commission does not change the rule in response to this comment. Including
compliance plans by reference does not affect the enforceability of such compliance
plan. All terms and conditions in the permit are enforceable by the commission,
including those incorporated by reference.
Comment
PC commented that the phrase "unless otherwise specified in the permit"
be deleted from §122.143 and §122.144; §122.145, and §122.146.
Part 70 requires the items listed in these sections to be included in permits.
Response
The commission does not change the rule in response to this comment. The
phrase gives the executive director the authority to include site specific
conditions when needed. For example, more frequent deviation reporting may
be included as a part of a compliance plan.
Comment
PC recommended amendments to §122.143(4) to be consistent with 40
CFR §70.6(a)(6)(i), to specify that any noncompliance with the terms
and conditions of the permit or the provisional terms and conditions is grounds
for enforcement action, for permit termination, revocation and reissuance,
or modification, or for denial of a permit renewal application.
Response
The commission agrees with this comment and revises the rule to make it
consistent with 40 CFR §70.6(a)(6)(i).
Comment
PC commented that §122.143(8) be amended to be consistent with 40
CFR §70.6(a)(6)(v) by adding the language, " Upon request, the permittee
shall also furnish to the permitting authority copies of records required
to be kept by the permit or, for information claimed to be confidential, the
permittee may furnish such records directly to the Administrator along with
a claim of confidentiality." Information required to be kept pursuant to a
permit is public information and should be accessible to the public, upon
request, through the commission.
Response
The commission agrees to amend §122.143(8) to be consistent with 40
CFR §70.6(a)(6)(v) regarding submitting records required to be kept by
the permit. The commission does not agree that information claimed to be confidential
should be sent directly to the EPA administrator because it could adversely
affect the commission's ability to assure compliance with Chapter 122. The
commission agrees that public information should be accessible to the public
as prescribed under Texas Government Code, Title 5, Chapter 552, regarding
public information and exceptions from required disclosure and THSC, §382.041
regarding confidential information. In addition, on April 14, 2000, the commission
and the EPA entered into a memorandum of agreement regarding the transmission
of confidential information to the EPA and in which the EPA agrees to adhere
to the provisions of §382.041 and federal law regarding claims of confidentiality.
Comment
PC commented that the word "relevant" and the phrase "which are deemed
necessary to characterize emission rates" be deleted from §122.144(1)(F)
to be consistent with 40 CFR §70.6(a)(3)(iii).
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
The commission may consider this change for future rulemaking. Chapter 122
requires the records to reflect the operating conditions that existed at the
time of sampling or measurement.
Comment
PC commented on §122.145(2)(B). The rules require submission of a
deviation report once every six months. Part 70 requires prompt deviation
reporting. For many deviations, reporting once every six months is prompt.
Response
The commission agrees with this comment and, therefore, makes no change
to the rule. Generally, the commission agrees that for many deviations six-month
reporting is prompt; however, many instances may warrant more frequent deviation
reports.
Comment
PC commented on §122.145(2)(B) in that a deviation report should be
required even if no deviations have occurred, to state that there have been
no deviations. Otherwise, it is impossible for the commission or the public
to know whether a facility has had no deviations or simply has failed to submit
the required deviation report until the annual compliance report is submitted.
Response
The commission does not change the rule in response to this comment. The
commission believes that reporting should be kept to the minimum needed to
demonstrate compliance with commission rules. In this case, the commission
will interpret the absence of a report to indicate no deviations occurred
during the reporting period. All permit holders are required to submit an
annual compliance certification report in which they certify that, with the
exception of the information attached in the deviation table, all emission
units were in continual compliance. If there were deviations, they would be
noted in the annual compliance certification.
Comment
Sierra noted an additional loophole in the language in the compliance certifications
that allow a facility to avoid having to admit noncompliance. Citizens have
big concerns about upsets, which would be one source of excess emissions where
the compliance certifications would allow facilities and the responsible official
to basically avoid indicating that they are in noncompliance or exceeding
some limitation.
Response
The commission does not change the rule in response to this comment. All
deviations must be reported, including those resulting from an upset. In addition,
permit holders are required to state if compliance was continuous or intermittent.
Comment
The commission proposed the deletion of §122.145(2)(D). ExxonMobil,
TCC and TOGA recommended that the commission keep the citation, with amendments,
and recommended the deletion of §122.145(3) because it requires a permit
holder to submit redundant upset and maintenance reports already specified
by Chapter 101. TIP supported this and further clarified that this will better
achieve the commission's goal of eliminating redundant provisions from Chapter
122. The current §122.145(2)(D) prevents duplication of reports by allowing
permit holders to reference upset or maintenance reports in a deviation report.
Section 122.145(3), however, is redundant as it merely restates a permit holder's
obligation to report upset or maintenance activities under Chapter 101. BP
pointed out that §122.145(2)(D) explains the relationship between deviation
reporting and the reporting required in Chapter 101 and that a deviation may
or may not be an upset and vice versa. However, if a deviation were an upset,
then they would request that any reporting requirements of Chapter 101 be
sufficient to satisfy any deviation reporting requirements under Chapter 122.
Therefore, the commission should either address reporting equivalency in the
preamble or add a new §122.145(D) specifying if a deviation is reported
and that deviation is an upset per Chapter 101, then the deviation report
need only reference the unauthorized emissions, upset or maintenance and start-up
and shutdown report containing the details related to the deviation.
Response
The commission changes the rule in response to these comments. After reviewing
the comments, the commission believes that §122.145(2)(D) should be retained
but with amendments. Because all upsets, regardless of the size, are deviations
under Part 70, they must be included in the six-month deviation report. The
commission amends §122.145(2)(D) to state that reports submitted under
the upset and maintenance rules of Chapter 101 do not substitute for reporting
deviations under §122.145(2). The commission will continue to allow owners
or operators to reference in six-month deviation reports any reports submitted
under Chapter 101 during the reporting period. Guidance on reporting is available
through the commission's regional offices and internet site. The commission
agrees that §122.145(3) simply restates existing requirements and deletes
that subsection in the adopted rule.
Comment
PC commented that §122.145(3) states that reports of deviations resulting
from upset, maintenance, startup, or shutdown are to be submitted in accordance
with Chapter 101, which does not require a certification by the responsible
official. Chapter 101 also does not require reporting of these emissions which
are below the reportable quantity and should be clarified to specify how these
types of emissions below the reportable quantity be reported. There should
also be a clear requirement that these type of emissions comply with all Part
70 deviation reporting requirements.
Response
The commission does not change the rule in response to this comment. As
previously discussed, the commission is deleting §122.145(3). However,
any upset regardless of the amount of emissions resulting from it must be
included in a six-month deviation report and is subject to the same certification
requirements as any deviation report. An upset reported under §101.6
need only be referenced in the deviation report. Those upsets resulting in
emissions that need not be reported under §101.6 must appear in the six-month
deviation report with all information as required by Part 70.
Comment
BP commented on §122.146. They suggested that the commission use available
information/format of the CAM/PM programs, for example, to simplify the requirement
for annual compliance certifications to identify whether the methods used
to certify compliance for each emission unit are continuous or intermittent.
Response
The commission does not change the rule in response to this comment. Section
122.146(5)(A) specifies that the annual compliance certification must include
or reference the term or condition for which compliance is being certified,
the method used for determining compliance, and whether the method provides
continuous or intermittent data. This information is contained in the periodic
monitoring or CAM GOP and could be referenced for the annual compliance certification.
However, the permit holder is still required to state whether the emission
units were in continuous compliance.
Comment
PC commented that the EPA is not receiving compliance certifications pursuant
to §122.146(2), as is required by 40 CFR §70.6(c)(5)(iv). These
documents were supposed to have been available on-line, but are not, and it
is, therefore, impossible for the EPA to perform its required oversight. Operating
permits should include a requirements that the permit holder submit compliance
certifications to the commission and the EPA, as is required by Part 70.
Response
The commission changes the rule in response to this comment. The commission
amends §122.146(2) to specify that the permit holder must submit a copy
of the certification to the EPA administrator. The commission is unaware of
any situation for which the EPA has not been able to perform its required
oversight functions.
Comment
PC commented that the commission's compliance certification rules limit
the evidence that a facility must consider when determining compliance, facilities
should not be exempt from reporting a violation because it was discovered
through some method other than monitoring required by the permit, and that
the information required in §122.146(4) is insufficient to ensure that
facilities are reporting all known compliance due to the narrow definition
of deviation. PC commented that the compliance status of a facility, as determined
by §122.132(e)(4)(B), should not be determined solely by "any compliance
method specified in the applicable requirements". PC explained that this excludes
testing, reporting, recordkeeping and monitoring requirements added to the
permit to satisfy the periodic monitoring and compliance assurance monitoring
requirements in Part 70. PC stated that the compliance status should be based
upon all information available as required by EPA regulations. PC expressed
that responsible officials with information that a facility is not in compliance
with an applicable requirement must state that the facility is out of compliance
and asserted that the commission's regulations should make this requirement
clear.
Response
The commission changes the rule in response to this comment. The commission
adds clarification to §122.132(e)(4)(B) and §122.146(4) to specify
that the determination of compliance status will be based on, at a minimum,
but not be limited to, compliance methods specified in the applicable requirements.
The commission also revises the definition of deviation.
Comment
PC commented that the compliance certification form is inconsistent with
EPA and TNRCC rules.
Response
The commission does not change the rule in response to this comment. The
commission acknowledges that the form does not require a list of applicable
requirements or a description of the method used for determining compliance
for all instances. Instead, the form requires this information for all deviations,
and it must certify that the company was in continuous compliance with all
terms and conditions in the permit, except for the identified deviations.
The form will also be revised to address Part 70 revisions to require certification
of intermittent compliance. The commission believes that its form requires
all appropriate information.
Comment
TCC commented that the annual compliance certification information required
in §122.146(5) for each emission unit could be overly burdensome, especially
for larger sites. TCC also stated that the information on the method used
for determining the compliance status of each emission unit and whether such
method provides continuous or intermittent data will already be contained
in a CAM or periodic monitoring GOP and that the commission should clarify
that these references can be used to meet §122.146(5).
Response
The commission does not change the rule in response to this comment because §122.146(5)
already allows reference to terms and conditions of the permit, which includes
CAM or periodic monitoring GOPs. Section 122.146(5) is consistent with 40
CFR §70.6(c)(5)(iii) which specifies prescriptive compliance certification
information.
Comment
PC commented that 40 CFR §70.6(c)(5)(iii) requires the compliance
certification to include the information listed under §122.146(5). The
commission should delete the statement in §122.146(5) that the compliance
certification could reference the information, since it is not clear how any
referenced information would be subject to the required certification by responsible
official.
Response
The commission does not change the rule in response to this comment. Title
40 CFR §70.6(c)(5)(iii) specifies that the compliance certification should
include the information required in 40 CFR §70.6(c)(5)(iii)(A) - (D).
The identification of applicable information may be done by cross-referencing
the permit or previous reports, as appropriate. The Permit Compliance Certification
Form allows a permit holder to reference previously submitted deviation reports,
thus the referenced information is subject to the required certification by
the responsible official.
Comment
PC commented that §122.146(5)(A) is inconsistent with 40 CFR §70.6(c)(5)(3)(B),
which specifies that the compliance certification should include a statement
indicating whether the compliance methods used for certification provide continuous
or intermittent data.
Response
The commission agrees with the comment. The language recommended by PC
was added to Chapter 122 in the proposal package published in the January
26, 2001 issue of the
Texas Register
. The
commission adopts the language in this rulemaking.
Comment
PC commented on §122.148(b), Permit Shield. All information required
by 40 CFR §70.6 should be submitted in an application before the agency
makes a determination regarding qualification for a permit shield.
Response
Section 122.148 was not proposed for amendment by the commission; therefore,
under Texas administrative law, the section cannot be amended to incorporate
the suggested comments at this adoption. However, the commission believes
that §122.148(b) does require sufficient information because it requires
compliance with §122.132(e)(2), (3), and (8). These subsections require
the submission of information regarding general applicability determinations
and specific regulatory citations. Title 40 CFR §70.6(f), which specifies
the requirements for permit shields, does not specify that all information
required by 40 CFR §70.6 be submitted in an application before the executive
director makes a permit shield determination.
Comment
PC commented that §122.148(c) is extremely confusing and should be
amended to clearly track the requirements of 40 CFR §70.6(f) regarding
permit shields and 40 CFR §70.6(a)(3)(A) regarding streamlining. Also,
the source of the commission's authority to grant a permit shield for state-only
requirements is unclear. Such authority should be identified or state-only
provisions should be deleted from the rule.
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
However, the §122.148 permit shield requirements are consistent with
Part 70. Section 70.6(f)(1)(ii) allows permitting authorities to determine
that certain requirements are not applicable to a source. Section 122.148(c)
refers to this "negative applicability determination" as "potentially applicable
requirements." Section 122.148(c)(2) is consistent with 40 CFR §70.6(f)(1)
because it specifies that the permitting authority may include a provision
in operating permits stating that compliance with the conditions of the permit
shall be deemed in compliance with any applicable requirements, or in the
case of Chapter 122, potentially applicable requirements. Additionally, §122.148(c)(1)(B)
enables the executive director to perform stringency determinations to eliminate
duplicative, redundant and/or contradicting requirements. This is consistent
with 40 CFR §70.6(a)(3)(i)(A), which states that the permit may specify
a streamlined set of monitoring or testing provisions if more than one requirement
applies. Although Part 70 does not require the inclusion of state-only requirements,
the commission chose to include such requirements in permits to provide a
more complete enforcement tool. The commission has the authority to establish
rule requirements to provide for compliance with all rules and regulations.
Comment
PC commented on §122.148(c)(1)(A). Chapter 122 should clarify that
a negative applicability shield must include a written determination, or concise
summary thereof, explaining the agency's determination that the listed requirements
are not applicable to the specified emission unit.
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
If a permit shield is requested and approved, the executive director includes
a permit shield section in the operating permit that provides a basis for
the permit shield determination. The commission believes this meets the 40
CFR §70.6(f)(1)(ii) permit shield requirements.
Comment
PC commented that §122.148(e) should be deleted since permit shield
modifications should follow revision or reopening procedures. PC also commented
that a statement should be added to §122.148(f) and §122.210(c)
to specify that minor permit revisions are not eligible for a permit shield
pursuant to 40 CFR §70.7(e)(2)(vi). Also, a statement should be added
that administrative revisions are not eligible for a permit shield, except
for those cases that are specified in 40 CFR §70.4(d)(4).
Response
The commission revises §122.219 in response to this comment. However, §122.148
was not proposed for amendment by the commission; therefore, under Texas administrative
law, the section cannot be amended to incorporate the suggested comments at
this adoption. For consistency with 40 CFR §70.7(e)(2)(vi), the commission
specifies in §122.219 that a change to a permit shield must follow significant
permit revision procedures. This is consistent with the previous requirements
of §122.219(9). In addition, when the executive director determines that
a permit shield must be amended to assure compliance with the applicable requirements,
the permit will be reopened as required by §122.231. Section 70.4(d)(4)
only applies to permit shield revisions for permits issued under an interim
program. The operating permits issued under the interim program did not contain
a permit shield for minor NSR because it was not an applicable requirement.
Comment
PC commented that a provision should be added to §122.161, Miscellaneous,
stating that the commission shall not grant an emergency order excusing violations
of operating permits.
Response
Section 122.161 was not proposed for amendment by the commission; therefore,
under Texas administrative law, the section cannot be amended to incorporate
the suggested comments at this adoption. Under TWC, §5.501, the commission
may issue emergency orders to temporarily suspend or amend a permit condition.
This action would only be taken to protect public safety or welfare, and the
specific conditions causing the issuance of the order cannot be predicted.
The order does not excuse violations of operating permits but would only temporarily
suspend the conditions.
Comment
PC commented on §122.165(a). The list of documents that require a
signed certification of accuracy and completeness should specifically include
deviation reports and upset, maintenance, startup and shutdown reports.
Response
Section 122.165 was not proposed for amendment by the commission; therefore,
under Texas administrative law, the section cannot be amended to incorporate
the suggested comments at this adoption. The commission does not agree with
this comment because deviation reports are required by the permit and, therefore,
are required to be certified in accordance with §122.165(a)(7). A deviation
report should include all unauthorized upset, maintenance, start- up, and
shutdown emissions or make reference to them.
Comment
PC commented that §122.201(a), Initial Permit Issuance, should be
amended to be consistent with 40 CFR §70.7(a)(5) which requires the commission
to provide a statement that sets forth the legal and factual basis for the
draft permit conditions (including references to applicable statutes or regulatory
provisions) to the EPA and any other persons who request it. The commission's
rules should be amended to require the preparation of such a statement prior
to the beginning of the public comment period.
Response
The commission does not change the rule in response to this comment. The
executive director does not prepare a specific "statement of basis" for each
permit, but rather has implemented this Part 70 provision by developing a
permit that states a regulatory citation for each applicable requirement.
The commission is unaware of any self-implementing statutory requirements
that do not have parallel regulatory provisions. These permit conditions are
based on the application and the technical review which includes a site inspection.
The commission believes including this detail in the permits meets the requirements
of Part 70 for including a statement of basis.
Comment
PC commented on §122.201(a)(1). A permit or a draft permit for public
review should not be issued before the executive director has received a complete
application containing all of the requirements in 40 CFR §70.5.
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
However, the commission would like to clarify that a draft permit is not made
available for public notice nor is a permit issued until the executive director
has requested, received, and completed a technical review of an application
that contains the requirements in §122.132(a) and (e), except for phased
permits which comply with the requirements contained in §122.131. As
previously stated, the commission believes that §122.132 is consistent
with the requirements contained in 40 CFR §70.5(c).
Comment
PC commented that §122.201(a)(2) is inconsistent with 40 CFR §70.7(a)(1)(iv).
It should be amended to specify that the conditions of the permit provide
for compliance with all applicable requirements and the requirements of Chapter
122. PC commented that §122.217(f)(3) should be amended to specify that
the conditions of the permit provide for compliance with all applicable requirements
and the requirements of Chapter 122, for consistency with 40 CFR §70.7(a)(1)(iv).
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
The commission may consider this comment for future rulemaking. However, §122.201(a)(2)
requires any permit issued under Chapter 122 to provide for compliance with
all conditions of Chapter 122. Chapter 122 requires that all applicable requirements
be codified in FOPs. Therefore, compliance with all conditions of Chapter
122 includes compliance with all applicable requirements.
Comment
PC commented on §122.201(c). Title 40 CFR §70.7(a)(1)(v) requires
that the EPA has received a copy of the permit application and any notices
before the permit may be issued and it is not sufficient for the commission's
rules to provide that the permits are accessible to the EPA. These copies
must be submitted to the EPA, even if they are only sent electronically.
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
The EPA commented on the requirement, appearing throughout the October 1997
rulemaking, that information be submitted to the EPA upon written request.
The EPA requested that the rule instead require the information to be made
accessible by electronic means. To accommodate this request, the commission
currently provides the EPA electronic access to application and permit information.
Comment
PC commented that the phrase, "unless the executive director allows for
a shorter period due to an emergency," be deleted from §122.204(f) because
40 CFR §70.6(e) does not provide for exceptions to the requirement that
temporary sources notify the state ten days in advance of a change in location.
Response
The commission did not propose amendments to this section; therefore, under
Texas administrative law, the section cannot be amended at this adoption.
The commission believes that the emergency provision in §122.204(f) will
be used infrequently and is a reasonable procedure.
Comment
PC commented that §122.204(h) be added, consistent with 40 CFR §70.6(e),
to require that permits for temporary sources include conditions that will
assure compliance with all applicable requirements at all authorized locations.
Response The commission did not propose amendments to this section; therefore,
under Texas administrative law, the section cannot be amended at this adoption.
A change in location does not relieve the temporary source from the obligation
to have a permit that assures compliance with all applicable requirements.
The commission does not believe that such an addition would be necessary since §122.204(b)
requires that an owner or operator of any temporary source apply for a permit
consistent with Chapter 122.
Comment
BP and TCC requested that the commission
specifically define the changes at a site which alter or change the applicable
requirements contained in the permit as stated in §122.210(a).
Response
After reviewing the comment, the commission is not adopting the proposed
revisions to §122.210(a). The commission has defined criteria for changes
which would be administrative, minor, and significant revisions.
Comment
PC commented that §122.210(b) be amended to specify that permit applications
and notices be provided to the EPA to be consistent with 40 CFR §70.7(a)(1)(v)
and (d)(3)(ii). The commission should provide a copy to the EPA rather than
just make the documents accessible to the EPA.
Response
The commission does not change the rule in response to this comment. In
the adoption preamble to the October 1997 Chapter 122 rulemaking, the EPA
commented on the requirement appearing throughout the rule that information
be submitted to the EPA. In response to this comment, the commission amended
the rule to specify that information will be made accessible to the EPA.
Comment
PC commented that §122.211(4) should require that the written agreement
containing a specific date for transfer of permit responsibility, coverage,
and liability between the current and new permit holder be submitted to the
commission to be consistent with 40 CFR §70.7(d)(iv). PC commented identically
on §122.503(a), Application Revisions for Changes at a Site.
Response
The commission does not change the rule in response to this comment. Part
70 does require the submission of a written agreement. However, the commission
does not believe it is necessary or appropriate to require an entire agreement
to be submitted since such documents may be large and contain extraneous information.
The commission can easily access this information, since it will be kept with
the permit, and the permit holder must still provide information regarding
the transfer as part of the application. Section 122.211(4) and 122.503(a)(3)
require that this information be maintained with the permit at the site which
makes it available to the commission when needed.
Comment
PC commented that the meaning of §122.211(5) is unclear. BP and TXOGA
concurred with §122.211(5) because it allows the incorporation of the
requirements from preconstruction authorizations as an administrative permit
revision.
Response
The commission does not change the rule in response to this comment. The
commission proposed and is adopting §122.211(5), which is consistent
with 40 CFR §70.7(d)(1)(v), to provide flexibility in the future to incorporate
specified preconstruction review requirements into operating permits. Section
122.211(5) specifically states that the incorporation of preconstruction authorization
requirements is an administrative revision provided that the program meets
procedural requirements substantially equivalent to those of Chapter 122,
Subchapters C and D, and compliance requirements substantially equivalent
to those contained in §§122.143, 122.145, and 122.146. The commission
may initiate a separate rulemaking to establish an option for enhanced NSR
procedures to allow an administrative permit revision to be used to incorporate
changes requiring minor NSR authorizations.
Comment
TXOGA requested clarification that new federal or state regulations which
have undergone public comment and participation and for which there are also
no changes at the site fall within the description of §122.211(7) in
that they are similar and, if EPA-approved, are therefore administrative revisions.
Response
The commission does not change the rule in response to this comment. The
type of change mentioned by TXOGA does not meet the criteria in §122.211(7)
because the change is not similar to the changes in §122.211(1) - (6).
Comment
TCC requested that the commission clarify that changes to an operating
permit resulting from the renumbering of citations in a regulation is an administrative
permit revision. BP commented that the commission clarify in the preamble
that administrative changes in regulatory language (renumbering, rule citations,
or the like) are not, in and of themselves, applicable requirements triggering
a permit revision.
Response
The commission does not change the rule in response to this comment. However, §122.211(7)
affords the EPA the opportunity to approve similar changes. Any EPA- approved
type of administrative revision will be posted to the Air Permits web page
and included in updated revision guidance.
Comment
PC commented that §122.212 and §122.213(a) and (d) appear to
authorize changes at a site that would require an administrative permit revision
to be operated before an administrative permit revision application is submitted,
which is inconsistent with 40 CFR §70.7(d)(3)(iii).
Response
The commission does not change the rule in response to this comment. Part
70 does require an application for an administrative permit revision to be
submitted prior to operating the change. However, the commission believes
that the use of provisional terms and conditions coupled with the recordkeeping
requirement and the fact that the sources must always be in compliance with
the applicable requirements and provisional terms and conditions justifies
this insignificant variation from Part 70.
Comment
TCC suggested that the commission delete §122.213(a)(1)(A) - (C) to
be consistent with Part 70. Part 70 only specifies that sources may implement
the changes as requested in the administrative permit revision immediately
after submittal, but makes no reference regarding the applicable requirements
contained in §122.213(a)(1)(A) - (C). TIP and ExxonMobil supported this
but commented that the entire §122.213(a)(1) be eliminated to make the
administrative permit revision procedures consistent with Part 70. Furthermore,
read literally, §122.213(a)(1) would not allow a permit holder to proceed
with an administrative revision at the site if any emission unit at the site
is not in compliance with an applicable requirement, state only requirement
or provisional term or condition. This was not the intent of the Title V program
and is inconsistent with Part 70. Typographical errors were also identified
in the existing §122.213(a)(2) and (3). TXOGA supported TIP comment and
added that §122.213(a) was not a Part 70 requirement and is not pertinent
to the types of revisions that are administrative in nature.
Response
The commission agrees with these commenters and deletes §122.213(a)(1).
The requirements contained in §122.213(a)(1)(A) - (C) are not required
by Part 70.
Comment
PC stated that it was supportive of Chapter 122 amendments that were adopted
in the October 1997 rulemaking, including the elimination of "off-permit"
changes formerly contained in §122.215, the requirement in §122.132(e)(4)(C)(iii)
specifying that compliance schedules be at least as stringent as that contained
in any judicial consent decree or administrative order, and the elimination
of the "interpretation shield" from §122.145(e).
Response
The commission appreciates the comment.
Comment
TIP, ExxonMobil, and TCC requested clarification in the preamble that the
deletion of "off- permit" changes does not limit a permit holder's ability
to make changes to sources that qualify for the Off-Permit Application Sources
and Activities (OPASA) list. BP supported this and suggested clarification
in the preamble that "off-permit" changes are not the same as the OPASA list.
Response
The commission does not change the rule in response to these comments.
The commission agrees that "off-permit" changes and sources that qualify for
the Off-Permit Application Sources and Activities (OPASA) list are different.
Also, the deletion of "off-permit" in the October 1997 Chapter 122 rulemaking
does not limit a permit holder's ability to make changes to sources that qualify
for the OPASA list.
Comment
BP and TCC requested clarification for the type of permit revisions that
would be required for major NSR/PSD, minor NSR, permits by rule, and newly
promulgated requirements. Further, at a minimum, revisions related to changes
which are minor NSR revisions within Chapter 106 and Chapter 116 should be
minor operating permit revisions. Changes that trigger Federal NSR and PSD
requirements should require significant operating permit revisions. TCC further
commented that the incorporation of newly promulgated requirements which:
1.) do not require a change at the site should be administrative operating
permit revisions; and 2.) do require a change at the site should be minor
revisions. BP commented that the incorporation of new rule requirements, like
a new MACT requirement, should be handled as an administrative permit revision.
For example, MACT standards pursuant to §112(g) or (j) that have already
undergone public notice should be included in the permit as an administrative
revision. BP commented that the revision process must be clear, concise, and
must not unduly hinder operators from conducting their business. Part 70 language
is vague and is subject to interpretation by the commission. BP also commented
that minor permit revisions should continue to be the default revision type,
since large, complex facilities will likely be required to constantly revise
operating permits if significant revisions are the default revision type.
TXOGA also commented that a greater number of significant changes will render
the program unworkable. BP suggests that incorporation of new rule requirements
be typically handled as administrative permit revisions unless the change
triggers PSD/major NSR permitting actions. ExxonMobil commented that the operating
permit process should be reasonable and meaningful. Significant revisions
should reflect changes associated with PSD and Major NSR; changes associated
with minor NSR and standard permits should be minor revisions; and changes
qualifying for a permit by rule or a rule renumbering should be administrative
revisions.
Response
Based on negotiations with EPA regarding its comments pertaining to the
incorporation of minor NSR, actions authorizing new facilities through minor
NSR permits and amendments will be considered off-permit changes, as specified
in §122.222, when no other applicable requirements in the permit are
affected. If rules are revised to include the option for enhanced NSR procedures,
the following activities will be considered administrative revisions: 1) new
or modified facilities under permits by rule or standard permits and 2) facilities
authorized to be modified through minor NSR permits or amendments. NSR activities
such as address changes are currently administrative permit revisions. Minor
NSR permits involving major PSD or nonattainment netting will be considered
minor permit revisions. PSD, nonattainment NSR, FCAA §112(g) or (j),
and significant changes to monitoring will be considered significant revisions.
In the preamble to the proposed Part 70, EPA stated in Footnote 6 what
it believed to be a Title I modification. EPA concluded that a Title I modification
would include a modification under §111, §112(g) and (j), PSD and
nonattainment permitting. (56 FR 21712, 21747). In the July 1, 1996
Changes to qualified facilities under §116.116(e) or changes to facilities
covered under a flexible permit under Chapter 116, Subchapter G that are not
considered an amendment under Chapter 116 and that do not add or remove an
operating permit applicable requirement are not envisioned to be a change
subject to any revision process under Chapter 122, when the operating permit
contains §116.116(e) and/or §116.710(a) as an applicable requirement.
Permit holders must ensure that operating permits contain all potential operating
scenarios that may be needed for the flexible permit or changes to qualified
facilities to avoid unnecessary operating permit revisions. In addition, the
operational flexibility provisions contained in §122.222 allow the removal
of a unit from the site without requiring a permit revision when the applicable
requirements for any other unit remaining in operation at a site are not affected.
Newly promulgated regulations that add new applicable requirements will
be incorporated in a permit under the reopening process contained in §122.231
or the renewal process. The commission does not believe that the incorporation
of new rule requirements, such as a MACT, meets the criteria under 40 CFR §70.7(d)(1)(v)
because this clause is specifically limited to preconstruction review permits.
Comment
TXOGA requested clarification as to the threshold at which changes at a
site are minor. The intent of Part 70 for changes to be significant under
FCAA, Title I appears to be the definition of modification under Title I.
Therefore, all revisions related to changes which are minor NSR revisions
within Chapter 106 or Chapter 116 should be minor revisions and all changes
at a site which trigger federal NSR and PSD requirements should be significant.
At a minimum, changes are minor which fall under the thresholds of 40 CFR §70.7(e)(3).
TXOGA requested that the commission establish an alternative threshold as
allowed in §70.7(3) at the level of major versus minor NSR.
Response
The commission does not change the rule in response to this comment. The
commission believes that adding a threshold at which changes at a site are
minor is inconsistent with Part 70 which requires that any case-by-case determination
be a significant revision and thus would not qualify for a revision under
40 CFR §70.7(3). As discussed previously, the commission agrees that
changes under Chapters 106 and 116 that do not involve a case-by-case determination
can be minor permit revisions.
Comment
The EPA commented that the commission proposes to submit §§122.215
- 122.218 as a revision to the SIP to satisfy 40 CFR §70.7(e)(2)(i)(B),
which provides that minor permit modification procedures may be used for permit
modifications involving the use of economic incentives, marketable permits,
emissions trading, and other similar approaches, to the extent that such minor
permit modification procedures are explicitly provided for in an applicable
SIP or in applicable requirements promulgated by the EPA. The EPA pointed
out that §§122.215 - 122.218 only address the process for using
minor permit modification procedures and do not include the SIP requirements
to implement requirements involving the use of economic incentives, marketable
permits, emissions trading, and other similar approaches. Those regulations
must be part of the SIP before minor permit revision procedures can be used
to include these items in operating permits. Approval of §§122.215
- 122.218 alone do not satisfy 40 CFR §70.7(e)(2)(i)(B).
Response
The commission adopted Chapter 101, Subchapter H, Emissions Banking and
Trading, and submitted it as a SIP revision. It is the rules contained in
Chapter 101, Subchapter H to which §122.218 refers.
Comment
PC commented that §122.215(2) should be amended to specify that a
minor permit revision does not involve significant changes to, or relaxation
of, existing monitoring, reporting, or recordkeeping requirements in the permit,
for consistency with 40 CFR §70.7(e)(4). PC also commented that §122.219
be amended to specify that every significant change in existing monitoring
permit terms or conditions and every relaxation of reporting or recordkeeping
permit terms or conditions shall be considered significant, for consistency
with 40 CFR §70.7(e)(4).
Response
The commission changes the rule in response to this comment. Consistent
with 40 CFR §70.7(e)(4), the commission adopts a new §122.219(b)
to specify that, at a minimum, every significant change in existing monitoring
permit terms or conditions and every relaxation of reporting or recordkeeping
permit terms or conditions shall be considered significant. The commission
also clarifies under what conditions it is not a significant revision to remove
existing monitoring, reporting, or recordkeeping for a unit removed from the
site. In new §122.222(b, the commission clarifies that removing a unit
from the site that does not otherwise change another unit's applicable requirements
can be removed through operational flexibility. Lastly, the commission wishes
to clarify that §122.215(2) is consistent with 40 CFR §70.7(e)(i)(2)
and remains unchanged.
Comment
PC commented that a new §122.216(6) should be added to require minor
permit revision applications to include the emissions resulting from the change
and any new applicable requirements that will apply if a change occurs, for
consistency with 40 CFR §70.7(e)(2)(ii)(A).
Response
The commission agrees with the comment and adds new §122.216(6) to
require minor permit revision applications to include the emissions resulting
from the change. This is consistent with 40 CFR §70.7(e)(2)(ii)(A). The
incorporation of minor NSR will include any emissions resulting from a change.
In addition, Chapter 122 currently requires that minor permit revision applications
include any new applicable requirements that will apply if a change occurs.
Section 122.216(3) specifies that an application for a minor permit revision
include provisional terms and conditions that codify the new applicable requirements.
The concept of provisional terms and conditions is consistent with 40 CFR §70.7(e)(2)(v).
Comment
PC commented that a new §122.216(7) should be added to require minor
permit revision applications to include completed forms for the permitting
authority to use to notify the EPA administrator and affected states, for
consistency with 40 CFR §70.7(e)(2)(ii)(D).
Response
The commission does not change the rule in response to this comment. The
commission implements a practical and appropriate process to notify the EPA
and affected states of minor permit revision applications. This includes electronically
accessible information, recommended by the EPA in its comments on the October
1997 Chapter 122 rulemaking. The commission proposed amendments to §122.217(e)
to specify that the executive director notify the EPA and affected states
of requested minor permit revision applications, consistent with 40 CFR §70.7(e)(2)(iii).
In addition, §122.330(c) and (d) requires the executive director to notify
affected states of minor permit revisions and provides the opportunity for
affected states to comment. The commission, therefore, considers it unnecessary
for permit holders to complete forms for the executive director to use to
notify the EPA and affected states of minor permit revisions.
Comment
TCC commented that §122.217(a)(1)(A) - (C) and (b)(1)(A) - (C) imply
that the permit holder is required to be in compliance with every applicable
requirement for every emission unit at the site in order to implement the
change for a minor permit revision. The citations should be amended to specify
that the permit holder complies with applicable requirements, state only requirements
and provisional terms and conditions governing the change. TXOGA supported
the suggested amendment. TIP and ExxonMobil also supported this and further
added that their suggestion would be consistent with 40 CFR §70.7(e)(2)(v).
BP suggested using the phrase, "concerning the change."
Response
The commission agrees with the comment and amends §122.217(a)(1)(A)
- (C) and (b)(1)(A) - (C) to specify that the permit holder must comply with
applicable requirements, state only requirements, and provisional terms and
conditions governing the change. This is consistent with 40 CFR §70.7(e)(2)(v),
which specifies that a site may operate a change after submitting a minor
permit revision application and must comply with both the applicable requirements
governing the change and the proposed permit terms and conditions.
Comment
TXOGA requested verification that §122.217(b) refers to newly promulgated
rule requirements which cause a change at the site. Part 70 does not contemplate
new rule requirements causing a minor revision where no change was required
at the site. New requirements that are simply promulgated but do not require
any change at the site meet the criteria for administrative permit revisions.
Response
The commission changes the rule in response to this comment. The commission
deletes the language in §122.217(b) that relates to changes to a permit
required as the result of the promulgation or adoption of an applicable requirement.
This language should have been deleted in the Chapter 122 proposal because
it is inconsistent with Part 70 and other amended sections of Chapter 122.
Even if no change at the site is required, the incorporation of newly promulgated
or adopted applicable requirements could result in an administrative permit
revision, a significant permit revision, or a permit reopening depending on
the requirements of the new applicable requirement.
Comment
BP commented that §122.217(b)(2) should be revised to retain the 45-day
period for information submittal.
Response
The commission believes that incorporating this comment would be inconsistent
with Part 70. Title 40 CFR §70.7(e)(2)(v) allows a source to make a change
qualifying for a minor permit revision immediately after an application is
filed. Because a site is required to be in compliance by the compliance date
of a requirement, any appropriate changes must be in place. Therefore, the
application, including provisional permit terms and conditions, must be submitted
prior to making the change contemplated by the revision.
Comment
PC commented that §122.217(e) should be amended to state that the
executive director shall promptly notify the EPA and affected states of any
refusal to accept all recommendations that the affected state submitted during
the public or affected state review period, for consistency with 40 CFR §70.8(b)(2).
Response
The commission does not incorporate this comment in the rule because the
requirement is already addressed in §122.330(e).
Comment
PC commented that §122.217(f)(3) should be amended to specify that
the conditions of the permit provide for compliance with all applicable requirements
and the requirements of Chapter 122 for consistency with 40 CFR §70.7(a)(1)(iv).
Response
The commission does not change the rule in response to this comment. Section
122.217(f)(3) requires any permit issued under Chapter 122 to provide for
compliance with all conditions of Chapter 122. Chapter 122 requires all applicable
requirements to be codified in FOPs. Therefore, compliance with all conditions
of Chapter 122 includes compliance with all applicable requirements.
Comment
TCC was supportive of the commission's proposed §122.218, making permit
revisions involving the use of economic incentives, marketable permits, and
emissions trading minor permit revisions. TXOGA was also supportive, but also
requested clarification that only changes in the requirements of these programs
are revisions to the permit and that any individual trade or use of an emission
credit within an approved program is not a revision to the permit. PC requested
clarification of the types of changes that can qualify for minor permit revision
under §122.218, involving economic incentives, marketable permits, or
other similar approaches.
Response
The commission does not change the rule in response to this comment. Part
70 specifies that any revisions involving the use of economic incentives,
marketable permits, and emissions trading qualify as a minor permit revision.
The commission does not believe that Part 70 requires that each trade or use
of an emission credit under Chapter 101, Subchapter H result in a minor revision
because Chapter 101 specifies how and when each emission credit may be traded
or used. Chapter 101, Subchapter H is included in the definition of applicable
requirement. If a permit revision was necessary every time a trade was made,
the flexibility provided by such programs would be reduced.
Comment
PC commented that §122.221(b)(3) should be amended to specify that
the conditions of the permit provide for compliance with all applicable requirements
for consistency with 40 CFR §70.7(a)(1)(iv).
Response
Section 122.221(b)(2) requires any permit issued under Chapter 122 to provide
for compliance with all conditions of Chapter 122. Chapter 122 requires all
applicable requirements be codified in FOPs. Therefore, compliance with all
conditions of Chapter 122 includes compliance with all applicable requirements.
Comment
BP supported the incorporation of operational flexibility.
Response
The commission appreciates the comment.
Comment
PC commented that §122.222 appears to allow changes that contravene
an express permit term without a permit revision and that these changes will
not be subject to review by the public, affected states, the EPA, or even
the executive director. Also, these changes will not be incorporated into
the permit until renewal, which may be longer than five years, depending on
the pace of renewal application processing. Therefore, the commission should
define and limit the types of changes allowed under §122.222. Section
122.222(3) states that the change may not exceed emission limits in the permit,
but it does not address the type of emissions. PC questioned whether a new
pollutant could be emitted under this section that is not addressed by the
permit, whether a permit holder could make changes that would require different
control technologies under §122.222, whether any changes in monitoring,
recordkeeping, reporting or compliance certification would be allowed under
this section, whether changes made under this section would be subject to
annual compliance certification or deviation reporting, and whether Chapter
122 would specifically list any change that could occur under §122.222
and the commission should provide an opportunity for the public and the EPA
to comment on the list.
Response
The Chapter 122 operational flexibility provisions are consistent with
the Part 70 definition of "§502(b)(10) changes" and the provisions of
40 CFR §70.4(b)(12)(i). The commission includes this amendment in response
to an EPA comment noting that Chapter 122 must be revised to include the Part
70 provisions for operational flexibility. The rule as adopted defines the
criteria for changes that meet the conditions for operational flexibility.
Part 70 does not require the changes for operational flexibility to be incorporated
into permits at renewal, but only requires the notice to be attached to the
permit. An attempt to further define these changes in the rule may unnecessarily
limit those changes that would otherwise qualify under the criteria set forth
by Part 70, which does not require the state to list or further define operational
flexibility in their implementing rule. The commission will develop guidance
and seek input from interested parties concerning the implementation of operational
flexibility provisions.
Comment
The EPA commented that §122.222(a)(4) may conflict with §122.222(a)(1).
Many preconstruction authorizations are also Title I modifications. Therefore, §122.222(a)(4)
could be inconsistent with §122.222(a)(1) and with 40 CFR §70.4(b)(12)
which exclude Title I modifications. The commission should clarify which types
of preconstruction authorizations would not be Title I modifications and §122.222(a)(4)
should be revised to clarify that it does not include preconstruction authorizations
which are also Title I modifications.
Response
The commission agrees with this comment and changes §122.222(a)(4)
to specify that such preconstruction authorization cannot be a Title I modification.
The commission also agrees that clarification is needed for the types of preconstruction
authorizations that are Title I modifications. In the July 1, 1996
Federal Register
promulgating the 40 CFR Part 71 rule (61 FR 34202),
the EPA discussed the status of the definition of Title I modification. The
EPA stated that it "is not yet prepared to adopt a final definition for the
term, in implementing the Phase I, Part 71 program {and} EPA will treat the
issue consistently with the approach the Agency has advised states to take
under the current Part 70 regulation. Consequently, it will not consider Title
I modifications to include changes subject to state minor NSR programs." (61
FR 34213). As discussed previously, the commission believes that the only
actions that are Title I modifications are modifications under §111, §112(g)
and (j), PSD and nonattainment permitting.
Comment
The EPA commented that, although a time frame for written notification
to the executive director is specified, §122.222 does not set a time
frame for written notice to the EPA. Title 40 CFR §70.4(b)(12) specifies
that written notification be submitted to the state and the EPA.
Response
The commission agrees with this comment and changes §122.222(c) to
specify that written notification must also be submitted to the EPA on the
same schedule as to the executive director.
Comment
The EPA commented that §122.222 does not include the provisions in
40 CFR §70.4(b)(12)(iii), a requirement that the state program must include
in order to receive full program approval.
Response
The commission agrees with this comment and adds new §122.222(e) to
specify the requirements in 40 CFR §70.4(b)(12)(iii). The commission
also adds new §122.222(d) to incorporate the operational flexibility
requirements in 40 CFR §70.4(b)(12)(ii).
Comment
TIP requests amendments to §122.222(b) that will allow operational
flexibility changes with less than seven days advance notice, provided that
the commission determines that the shorter advance notice is merited due to
an emergency situation. This is consistent with 40 CFR §70.4(b)(12).
Response
In response to this comment, the commission adopts changes to §122.222(c)
to specify that notice may be provided to the commission within two working
days of the implementation of operational flexibility changes due to an emergency.
Such notice shall also include an explanation of the emergency. For clarification
the commission amends §122.222(c) to specify that written notice must
be submitted to the commission and EPA at least seven days in advance of the
proposed change, except for an emergency.
Comment
The EPA commented that §122.231 must be amended to comply with 40
CFR §70.7(f)(2). The commission proposed to amend §122.231 to require
the commission to institute proceedings to reopen permits to incorporate minor
NSR no later than renewal of the permit. The commission also clarified in
the preamble that the time frame will somewhat correspond with the renewal
date of a permit. Thus, the commission will not incorporate minor NSR into
some permits for up to five years. The EPA finds this unacceptable and states
that 40 CFR §70.7(f)(2) requires that all reopenings for new applicable
requirements be completed within 18 months after promulgation of applicable
requirements. PC agreed with the EPA. Operating permits should be reopened,
within 18 months to add minor NSR requirements, as specified in 40 CFR §70.7(f)(1)(i).
Likewise, the proposed amendment to §122.231(d) should not be made.
Response
The commission does not change the rule in response to this comment. The
commission acknowledges that minor NSR will have to be incorporated over a
period of time and thus will institute proceedings to reopen permits in accordance
with 40 CFR §70.4(d)(3)(ii)(D). The majority of the permits issued thus
far have been authorizations to operate under GOPs. However, the commission
anticipates that the majority of permit holders operating under a GOP (almost
900) will apply for the executive director issued GOPs by October 26, 2001.
These GOPs by rules are required to be renewed by October 26, 2001. Because
of the extensive changes to the applicable requirements in every GOP, the
commission is not renewing the GOPs by rule. Instead, the executive director
will issue new GOPs which will include minor NSR. The executive director will
institute proceedings to reopen previously approved authorizations to operate.
Each owner or operator authorized to operate under a GOP by rule will be required
to apply for a new authorization to operate under the executive director issued
GOP or submit an application for a site operating permit (SOP).
The EPA raises two issues in its comments concerning the incorporation
of minor NSR permits into operating permits. First, the EPA states that 40
CFR §70.7(f)(2) requires all reopenings for new applicable requirements
to be completed within 18 months after promulgation of applicable requirements.
Since minor NSR will be a new applicable requirement, §122.231 must be
revised to comply with §70.7(f)(2). {The 18-month requirement is actually
in 40 CFR §70.7(f)(1)(i)}. Second, the EPA notes that the June 20, 1996
Minor NSR is not a new applicable requirement subject to 40 CFR §70.7(f)(1)(i).
The FCAA, §502(b)(9) provides that permitting authorities "in the case
of permits with a term of three or more years for major sources, shall require
revisions to the permit to incorporate applicable standards and regulations
promulgated under this Act after the issuance of such permit. Such revisions
shall occur as expeditiously as practicable and consistent with the procedures
established under paragraph (6) but not later than 18 months after the promulgation
of such standards and regulations." In order to give meaning to the provision
in FCAA, §502(b)(9), the assumption must be that Congress anticipated
situations where new applicable standards and regulations would be promulgated
(Blacks Law Dictionary defines "promulgate" as "to publish; to announce officially;
to make public as important or obligatory. The formal act of announcing a
statute or rule of court.") after the operating permit was already issued.
In the preamble to the proposed Part 70 at 56 FR 21745 (May 10, 1991),
the EPA stated that it "believes that §502(b)(9) should be read to require
that the permitting authority reopen permits for major sources with three
or more years remaining in the permit's life...to incorporate standards and
regulations promulgated under the Act which are promulgated after the issuance
of such a permit." In the preamble for the final Part 70 at 57 FR 32256 (July
21, 1992), the EPA stated that "any approvable program, at a minimum, must
require that the permitting authority will revise all major source permits
with a remaining life of three or more years to incorporate applicable requirements
under the Act that are promulgated after the issuance of the permits. Such
revisions must be made using the revision procedures that meet the requirements
for permit revision and must be made within 18 months after the promulgation
of the new requirement. No revision is required if the effective date of the
requirement is after the expiration of the permit term." The EPA implemented §502(b)(9)
in 40 CFR §70.7(f)(1)(i) which provides "additional applicable requirements
under the Act become applicable to a major Part 70 source with a remaining
permit term of three or more years. Such a reopening shall be completed no
later than 18 months after promulgation of the applicable requirement. No
such reopening is required if the effective date of the requirement is later
than the date on which the permit is due to expire, unless the original permit
or any of its terms and conditions has been extended pursuant to 40 CFR §70.4(b)(10)(i)
or (ii) of this part."
While the EPA has faithfully implemented the provisions of §502(b)(9)
through 40 CFR §70.7(f)(1)(i), it is erroneously applying those provisions
to the issue of incorporation of minor NSR. The clear intent of both §502(b)(9)
and §70.7(f)(1)(i) is to establish a procedure to incorporate applicable
requirements that are promulgated after the issuance of an operating permit,
such as a new NSPS, a MACT, or a new RACT requirement. Section 70.7(f)(1)(i)
provides that "such a reopening shall be completed not later than 18 months
after promulgation of the applicable requirement." Although it is true that
Chapter 122 is being revised to add minor NSR authorizations to the definition
of "applicable requirement," this does not mean that minor NSR is a new requirement,
promulgated after issuance of operating permits, that facilities in Texas
must now meet. The EPA has consistently maintained that minor NSR is an applicable
requirement. In addition, facilities in Texas have been subject to the minor
NSR program since 1971. Minor NSR is not a newly promulgated applicable requirement.
Part 70 does not require reopenings for incorporation of minor NSR authorizations
prior to renewal. In the June 20, 1996
Federal Register
notice (61 FR 31443), the EPA added a new 40 CFR §70.4(d)(3)(ii)(D)
to provide a method for the incorporation of minor NSR terms. The EPA states
at 61 FR 31444 that it is "adding rule language clarifying that, upon conversion
to full approval, permits issued during the interim period would have to be
revised or reopened to include any excluded minor NSR terms. Regarding reopening,
today's rule also provides for a streamlined reopening process for excluded
minor NSR terms that does not require the full permit issuance process." The
EPA also noted at 61 FR 31446 that "in proposing to allow this type of interim
approval, {the EPA} did not contemplate that minor NSR applicable requirements
could be excluded until renewal which could be up to five years after full
program approval."
However, in the actual rule text, the EPA did not include a specific deadline
for the incorporation of minor NSR terms into operating permits. Nowhere in
the June 20, 1996 notice does the EPA refer to the 18-month provision in 40
CFR §70.7(f)(1)(i) as being an element of the streamlined process for
the incorporation of minor NSR. Nor does the rule specifically state the minor
NSR cannot be incorporated into operating permits at renewal. Section 70.4(d)(3)(ii)(D)
provides that a "program receiving interim approval for the reason specified
in §70.4(d)(3)(ii)(B) of this section must, upon or before granting of
full approval, institute proceedings to reopen Part 70 permits as required
by 40 CFR §70.7(f)(1)(iv). Such reopening need not follow full permit
issuance procedures nor the notice requirement of §70.7(f)(3), but may
instead follow the permit revision procedure in effect under the State's approved
Part 70 program for incorporation of minor NSR permits."
The EPA could have specified a deadline for reopenings in 40 CFR §70.4(d)(3)(ii)(D)
but instead, it required states to "institute proceedings" to reopen operating
permits in order to incorporate minor NSR authorizations. Again, the reopening
will not incorporate newly promulgated applicable requirements; therefore,
the 18-month deadline specified in 40 CFR §70.7(f)(1)(i) does not apply.
The commission intends to institute proceedings to reopen permits and authorizations
to operate shortly after adoption of the revisions to Chapter 122.
Comment
PC commented that §122.231(a)(1) is inconsistent with 40 CFR §70.7(f)(1)(i)
and should be amended to specify that a permit may be reopened if an additional
applicable requirement under the FCAA becomes applicable to a source, for
any reason. PC commented that §122.231(a)(1)(A) should be deleted because
it is inconsistent with §70.7(f)(1)(i).
Response
The commission does not change the rule in response to this comment. The
commission believes §122.231(a)(1) is consistent with 40 CFR §70.7(f)(1)(i)
which states that a reopening shall be completed not later than 18 months
after "promulgation" of the applicable requirement. Part 70 ties a permit
reopening to a rule promulgation and not to "any reason" that an applicable
requirement becomes applicable. For example, when the permit holder makes
a change at a site that results in a change to applicable requirements in
the permit, then the permit revision process under §§122.213 - 122.221
should be used.
Comment
TIP commented that minor NSR authorizations should be incorporated into
operating permits for which applications have already been submitted at renewal
and not before that time and requested confirmation in the preamble that it
will not reopen operating permits until renewal. BP suggested amending §122.231(c)
to specify that the executive director will reopen permits at renewal. TCC
requested that the commission specify in the preamble or document in the final
rule that, for permit applications submitted by July 22, 2000, minor NSR authorizations
will not be incorporated until permit renewal. TIP also commented that the
process of incorporating minor NSR authorizations may delay permit revisions,
if done at that time, and thus impact the permit holder's ability to operate
the change at the site. By incorporating minor NSR at renewal, the commission
can assure that the process of integrating minor NSR and existing operating
permits will not affect a site's ability to conduct time- sensitive activities.
BP endorsed comments submitted by TCC and TXOGA and generally supported the
integration of NSR and Part 70. However, this transition should be streamlined,
concise, and understandable, and should not be unduly burdensome on either
the commission or the operator in terms of additional resources or time to
incorporate. Integration of existing NSR permits into the operating permit
program should be handled in a manner that will minimize additional expense
and paperwork for our plants. TXOGA requested that the commission clarify
the intent to incorporate NSR permit requirements and operating permit requirements
into a single document at, and not before, renewal of the operating permit.
Any operating permit revision or reopening prior to renewal may have critical
time constraints associated with it and should not be delayed due to incorporation
of the administrative revisions related to the inclusion of NSR provisions.
Permit holders need to have an assured time frame for resource and manpower
scheduling purposes. TXOGA supported the concept of incorporating Chapter
106 and Chapter 116 at permit renewal and requested assurance to schedule
the workload for the inclusion of information and also to avoid delay of critical
permitting actions with strict time constraints. ExxonMobil supported comments
submitted by TIP, TXOGA, and TCC and supported the commission's efforts to
incorporate Part 70 language into Chapter 122. Specifically, ExxonMobil commented
that minor NSR authorizations should be incorporated into operating permits
and not before that time. The process of incorporating those authorizations
may delay the permit revision and thus impact the permit holder's ability
to operate the change at the site. The commission can ensure that the process
of integrating minor NSR and existing operating permits will not affect a
site's ability to conduct time-sensitive activities if NSR is incorporated
at renewal. ExxonMobil requested that the commission confirm in the preamble
that it will not reopen operating permits for the purpose of incorporating
minor NSR authorizations until renewal and that the commission consider the
resources available when developing the implementation process. The process
should be designed with some flexibility to allow minor NSR authorizations
to be incorporated into the operating permits by reference. ExxonMobil also
supports stringency determinations which streamline and simplify redundant
and duplicative standards. TCC commented that §122.231(c) be amended
to clarify that the executive director institute proceedings to reopen permits
for those holding operating permits as of the effective date of the rule,
instead of permits for which applications were submitted to the executive
director prior to the effective date of §122.231. BP supported this and
further suggested to add that operators who have submitted applications to
the executive director prior to the effective date of §122.231, but have
not yet received their operating permit, will incorporate Chapter 106, Subchapter
A or Chapter 116 preconstruction permits at renewal. TCC also requested that
the commission clarify that preconstruction authorizations for applications
submitted by July 22, 2000, not be incorporated into the permit until renewal.
Also, TCC requested that §122.231 be amended to specify that operating
permits for which applications were submitted to the executive director prior
to the effective date of the amended Chapter 122 incorporate minor NSR at
renewal.
Response
After reviewing these comments, and based on negotiations with the EPA
regarding its comments pertaining to the incorporation of minor NSR, the commission
changes §122.231(c). The rule language in §122.231(c) states that
for permits already issued, the incorporation of minor NSR will occur no later
than permit renewal. Applications for which the executive director has authorized
initiation of public notice by the effective date of the rule will incorporate
the requirements for minor NSR no later than permit renewal. Applications
for which the executive director has not authorized initiation of public notice
by the effective date of the rule will include NSR at initial issuance.
Comment
PC commented that §122.231(a)(1)(B) should be amended to be consistent
with 40 CFR §70.7(f)(1)(i) to indicate that the effective date of the
requirement is later than the permit expiration date, unless the original
permit or any of its terms and conditions have been extended pursuant to the
provisions for timely and complete applications for renewal.
Response
The commission agrees with this comment and amends §122.231(a)(1)(B)
to be consistent with 40 CFR §70.7(f)(1)(i).
Comment
PC commented that §122.231(a)(1)(D) should be added to state that
additional requirements (including excess emission requirements) become applicable
to an affected source under the Acid Rain program and that upon approval by
the EPA administrator, excess emissions offset plans shall be deemed to be
incorporated into the permit, to be consistent with §70.7(f)(1)(ii).
Response
The commission agrees with this comment and adds new §122.231(a)(6)
for consistency with §70.7(f)(1)(ii).
Comment
PC commented that §122.231(a)(4) should be amended for consistency
with 40 CFR §70.7(f) and (g) to indicate that the executive director
or the EPA determines that the permit must be revised or terminated to assure
compliance with applicable requirements. Because the EPA may reopen for the
reasons listed in §122.231(a)(4), this list must include a determination
by the EPA that the permit must be revised or terminated to assure compliance.
Response
The commission agrees with this comment and adds the suggested language
to §122.231(a)(4).
Comment
PC commented that the exception in §122.231(c) to incorporate minor
NSR into operating permits is unacceptable. If the state had initially included
minor NSR, as it was required, full public participation would have been provided.
The commission cannot now illegally avoid this public participation. Also,
Part 70 provides no provision to justify the commission's attempt to exempt
minor NSR incorporation from normal notice and comment procedures. PC also
commented that they oppose any provision that would allow initial incorporation
of minor NSR without public participation, which is required by the 42 USC §7661a(b)(6).
Response
The commission does not change the rule in response to this comment. Part
70 was revised on June 20, 1996 (61 FR 31443) to authorize the granting of
interim approval to states with programs that did not include minor NSR as
an applicable requirement. For every incorporation of NSR that occurs at initial
issuance or at renewal, full public participation requirements, including
public notice, will be satisfied. However, the adopted rule implements the
provisions of 40 CFR §70.4 which allow for a truncated reopening process
for the incorporation of minor NSR.
Comment
TIP commented that §122.231(d) should be amended to be consistent
with 40 CFR §70.7(f)(2). The commission proposed the language, " as soon
as possible," whereas §70.7(f)(2) states, "as expeditiously as practicable."
Response
The commission does not change the rule in response to this comment. The
commission believes that the two phrases are equivalent.
Comment
TCC commented that the commission define that a cause for permit reopening
does not exist if a material mistake or inaccurate statement made in the permit
terms and conditions is discovered by the permit holder and corrected through
the submission of the appropriate documentation to revise the permit.
Response
The commission agrees with the comment and adds language clarifying that
cause for reopening includes the determination by the executive director or
the EPA that the permit contains a material mistake. This is consistent with
40 CFR §70.7(f)(1)(iii). However, the permit holder will be required
to revise the permit in accordance with the appropriate permit revision process
and will not necessarily be relieved of any possible enforcement action.
Comment
QLEP, NFN, and 118 individuals commented that the proposed Title V rules
do not protect citizens' right to know what pollutants facilities in their
communities are allowed to emit and the air pollution laws for which compliance
must be demonstrated. An individual also commented that the Title V rules
should ensure that all applicable facilities are required to comply with every
air quality requirement and that enforcement action is taken against all facilities
that do not comply. Another individual commented that the Title V rules do
not protect citizen's rights to be able to determine what pollutants citizens
are exposed to and expressed specific concern about proper guidelines to improve
air quality with respect to greenhouse gases. Allowing citizens to take part
is an important venue that should not be denied. In addition, EEP submitted
a copy of a handbook for citizens on how to participate in the Title V program,
and also commented that once Title V is fully implemented and if the program
is working properly, it should be relatively easy for federal and state enforcement
officials and for members of the public to know what the requirements are
that apply to a given facility. The program should therefore serve as an important
law enforcement tool. Sierra also commented that the operating permit program
is important because for a long time citizens who live in affected communities
near large industrial sources have been interested in trying to understand
the permit requirements and the other requirements in the past were not always
written into these traditional air permits. This is a very powerful tool because
these plants typically are only inspected maybe once a year or once every
two years by the commission's staff. Also, for the first time, these requirements
will help to ensure compliance on a 24-hour, seven-day basis, which is an
effective tool for community people that want to know if a facility is operating
in compliance and in compliance with its permits.
Response
The commission does not change the rule in response to this comment. The
primary goal of the operating permit program is to provide a mechanism, via
a permit, to assure compliance with all applicable rules and regulations.
The commission agrees that these permits are an effective compliance and enforcement
tool for the public, the applicant, the EPA, and the commission. The commission
acknowledges the importance of public participation and the benefits associated
with it. The commission assures that Chapter 122 provides public participation
as required under 40 CFR Part 70 and, in certain cases, exceeds those requirements.
The addition of NSR as an applicable requirement adds information to support
a citizens' right to know what pollutants facilities in their communities
are allowed to emit. In addition, SOPs already contain a pollutant column
in the applicable requirements table that identifies the pollutant regulated
by the applicable requirement. In response to this comment, when the GOPs
are proposed for renewal in October 2001, the heading for each GOP table will
include the pollutant(s) regulated within the table. Part 70 does not define
greenhouse gas guidelines to be an applicable requirement. Currently, there
are no green house gas applicable requirements for the commission to include
in an operating permit. If and when such is promulgated, an operating permit
application will include it.
Comment
QLEP and 118 individuals commented that the rules should be amended to
require that notice of operating permit applications be mailed to all persons
living within one-half mile of a site applying for an operating permit. PC
also commented that notice should be mailed to all persons within a certain
distance from the facility.
Response
The commission does not change the rule in response to this comment. Title
40 CFR Part 70 does not require mailed notice to persons within a given distance
of the site, and Chapter 122 remains consistent with those requirements. The
commission appreciates the commenters' interest and encourages continued public
participation in the operating permit program and in individual permit actions.
The commission has established a procedure for individuals to receive all
notices of permitting actions for an individual site or within a requested
county. The commission believes the ability to be added to this mailing list
provides sufficient opportunity for citizens to receive a notice for each
site to which they are interested.
Comment
PC commented that Chapter 122 should be amended to provide for mailed and
published notice more consistent with other air permitting notice provisions.
Specifically, notice, or at least a reference to the full notice, should be
published in a prominent location in the non-legal notice section of the newspaper
consistent with 30 TAC §116.132(b). PC commented that §122.320(b)
should be consistent with the public notice proceedings in §116.132(b).
PC also commented that §122.340(e) should require notice of a public
hearing to be published in the non-legal notice section of the paper.
Response
The commission agrees that both air permit programs' notice requirements
should be as consistent as possible. Regarding mailed notices, both the operating
permit and NSR programs mail notice of receipt of applications to affected
state representatives and senators. In addition, both air permitting programs
require a sign posting and bilingual public notice, responses to comments,
an appeals process, a requirement to publish in a newspaper, the ability to
be placed on a mailing list, and holding a public meeting when requested.
In addition, to provide for easier public access to permit information, the
commission provides electronic access to both NSR and operating permit actions
and correspondence via the remote document server (RDS) located at:
Comment
PC commented that a mailing list should be maintained for persons who wish
to receive notice of all operating permit applications. Also, the notice of
existing mailing lists, only contained in the
Texas
Register
, is so poor that few people know that they can have their
names added to a mailing list. TCE commented that citizens should be able
to get on a list for a particular facility or group of facilities in their
area so that they can be informed in terms of permit problems and enforcement
issues, violations, etc. SEED noted that they requested notification on 16
different plants, but was told that can be done for water but not for air.
They would like to see that corrected.
Response
The commission does not change the rule in response to this comment. The
commission does not rely strictly on any
Texas Register
notification to provide information about the option of being placed
on a mailing list. Information concerning mailing lists is included in each
air, water, and waste permit notice published in newspapers. TCAA, §382.056(b)(6)
requires newspaper notices for air permit applications to provide a description
of the procedures by which a person may be placed on a mailing list in order
to receive additional information about the application. Section 122.320(b)(9)
requires newspaper notices for draft operating permits to contain a description
of the procedures by which a person may be placed on a mailing list in order
to receive additional information about the application or draft permit. Enforcement
actions or violations are matters of public record and information on these
actions are available upon request. Citizens may also request a summary of
all violations for a specific time period for any facility.
The opportunity to be placed on a mailing list is available for all permit
actions the commission requires to have a newspaper notice. The following
procedures explain how to be placed on a mailing list for permit applications
that undergo newspaper public notice. Specifically, a person may submit a
request to be added to the mailing list for one or more sites by submitting
the request to the TNRCC Office of the Chief Clerk. The request must include
the requestor's name and address (with zip code), the name of the site or
sites of interest, and the application project number or permit number. In
addition, the requestor may instead ask to be placed on a mailing list to
receive permit notices for every site in a given county.
Comment
PC commented that the commission should work towards providing notice of
all operating permit activities on its Title V website.
Response
In addition to the current list of pending and issued operating permits
contained on the website, the commission agrees to add a list of all draft
operating permits in public notice.
Comment
PC and Neighbor for Neighbors do not support concurrent public notice and
EPA review, since this would deny the EPA the benefit of reviewing citizen
comments on a draft permit. Because facilities are allowed to continue to
operate while their operating permit applications are pending, the permitting
process should not be expedited at the expense of public participation and
thorough review. TCC was supportive of the proposed §122.350(b)(1), to
enable concurrent public notice and EPA review. TCC believes that this amendment
will help make the NSR/Part 70 authorization more efficient and lessen the
impacts on the permit holder's operations, especially on time-sensitive items.
PC commented that §122.350(b)(1) should not be amended to allow public
and EPA review periods. Part 70 does not provide for current public and EPA
review period. TCC was supportive of the proposed §122.350(b)(1), to
enable concurrent public notice and EPA review. TCC believes that this amendment
will help make the NSR/Part 70 authorization more efficient and lessen the
impacts on the permit holder's operations, especially on time-sensitive items.
PC commented that §122.350(b)(1) should not be amended to allow concurrent
public and EPA review periods. Part 70 does not provide for current public
and EPA review periods.
Response
In response to this comment, the commission amends §122.350(b)(1)
to state that EPA review may run concurrently with public notice and that,
if appropriate, the executive director may extend the EPA review period. The
commission also amends the definition of draft permit to clarify that it may
be the same as a proposed permit. The commission adopts the option for concurrent
review, since less than 4% of the issued SOPs have received public comment.
The draft permit is the permit the executive director intends to issue
unless comments are received that result in a change to the permit. When no
comments are received during public notice, the draft permit and the proposed
permit are the same document. It is this same document that the executive
director intends to issue as a proposed final action, which is consistent
with Part 70. If comments are not received, public participation and thorough
EPA review are in no way impacted by concurrent notice and review.
When comments are received, the concurrent EPA review period may be extended.
Consistent with §122.345, Notice of Proposed Final Action, a notice of
proposed final action (action) is prepared and sent to each commenter, each
person on a mailing list for that permit, the applicant, and the EPA. This
action must contain: a listing of all comments received, the commission's
responses, identification of any changes to the permit, the dates for the
45-day EPA review period, the dates for the public petition period, and the
procedures by which a petition may be filed. In this case, the EPA review
period may be extended.
Comment
TXOGA supported the revisions to Subchapter D.
Response
The commission appreciates TXOGA's support of the revisions to Subchapter
D.
Comment
PC commented that §122.320(b)(5) be amended to specify that notice
include the air pollutants with emission changes involved in any modification.
Response
The commission does not change the rule as a result of this comment. Section
122.320(b)(5) is consistent with 40 CFR §70.7(h)(2) because newspaper
notice is only required for significant revisions. The commission provides
for a public announcement period for minor revisions, but this is above and
beyond what is required in Part 70.
Comment
PC commented that §122.320(f) should be amended to specify that a
copy of the permit application, draft permit and any required notices will
be provided to the EPA, not just made accessible to the EPA, for consistency
with 40 CFR §70.7(a)(1)(iv). Section 122.501(e), General Operating Permits,
and §122.502(h), Authorization to Operate, should also be amended to
specify that copies of draft GOPs and a copy of the authorizations to operate
be provided to the EPA, either in electronic or paper format, and not merely
made accessible to the EPA, to be consistent with 40 CFR §§70.4(b)(3)(v),
70.7(a)(1)(v) and (d)(3)(ii), and 70.8(a).
Response
The preamble to the adopted October 1997 Chapter 122 rules stated that
the EPA commented on the requirement appearing throughout the rule that information
be submitted to the EPA. In response to that comment, the commission amended
to the rule to specify that information will be made accessible to the EPA.
Comment
PC commented that the word "substantially" should be removed from §122.320(h)(1),
since the amendment may result in public notice signs with lettering too small
to adequately alert the public or signs with insufficient information. Conversely,
TCC was supportive of adding the word "substantially" to §122.320(h)(1)
to adequately meet public notice requirements.
Response
The commission does not change the rule in response to this comment. The
commission believes the language provides the executive director with necessary
discretionary authority and that 40 CFR Part 70 does not require a sign to
be posted. This change is added for consistency with Chapter 39 sign posting
requirements.
Comment
SEED commented that no one has ever seen postings and these notifications
are inadequate. People do not look for these notifications. There needs to
be a better way for citizens to find out who is applying for an operating
permit and obtain information in a timely manner so that citizens can have
input to the process and have it be meaningful. SEED has also attempted to
contact the agency and found that it was difficult and frustrating to call
and obtain information about operating permits, to contact and obtain information
via E-mail, or to obtain information at the TNRCC offices. Staff seemed uninformed
about Title V and Air Permits staff, specifically, had difficulty in obtaining
information quickly and easily and aid citizens in finding information. Even
permits that have not been issued were not in the public information office
where they can be viewed with the other permits, applications, and history
of the company so that they can be viewed together, because that is the reason
why Title V is potentially such a good tool. Permits that were viewed were
very sketchy compared with those that have been held up as examples. These
permits were already in place before citizens even knew about the process
and the extent of the difficulty involved in trying to get a hold of this
material. Therefore, SEED encourages the commission to make a system that
works better. SEED recommended that the notification process be an easy, accessible
process so citizens don't have to rely on catching some notification that
they may easily miss in the newspaper if they don't read notifications every
day of the year.
Response
As discussed in response to previous comments, the commission provides
several avenues for providing notice to the public regarding operating permit
actions. Some of these avenues are more comprehensive than federal requirements.
In addition, the commission commits to list all draft operating permits
authorized to publish notice on the website and currently lists all pending
and issued operating permits. To further assist the public, the commission
will add the permit reviewer's name on the website. In September 1999, the
commission amended §122.320(b)(9) to require that the newspaper notice
include information on how a citizen may request to be on a mailing list.
To provide for quicker transmission of open records requests, the commission
has a specific e-mail address which is
openrecs@tnrcc.state.tx.us
. Each permitting division, including air, has a public notice coordinator
and one or more open records request coordinators to assist in proper and
prompt handling of information requests. Also, all notices for air, water,
and waste permits include information on how to be placed on a mailing list
for notices and include the toll-free Office of Public Assistance number.
Starting in January 2000, air operating permit application public notices
have been available through the Office of the Chief Clerk. Each notice specifies
that the permit file may be viewed and copied at the TNRCC Austin Central
Offices, the appropriate Regional Office, and in the public location that
the applicant makes the permit application and draft permit available. In
addition, to provide for easier public access to permit information, the commission
provides electronic access to both NSR and operating permit actions and correspondence
via the remote document server (RDS) located at:
http://www.tnrcc.state.tx.us/permitting/airperm/rdsinstr.htm
. Specifically
the RDS provides electronic access to draft, proposed, and issued operating
permits.
Comment
PC requested that §122.320(j) be amended to eliminate the requirement
that a hearing be requested by a person who may be affected by emissions from
a site. Operating permit hearings are not contested case hearings and should,
therefore, not be so limited. Title 40 CFR §70.7(h) does not restrict
the availability of a hearing. PC also commented that §122.340(d) should
not give the executive director discretion to deny a public hearing request
that is "unreasonable." PC commented that §122.340(d), which specifies
that the executive director is not required to hold a hearing if the basis
is determined to be unreasonable, should be amended to state that a public
hearing will be held on an operating permit application if such hearing is
requested. Operating permit hearings are notice and comment hearings and are
not overly burdensome for the commission. The commission formerly used a "reasonable"
standard in contested case hearings, which was ambiguous and led to numerous
lawsuits, and the "reasonableness" standard was removed from the contested
case hearing rules by the Texas Legislature and should be deleted from Chapter
122. PC commented that §122.508, Notice and Comment Hearings for General
Operating Permits, should be amended to require a notice and comment hearing
to be held if one is requested. It should not be limited to reasonable requests
by an affected person.
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. TCAA, §382.0561(c) specifies that a person
who may be affected by emissions may request a hearing during the public notice
period. It further specifies that the commission 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. On May 6, 1996, the commission submitted an opinion from
the Office of the Attorney General of Texas addressing the issue of standing
to participate in contested case hearings. This opinion was requested by the
EPA following the passage of SB 1546, of the 74th Texas Legislature, 1995.
SB 1546 added a definition of "affected person" or "person affected" or "person
who may be affected" for purposes of administrative hearings held by or for
the commission involving a contested case. It was the opinion of the Attorney
General that SB 1546 was intended to amend §5.115 of the TWC to address
standing for the specific purpose of public participation in permitting matters
for which a contested case hearing is required by the Administrative Procedures
Act (APA) and the TCAA. Because §382.0561 specifically exempts operating
permits from the contested case hearing requirements of the APA, the definition
in SB 1546 does not apply to "affected persons" or "persons affected" or "persons
who may be affected" as those terms may be used in reference to the operating
permit program. Section 382.0561 continues to be the statutory authority for
standing to participate in operating permit hearings. Thus, the commission
believes that the reasonableness standard continues to apply to requests for
hearings for operating permits. Procedurally, for operating permits, the commission
has interpreted that a person that may be affected by emissions includes any
interested person, which is consistent with Part 70. The commission has received
eight hearing requests. Of these requests, five were granted, one was withdrawn
by the requestor, and one was not granted since the request was dated after
the end of public notice. So far, no hearing has been denied based upon executive
director discretionary authority.
Comment
PC commented that the proposed language in §122.360(c) should not
be adopted. The provision appears to run the public petition period for GOPs
during the public notice and EPA review periods. This will not allow the public
to know if the EPA objected to a permit and if there is a need to petition
and is also inconsistent with Part 70.
Response
The commission does not change the rule in response to this comment. The
commission wishes to clarify that by adopting this language, the commission
is not running the public petition period during the public notice and EPA
review periods. The public petition period for GOPs will start after completion
of both the public notice period and the EPA review period. Adopting §122.360(c)
allows the commission to extend the start of the petition period to the date
of GOP issuance. The GOP will never be issued before the completion of the
EPA review period.
Comment
PC commented that §122.501(a)(1), (d)(1)(B), (2)(B), (3)(B), and §122.505(f)(1),
Renewal of the Authorization to Operate Under a General Operating Permit,
should be amended to include the requirement to comply with all applicable
requirements and with all requirements of Chapter 122 for consistency with
40 CFR §70.4(b)(3)(v) and §70.7(a)(1)(iv). GOPs should assure compliance
with all applicable requirements as well as all of the requirements in Chapter
122.
Response
The commission did not propose amendments to the sections identified by
the commenter; therefore, under Texas administrative law, the sections cannot
be amended at this adoption. The commission does not believe that these sections
require amendments. Chapter 122 requires that all permits comply with any
applicable requirements as defined in Chapter 122. Therefore, compliance with
Chapter 122 requires compliance with all applicable requirements.
Comment
PC commented that §122.502(a) should be amended to specify that GOP
applications be required to include, at least, a compliance plan and certification
as well as information regarding emissions and applicable requirements. Also,
the application needs to include sufficient information to allow for public
participation and affected state and EPA review.
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. The commission disagrees with the comments regarding §122.502(a)
and the suggestion to specify that GOP applications be required to include
a compliance plan. A qualification criterion is in each GOP that requires
emission units which are authorized to operate under the respective GOP to
be in compliance with all codified requirements at the time of application
submittal. If all units are in compliance, there is no need for a compliance
plan to be submitted. Regarding a compliance certification, §122.501(a)(1)
requires that the conditions of the GOPs provide for compliance with all requirements
of Chapter 122. Therefore, the annual compliance certification requirement
in §122.143(16) is inherent in all GOPs. The applications for GOPs do
not require a submittal of applicable requirements because the purpose of
the GOPs is to codify the applicable requirements for the applicants. GOP
applications are not required to undergo public participation, affected state
review, and EPA review because each GOP has already met these requirements
prior to issuance under §122.501(a). Further, 40 CFR §70.6(d)(2)
specifies that the permitting authority may grant a request for an authorization
to operate under a GOP without repeating the public participation procedures.
The applications are simply requests for approval to operate under the GOP.
Comment
PC commented that §122.503, Application Revisions for Changes at a
Site, inappropriately allows sites authorized by GOPs to operate under provisional
terms and conditions.
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. The provisional terms and conditions require
permit holders to comply with the underlying applicable requirements as those
requirements are changed in state and federal rules. Provisional terms and
conditions do not allow for exemptions or any other condition of noncompliance
with the state and federal rules.
PC commented that §122.506(a), Public Notice for General Operating
Permits, should require notice of GOPs to be mailed to all persons who request
to be included on an operating permit mailing list.
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. The commission agrees with this comment, will
address it procedurally and may consider this comment for future rulemaking.
Comment
PC commented that §122.509, Public Announcement for General Operating
Permits, should be amended to specify that permit revisions to GOPs comply
with the revision process in §§122.210 - 122.221. The public announcement
provisions do not provide for adequate notice to the public.
Response
The commission did not propose amendments to §122.509; therefore,
under Texas administrative law, the section cannot be amended at this adoption.
The commission believes the GOP permit revision processes contained in §122.501(d)
and §§122.506 - 122.509 parallel the permit revision processes in §§122.210
- 122.221. Specifically, §122.501(a) specifies the public participation
required for issuance of a GOP which includes public notice, affected state
review, EPA review, and public petition. Section 122.501(d) provides for administrative,
minor, and significant revisions for GOPs. Section 122.501(d)(1) and (2),
related to administrative and minor permit revisions, are included in case
they are needed; although, the commission believes that GOP revisions will
exclusively or almost exclusively use the significant revision process. Section
122.506 contains the public notice requirements for GOP issuance, significant
permit revision, or rescission of any GOP. This section also requires notice
of a draft GOP to be published in the
Texas Register
; on the commission's publicly accessible electronic media; and in
the daily newspaper of largest general circulation in Austin, Dallas, and
Houston if the GOP applies state-wide. Section 122.506 also specifies the
information that must be contained in the newspaper notice, including an opportunity
to request a notice and comment hearing. Section 122.508 contains the provisions
for notice and comment hearings for GOPS and the hearing notice requirements.
Section 122.509 contains the public announcement provisions that the commission
will use to process a GOP minor revision which exceeds the 40 CFR §70.7(h)
requirements.
Comment
PC commented that §122.510, General Operating Permits Adopted by the
Commission, should be amended to specify that GOPs expire every five years
and requested an explanation of the commission's authority to automatically
transfer an authorization to operate under one GOP to an authorization to
operate under another GOP.
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. Additionally, it is not necessary to amend §122.510
because §122.501(f) requires that GOPs be renewed at least every five
years after the effective date. The basis for the commission's authority to
automatically transfer an authorization to operate under one GOP adopted by
the commission to an authorization to operate under another GOP adopted by
the executive director is found under the TCAA, §382.012, which provides
the commission the authority to create a comprehensive plan for the proper
control of the state's air; §382.017, which provides the commission authority
to adopt rules; §382.051(b)(2), which provides the commission authority
to issue permits for numerous similar sources; and §382.054, which prohibits
operation of a federal source of air pollution without a FOP obtained from
the commission.
Comment
PC commented that GOPs do not appear to incorporate all applicable requirements.
NSR permits are excluded, specifically in §122.511(b)(4)(A), Oil and
Gas General Operating Permit - Brazoria, Chambers, Collin, Dallas, Denton,
El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery,
Orange, Tarrant, and Waller Counties. Also, the rules do not appear to include
monitoring and reporting sufficient to meet the requirements of 40 CFR §70.6(a)(3)(i)(B)
and §70.6(c)(1).
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. However, the commission is currently in the process
of revising the GOPs to include any new applicable requirement (including
minor NSR), monitoring, recordkeeping, and reporting requirements. In addition,
the executive director is implementing periodic monitoring and CAM through
a phased approach. The executive director reviewed all applicable requirements
to determine which requirements contain no monitoring and added any appropriate
periodic monitoring to the GOPs scheduled to be issued in October 2001. The
existing GOPs by rule are required to be renewed by October 26, 2001. Because
of the extensive changes to the applicable requirements in every GOP, the
commission is not renewing the GOPs by rule. Instead, the executive director
will issue new GOPs which will include minor NSR. The executive director will
institute proceedings to reopen previously approved authorizations to operate.
Each owner or operator authorized to operate under a GOP by rule will be required
to apply for a new authorization to operate under the executive director issued
GOP or submit an application for an SOP.
The executive director, working with the EPA, developed acceptable procedures
and appropriate monitoring requirements to satisfy the Part 70 periodic monitoring
provisions. These requirements are included in initially issued permits. The
EPA is agreeable to phasing in the remainder of the needed periodic monitoring
requirements. The executive director called in full applications based on
Standard Industrial Classification (SIC) codes. CAM and periodic monitoring
GOPs are being developed and phased in accordance to this call-in schedule.
Therefore, the commission can ensure that adequate and appropriate CAM and
periodic monitoring are available when needed for incorporation into permits.
Comment
PC commented that the site-wide GOP provided for in §122.516, Site-wide
General Operating Permit, does not apply to similar sources.
Response
The commission did not propose amendments to the section identified by
the; therefore, under Texas administrative law, the section cannot be amended
at this adoption. The commission disagrees with the comment that the site-wide
GOP provided for in §122.516 does not apply to similar sources. The site-wide
GOP was developed for simple sites having only site-wide requirements or for
major source sites with no applicable requirements.
Comment
PC commented on §122.516(b)(3)(A)(i), (B)(i), (D)(i) and (E)(i). The
compliance certification should be based on any credible evidence and not
limited to a once per year visual observation of stationary vents.
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. Section 122.146(4) specifies that the certification
be based on, at a minimum, the monitoring method (or recordkeeping method,
if appropriate) required by the permit to be used to assess compliance. Title
40 CFR §70.6(c)(5)(iii)(B) specifies that permits shall include a requirement
that the compliance certification include the identification of the method
or other means used by the owner or operator for determining the compliance
status with each term and condition and that such methods and other means
shall include, at a minimum, the methods and means required under 40 CFR §70.6(a)(3),
Monitoring and Related Recordkeeping and Reporting Requirements. Likewise,
the Chapter 122 definition of deviation is any indication of noncompliance
with a term or condition of the permit as found using, at a minimum, compliance
method data from monitoring, recordkeeping, reporting, or testing required
by the permit. This also is consistent with the information contained in 40
CFR §70.6(c)(5)(iii)(B).
The commission's rules do not prevent the consideration of any credible
evidence to determine compliance with a Title V permit, including instances
where the commission receives that information from citizens. The commission's
regional offices are charged with reviewing Title V certifications and may
include consideration of all credible evidence in evaluating certifications
of compliance. The commission has preferred using evidence obtained by commission
staff because they are trained to collect evidence in accordance with standard
and legal methods and to handle that evidence properly to preserve the chain
of custody. These standards of collection and handling are established to
protect the reliability of that evidence. Whether the evidence is collected
by the commission or by citizens, the information to be used as credible evidence
must meet Texas Rules of Evidence before the commission can consider it in
making decisions related to compliance or non-compliance. The commission is
currently developing guidance concerning the use of evidence obtained from
sources outside the commission and the criteria that must be met for the evidence
to be considered in making decisions related to compliance. Once issued, the
guidance will be consistent with any Texas legislation currently being considered
that deals with credible evidence.
The commission determined that a once per year visual observation is acceptable
periodic monitoring under §122.516(b)(3)(A)(i), (B)(i), (D)(i) and (E)(i).
The EPA has accepted this through their review of SOPs containing the same
terms and conditions.
Comment
PC commented on §122.516(c) in that general terms and conditions are
subject to the same problems as that for the general terms and conditions
of individual operating permits.
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. The executive director is currently reviewing
the GOPs and expects to revise them in the near future. The revisions will
be consistent, as appropriate, with the general terms and conditions of individual
operating permits.
Comment
The EPA commented that the commission never submitted Chapter 122, Subchapters
G, Periodic Monitoring, and Subchapter H, Compliance Assurance Monitoring,
for approval. It is not clear that the provisions of Subchapter H meet 40
CFR Part 64 (Part 64). If the commission intends to submit these subchapters
to the EPA for approval, it must include documentation that these subchapters
meet the requirements of Part 64 and other federal requirements applicable
under Part 70.
Response
The commission is submitting Subchapters G and H as part of the full program
submittal. Documentation demonstrating that the subchapters meet the requirements
of Parts 64 and 70 will be provided with the submittal.
Comment
PC commented that the implementation of the CAM GOP, periodic monitoring
GOP, and site- wide GOP are inconsistent with 40 CFR §70.6(d) in that
they apply to sources that are not similar. Instead, CAM and periodic monitoring
GOPS can cover every source and are not permits at all, but are required conditions
of an operating permit and should be included in operating permits in the
same manner as all other required conditions. PC also commented that periodic
monitoring, provided in §122.600(a)(1), Implementation of Periodic Monitoring,
should not be implemented through a GOP. Periodic monitoring does not apply
to numerous similar sources and is a site-specific determination. It is a
permit condition, not a permit, and is required to be included in each operating
permit. Any new permit must include periodic monitoring.
Response
The commission does not change the rules in response to this comment. While
40 CFR §70.6(d) references sources that are similar, the implementation
of the CAM and periodic monitoring GOP are for similar sources subject to
applicable requirements. While these emission units may be found at different
sites, the emission units subject to the applicable requirements must have
similar attributes. Therefore, the commission believes that the implementation
of CAM and periodic monitoring through the GOPs is consistent with 40 CFR §70.6(d).
The commission would like to note that periodic monitoring is implemented
in two phases. The first phase is at initial issuance for those emission limitations
or standards with no monitoring, testing, recordkeeping, or reporting. The
second phase is through the GOPs for those emission limitations or standards
which only require a one-time test at start-up or when requested by the EPA.
Comment
PC commented that the commission's implementation of CAM is inconsistent
with the EPA's CAM rule.
Response
The commission does not change the rules in response to this comment. Although
Part 64 focuses on a "case-by-case" approach, it allows permitting authorities
the flexibility to use a programmatic approach, such as the CAM GOP approach,
for the implementation of CAM. The commission submitted several comments to
the EPA during the development of Part 64 recommending that permitting authorities
be allowed to establish CAM requirements on a programmatic basis. This programmatic
approach would allow permitting authorities to design CAM monitoring requirements
for a class of emission units that can be used across the state. The preamble
to the promulgated Part 64 rule states that "{t}he EPA encourages States to
consider adding monitoring requirements to existing and new rules that are
consistent with 40 CFR 64 requirements." In this manner, the burdens associated
with source-specific monitoring development could be reduced. To provide an
incentive for this type of rule, the final rule includes a provision (see
40 CFR §64.4(b)) that allows the owner or operator to rely upon this
type of programmatic rule as the primary documentation of the appropriateness
of its monitoring. This approach would reduce the number of case-by-case reviews
necessary to implement Part 64 (62 FR 54903). Although the 40 CFR 64 preamble
discusses the programmatic approach in the context of rulemaking, the commission
believes that the CAM GOP approach is consistent with the goals of the programmatic
approach and achieves the same results. Thus, the CAM GOP streamlined approach
is designed to address 40 CFR 64 requirements in a programmatic manner.
Comment
PC commented that it is not appropriate to incorporate periodic monitoring,
as specified in §122.608, Procedures for Incorporating Periodic Monitoring
or CAM, as specified in §122.708, through GOPs. Section 122.608(b)(1)
allows the incorporation of periodic monitoring with no public participation.
CAM GOPs and periodic monitoring GOPs do not allow public participation in
determining the appropriateness of monitoring or deviation limits for specific
facilities. Public comments on the CAM or periodic monitoring GOP itself is
insufficient, since the public doesn't have the facility-specific information
it needs for full participation at the time the GOP is issued, only until
the facility submits an application for an individual permit. Thus, there
is no real opportunity for the public to participate in the detailed site-specific
determinations that must be made when determining monitoring. Since monitoring
and reporting and the associated requirements are the only things that are
added to an operating permit that are not included in underlying applicable
requirements, it is very important that citizens have full participation in
deciding what kind of reporting and monitoring requirements go into operating
permits.
Response
The commission does not change the rule in response to this comment. The
CAM and periodic monitoring GOPs are subject to public notice, affected state
review, notice and comment hearing (if requested), EPA review, and public
petition, as are all GOPs when initially issued by the executive director.
As permit holders apply to use a CAM and periodic monitoring GOP, the executive
director will review the appropriateness of any monitoring option selected,
as well as any additional, site-specific requirements that may be necessary
to satisfy Part 64 if the emission unit is subject to CAM. Once approved,
the monitoring option will be codified in either a FOP or a GOP. Therefore,
when incorporating CAM or periodic monitoring into a FOP the monitoring option
chosen, the deviation limits, and the justification for the deviation limit
will be subject to public notice or public announcement, affected state review,
public petition, notice and comment hearing (if applicable and if requested),
and EPA review. For permit holders operating under traditional GOPs and using
a CAM GOP, the approved monitoring options become representations under which
the permit holder shall operate.
Comment
PC commented that Part 70 requires adequate testing, monitoring, reporting
and recordkeeping requirements to be incorporated into operating permits if
the underlying applicable requirements do not contain them. Section 70.6(a)(3)(i)(B)
requires periodic monitoring and §70.6(c)(1) requires monitoring sufficient
to assure compliance. Compliance assurance monitoring is actually a separate
requirement from the CAM requirement and the EPA has made it clear in its
regulations that operating permits still need to include their own compliance
assurance monitoring if the CAM isn't going to be in effect. Chapter 122 should
be amended to make it clear that each and every permit has to include compliance
assurance monitoring for every requirement.
Response
The commission does not change the rules in response to this comment. The
commission disagrees that 40 CFR §70.6(c) requires a separate compliance
assurance monitoring program from that required by Part 64. Section 70.6(c)
provides general conditions for compliance purposes. On October 22, 1997,
the EPA established the CAM Program with the promulgation of 40 CFR Part 64
to respond to FCAA, §114(a)(3), concerning enhanced monitoring and compliance
certifications, and FCAA, §504(b), concerning monitoring and analysis
(62 FR 54901). The EPA states that "the general purpose of the monitoring
required by Part 64 is to assure compliance with emission standards through
requiring monitoring of the operation and maintenance of the control equipment
and, if applicable, operating conditions of the pollutant-specific emissions
unit" (62 FR 54918). While 40 CFR 64 requires additional monitoring and analysis
for emission units which exceed the major source threshold, periodic monitoring
is required for all other emission units with applicable requirements which
require only a one-time test or do not require any monitoring, testing, recordkeeping,
or reporting. Therefore, with the implementation of the CAM and periodic monitoring
GOPs, each permit will contain monitoring so that compliance can be determined.
Comment
PC commented that §122.142(c) only requires periodic monitoring to
be included as required by the executive director. Since Part 70 requires
that all operating permits include periodic monitoring for each applicable
requirement, this condition should be removed. EEP also commented that each
operating permit requires periodic monitoring.
Response
The commission does not change the rules in response to this comment. On
April 14, 2000, the United States Court of Appeals for the District of Columbia
Circuit decided
Appalachian Power Company, et al,
vs. Environmental Protection Agency
. Appalachian Power set aside, in
its entirety, the EPA's "Periodic Monitoring Guidance for Title V Operating
Permits Programs," released in September 1998. The court stated that "state
permitting authorities may not, on the basis of the EPA's Guidance or 40 CFR §70.6(a)(3)(i)(B),
require in permits that the regulated source conduct more frequent monitoring
of its emissions than that provided in the applicable State or Federal standard,
unless that standard requires no periodic testing, specifies no frequency,
or requires only a one-time test." The commission would like to note that
periodic monitoring is implemented in two phases. The first phase is at initial
issuance for those emission limitations or standards with no monitoring, testing,
recordkeeping, or reporting. The second phase is through the GOPs for those
emission limitations or standards which only require a one-time test (at start-up
or when requested by the Administrator). Each permit will contain periodic
monitoring as appropriate.
Comment
PC commented that §122.604, Periodic Monitoring Application Due Dates,
and §122.704, Compliance Assurance Monitoring Application Due Dates,
require that no facility need submit an application for periodic monitoring
or CAM for approximately two years or longer; periodic monitoring and CAM
should be included in operating permits. Those permits already issued that
do not include periodic monitoring are defective and should be reopened. PC
commented that periodic monitoring is a requirement of every operating permit
and cannot be deferred as specified in §122.604.
Response
The commission does not change the rules in response to this comment. As
previously discussed, the executive director is implementing CAM and periodic
monitoring through a phased approach based on permit issuance and SIC codes.
The commission considered several factors when developing the schedule for
application due dates. Due to the technical requirements in 40 CFR Part 64,
compliance with CAM and periodic monitoring may require permit holders to
purchase and install new equipment or conduct performance testing. The application
submittal schedule should allow permit holders a reasonable amount of time
to budget for, purchase, install, and test equipment necessary to comply with
CAM and periodic monitoring requirements. Furthermore, the schedule allows
the executive director time to develop comprehensive monitoring options for
inclusion in various CAM and periodic monitoring GOPs issued over time. Finally,
under the schedule, permit holders will submit applications to the executive
director in manageable numbers throughout each calendar year. The executive
director will be able to review these applications in a more timely fashion
than if all applications were due at the same time.
Comment
PC commented that §122.142 does not specify that operating permits
must include compliance assurance monitoring.
Response
The commission agrees with the comment and adopts new §122.142(h)
which includes a requirement for CAM.
Comment
Sierra commented that the commission's rules do not provide for sufficient
monitoring, reporting, and recordkeeping in order to ensure that there is
continuous compliance around the clock, 365 days a year, in terms of all of
the applicable requirements.
Response
The commission does not change the rule in response to this comment. The
commission believes that the requirements in Chapter 122 are sufficient to
determine compliance with the applicable requirements because the program
implements all required monitoring and recordkeeping required under Part 70.
Comment
PC commented that if it were appropriate to incorporate periodic monitoring
through a GOP (it is not), the addition of periodic monitoring would be a
significant change in monitoring provisions of the existing permit and, for
consistency with 40 CFR §70.7(e)(4)(i), would be required to be incorporated
through a significant permit revision. It is also not appropriate to incorporate
periodic monitoring through a minor permit revision, provided in §122.608(b)(2)
and (c). Incorporating CAM requirements would be a significant change in monitoring
and would require a significant permit revision, consistent with 40 CFR §70.7(e)(4)(i).
Response
The commission does not change the rule in response to this comment. Section
122.608(b)(2) specifies that permit holders operating under a permit other
than a GOP and applying for a periodic monitoring GOP must comply with §122.217(f)
and (g). The EPA states in the preamble to the adopted Consolidated Air Rule
that an instance where a permit holder has significant discretion over the
monitoring to be contained in a FOP constitutes a significant permit revision
(65 FR 78272). These changes are not significant permit revisions because
significant permit revisions to monitoring requirements are those over which
the permit holder has significant discretion. Because the permit holder is
selecting a monitoring option already determined by the executive director
to satisfy periodic monitoring, the permit holder does not have significant
discretion over those requirements. In addition, each periodic monitoring
GOP is subject to public notice, affected state review, notice and comment
hearing (if requested), EPA review, and public petition; therefore, it is
unnecessary to repeat these procedural requirements using the significant
permit revision process.
Comment
PC commented that the periodic monitoring permit content in §122.610,
Periodic Monitoring General Operating Permits Content, and the CAM permit
content in §122.710, Compliance Assurance Monitoring General Operating
Permit Content, do not meet the requirements of 40 CFR §70.6(a) and (b).
PC commented that the periodic monitoring and CAM application requirements
in §122.612, Periodic Monitoring Requirements in Permits and General
Operating Permit Applications, and §122.706, Applications for Compliance
Assurance Monitoring, do not contain all the information required by 42 USC §7661b,
necessary to determine qualification for the GOP, and necessary to assure
compliance with the GOP.
Response
The commission does not change the rules in response to this comment. The
CAM and periodic monitoring GOPs were not designed to mimic a SOP; therefore,
the content will not be identical to the requirements of 40 CFR §70.6(a)
and (b). The CAM and periodic monitoring GOPs are unique in that the information
submitted will become a part of the existing SOP or GOP and are supplemental
to an existing operating permit. The commission believes that Part 70 implements
the requirements listed in 42 USC §7661b, Permit Applications. The commission
believes its application requirement is consistent with 40 CFR §70.6(a)
and (b). These requirements have been incorporated into a previously issued
SOP or GOP and are not required for CAM or periodic monitoring GOP applications.
Comment
PC commented on §122.700(a)(1), Implementation of Compliance Assurance
Monitoring. Part 64 does not provide for the use of a GOP for establishing
CAM. CAM is a permit requirement of all operating permits and should not be
implemented through a GOP.
Response
The commission does not change the rule in response to this comment. Although
40 CFR Part 64 focuses on a "case-by-case" approach, it allows permitting
authorities the flexibility to use a programmatic approach, such as the CAM
GOP approach, for the implementation of CAM. The commission submitted several
comments to the EPA during the development of 40 CFR 64, recommending that
permitting authorities be allowed to establish CAM requirements on a programmatic
basis. This programmatic approach would allow permitting authorities to design
CAM monitoring requirements for a class of emission units that can be used
across the state. The preamble to the promulgated 40 CFR 64 rule states that
"{t}he EPA encourages States to consider adding monitoring requirements to
existing and new rules that are consistent with 40 CFR 64 requirements." In
this manner, the burdens associated with source-specific monitoring development
could be reduced. To provide an incentive for this type of rule, the final
rule includes a provision (see §64.4(b)) that allows the owner or operator
to rely upon this type of programmatic rule as the primary documentation of
the appropriateness of its monitoring. This approach would reduce the number
of case-by-case reviews necessary to implement 40 CFR 64 (62 FR 54903). Although
the 40 CFR 64 preamble discusses the programmatic approach in the context
of rulemaking, the commission believes that the CAM GOP approach is consistent
with the goals of the programmatic approach and achieves the same results.
In addition, the CAM GOP approach would more easily accommodate changes in
applicable requirements. The ability to quickly address revised applicable
requirements is particularly important to ensure that FOPs reflect a site's
most current compliance obligations.
Comment
PC commented that §122.702(c)(6), Compliance Assurance Monitoring
Applicability, should be amended to state " ...continuous compliance determination
method as defined in 40 CFR §64.1, unless the...".
Response
The commission does not change the rule in response to this comment. Section
122.10 defines "continuous compliance determination method." This definition
is consistent with the definition contained in 40 CFR §64.1.
Comment
PC commented that the exemptions in §122.702(c)(7) and (8) are not
provided for in §64.2.
Response
The commission does not change the rule in response to this comment. Section
122.702(c)(7) exempts emission limitations or standards, in addition to those
identified in 40 CFR 64, that the EPA identifies in guidance as exempt from
CAM. This exemption will allow the regulated community to take advantage of
exemptions that the EPA identifies in guidance for 40 CFR 64. For example,
the EPA states in its Compliance Assurance Monitoring Technical Guidance Document
issued in August 1998 that the amendments to 40 CFR 61, Subpart L are exempt
from CAM although the original emission limitations or standards were proposed
before November 15, 1990. Section 122.702(c)(8) also exempts emission limitations
or standards regulating fugitive emissions to be consistent with the EPA's
40 CFR 64 preamble which states that "fugitive emissions are not subject to
any specific part 64 monitoring requirements" (62 FR 54909).
Comment
PC commented that §122.704 allows for submittal of untimely CAM applications.
CAM applications are required to be submitted in accordance with 40 CFR §64.5.
In addition to CAM, all operating permits are required to include monitoring
sufficient to assure compliance.
Response
The commission does not change the rule in response to this comment. The
executive director is implementing CAM and periodic monitoring through a phased
approach based on permit issuance and SIC codes. The commission considered
several factors when developing the schedule for application due dates. Due
to the technical requirements in 40 CFR Part 64, compliance with CAM and periodic
monitoring may require permit holders to purchase and install new equipment
or conduct performance testing. The application submittal schedule should
allow permit holders a reasonable amount of time to budget for, purchase,
install, and test equipment necessary to comply with CAM and periodic monitoring
requirements. Furthermore, the schedule allows the executive director time
to develop comprehensive monitoring options for inclusion in various CAM and
periodic monitoring GOPs issued over time. Finally, under the schedule, permit
holders will submit applications to the executive director in manageable numbers
throughout each calendar year. The executive director will be able to review
these applications in a more timely fashion than if all applications were
due at the same time.
Comment
PC commented that a deviation limit is a very significant permit condition
that should not be determined outside the public participation process and
must be established in accordance with §64.3(d).
Response
The commission does not change the rule in response to this comment. Some
monitoring options contained in a CAM GOP may have a deviation limit established
in the CAM GOP. If this is not the case, the permit holder will submit a proposed
deviation limit and supporting justification for approval by the executive
director in accordance with §122.706(a)(1)(E). The deviation limit will
be based on information about the specific operation of the control device
and emission unit. As specified in §122.706(a)(3), the permit holder
will typically use performance testing, engineering calculations, historical
data, and manufacturer's recommendations to justify the proposed deviation
limit. However, the CAM GOP may more specifically define the approach for
justifying the deviation limit or provide alternatives to those specified
in Subchapter H. In addition, 40 CFR §64.6(c)(1) specifies what monitoring
needs to be codified in permit terms and conditions. Title 40 CFR §64.6(c)(1)
states that the permit shall contain, at a minimum, the following: the indicator(s)
to be monitored, the means or device to measure the indicator, and the performance
requirements established to satisfy 40 CFR §64.3(b) and (d). Neither
40 CFR §64.3(b) or (d) contain indicator ranges or deviation limits,
and the inclusion of the deviation limit is not required to be incorporated
into the permit by 40 CFR §64.6.
Comment
PC commented that the phrase "Unless otherwise approved by the executive
director," should be deleted from §122.706(a)(4) for consistency with
40 CFR §64.3, which requires that CEMS, COMS or PEMS be used. PC also
commented that the phrase "Unless otherwise approved by the executive director,"
should be deleted from §122.714(b), Compliance Assurance Monitoring Requirements
in Permits and General Operating Permit Applications, for consistency with
40 CFR §64.3(d), which requires that CEMS, COMS, or PEMS be used.
Response
The commission does not change the rule in response to this comment. As
required by 40 CFR §64.3(d)(1), §122.706(a)(4) specifies that owners
or operators of emission units subject to applicable requirements that require
continuous emission monitoring systems (CEMS), continuous opacity monitoring
systems (COMS), or predictive emission monitoring systems (PEMS) must submit
a CAM GOP monitoring option that includes the use of the CEMS, COMS, or PEMS
to satisfy CAM requirements for the other emission limitations or standards
that are subject to CAM for that particular emission unit. Since Subchapter
H applies on a pollutant-by- pollutant basis, this requirement also applies
on a pollutant-by-pollutant basis. For example, a nitrogen oxides (NO
Comment
PC commented that the CAM GOP provided in §122.710 does not include
the elements required by 40 CFR §64.4 or §64.6.
Response
The commission does not change the rule in response to this comment. The
CAM GOP will include a list of emission limitations or standards that are
subject to Subchapter H. Monitoring options established by the executive director
to satisfy CAM will be associated with each emission limitation or standard.
In addition, a CAM GOP will be subject to public notice, affected state review,
notice and comment hearing (if requested), EPA review, and public petition
as are all GOPs when initially issued. The monitoring option from the CAM
GOP will then be incorporated into the traditional GOP or SOP. Therefore,
the commission believes that the CAM GOP in combination with a traditional
GOP or a SOP meets all the permit content requirements.
Comment
PC commented that §122.716, Compliance Assurance Monitoring Quality
Improvement Plans, should provide that operating permits may specify an appropriate
threshold for requiring the implementation of a quality improvement plan (QIP).
The QIP should include the requirements listed in 40 CFR §64.8.
Response
The commission did not propose amendments to the section identified by
the commenter; therefore, under Texas administrative law, the section cannot
be amended at this adoption. Section 122.716 provides the executive director
the authority to require permit holders to implement quality improvement plans
(QIPs). Title 40 CFR §64.8 establishes that QIPs are optional, at the
permitting authorities' discretion. The commission chose to establish QIPs
on a "case-by-case" basis, as appropriate. A QIP may be required based on
the frequency of deviations, the cause of deviations, the magnitude of deviations,
the permit holder's response to deviations, or other information that indicates
that the emission unit or control device is not being maintained and operated
consistently with good air pollution control practices. The data to evaluate
these criteria will be collected from deviation reports, compliance certifications,
site inspections, and any other appropriate sources. Nothing in this section
is intended to limit the commission's options for taking other enforcement
action. Since QIPs are optional, at the permitting authorities' discretion,
the commission does not believe this section needs to be revised.
Comment
PC commented that the commission should ensure that every file from which
confidential information is withheld contains a clearly recognizable notice
to the public that such information has been withheld and review the substance
for confidentiality claims.
Response
The commission maintains a records retention and management system to address
statutory requirements for public records, open records requests and confidentiality
of records, including requirements under the Public Information Act. Public
notice authorization packets sent to instruct an applicant on how to properly
publish notice for a draft operating permit state that if the application
is submitted to the TNRCC with information marked as confidential, the applicant
is required to indicate which specific portions of the application are not
being made available to the public. These portions of the application must
be accompanied with the following statement: "Any request for portions of
this application that are marked as confidential must be submitted in writing,
pursuant to the Public Information Act, to the TNRCC Public Information Coordinator
(MC 197), P. O. Box 13087, Austin, Texas 78711-3087." The commission's procedures
include handling permit data and files in the same manner as specified above.
So far, the commission is unaware of any open records request for an operating
permit application that contained any confidential data. The commission has
informed applicants that the whole operating permit application cannot be
considered confidential and that data needed to determine which applicable
requirements apply to the site are also not confidential. As discussed in
a previous comment, the commission is obligated to address claims of confidential
information consistent with the Texas Government Code, Title 5, Chapter 552,
regarding public information and exceptions from required disclosure and THSC, §382.041
regarding confidential information.
Comment
QLEP and 118 individuals commented that the commission's rules should be
amended to allow credible evidence of violations, including evidence gathered
by citizens, to be used to prove air pollution violations and that the commission
drafts operating permits so polluters can ignore citizen gathered evidence.
NFN also requested that the agency recognize credible evidence gathered by
responsible citizens whom Title V seeks to protect. PC commented that citizen
gathered evidence is excluded form enforcement actions and requested the commission
to amend 122 to specifically acknowledge that any credible evidence may be
used to demonstrate a violation at a Title V facility. If citizens come up
with credible evidence that there have been violations at a facility, the
commission should be required to consider that evidence. PC also noted that
public participation is crucial to the success of the operating permit program.
The TNRCC cannot be everywhere at once, and citizens often have more information
regarding facilities in their communities than the TNRCC does. The participation
of those citizens in ensuring that all applicable requirements are included
in permits and that facilities are complying with those requirements is essential.
An individual also commented on the commission's inability to gather, accept,
recognize and act upon credible evidence to prove air pollution violations,
including evidence gathered by its own employees, as well as citizens. Further,
EEP commented that Title V provides for the use of any credible evidence to
prove violations, that evidence gathered by members of the public should be
used in enforcement actions, and that such citizens should be thanked and
encouraged by the commission. (An example was given that if opacity is monitored
on a continuous basis, such monitoring is legitimate evidence of an opacity
violation. You can't be limited to visual inspection by the operator of the
facility.) The fact that the commission does not recognize this evidence damages
the credibility of the commission. Title V rules should be amended, and operating
permits should be written, to allow the use of all credible evidence, regardless
of how it is collected.
Response
The commenters have raised two different, but related issues: the use of
credible evidence in demonstrating compliance with Title V requirements and
the use of credible evidence to prove the existence of a violation in an enforcement
action. With regard to the Title V issues, the commission's rules do not prevent
the consideration of any credible evidence to determine compliance with a
Title V permit, including instances where the commission receives that information
from citizens. The commission's regional offices are charged with reviewing
Title V certifications and may include consideration of all credible evidence
in evaluating certifications of compliance. The commission has preferred using
evidence obtained by commission staff because they are trained to collect
evidence in accordance with standard and legal methods and to handle that
evidence properly to preserve the chain of custody. These standards of collection
and handling are established to protect objectivity. Whether the evidence
is collected by the commission or by citizens, the information to be used
as credible evidence must meet Texas Rules of Evidence before the commission
can use it as the basis for, or as a component of, decisions related to compliance
or non-compliance. The commission is currently developing guidance concerning
the use of evidence obtained from sources outside the commission and the criteria
that must be met for the evidence to be considered in making decisions related
to compliance. Once issued, the guidance will be consistent with any Texas
legislation currently being considered that deals with credible evidence.
Comment
QLEP and 118 individuals commented that the commission's rules do not protect
citizen's right to breathe clean air, the rules contain loopholes that allow
facilities to illegally avoid pollution limits and penalties through claims
of grandfathering, upsets and audit privilege and that it will be impossible
to clean Texas' air until the commission closes these loopholes. Further,
the commission's Title V rules should ensure that facilities are required
to comply with every applicable requirement and that enforcement action is
taken against facilities that do not comply. NFN commented that exemptions
such as grandfathering, upsets and audit privilege laws, combined with the
agency's failure to conduct meaningful investigations of whether the privilege
of such exemptions is merited, allow emissions in excess of permit limits
with no real threat of enforcement. Also, there is no assurance that a previously
exempted facility will come under real scrutiny in advance of, or in connection
with or after the permitting process. PC concurred and added that these loopholes
prevent the commission from having the enforcement authority required by 40
CFR §70.11. Grandfathering should be eliminated altogether or, at the
very least, operating permits should be used as a tool to ensure that facilities
do not falsely claim grandfathered status and, thereby, avoid pollution control
requirements. Because the commission is granting negative applicability permit
shields, it is especially important that the commission does not wrongly allow
facilities to claim grandfathered status. To be consistent with Part 70, Chapter
122 should specify that applications must include a detailed explanation of
how the facility qualifies for any exemption claimed and documented to support
that explanation. Also, operating permits should also contain an explanation
for any exemption from applicable requirements. Also, the commission is not
actually examining whether or not the facility qualifies for an exemption
and is not including any such explanation in permits, as required by Part
70. The commission should require permits to contain a detailed explanation
of how the facility complies with each of the requirements of the exemption
and the facility should be required to certify in its annual compliance certification
whether or not it continues to meet each of the requirements for the exemption.
The commission should not have the authority to issue permit shields unless
its rules have procedures to ensure that facilities are not illegally claiming
exemptions. NFN also expressed concern with grandfathered facilities and the
possibility of a negative applicability permit shield as a result of a meaningless
permit application review. Another individual commented that grandfather clauses
and expecting companies to police themselves in an effort to clean up the
environment will never adequately provide a healthy environment. Monetary
penalties for failure to act or shutting down those who fail to comply with
clean air acts will aid in providing air that is fit to breathe.
PC commented that the Texas Environmental, Health, and Safety Audit Privilege
Act (the Act) prevents the commission from having adequate authority to enforce
the requirements of Title V permits. This is contrary to §502(b)(5) of
Title V, which requires that states have the authority to enforce the terms
and conditions of operating permits. The Act is broad and allows facilities
to claim audit privilege exemptions for a wide range of violations, thereby
avoiding penalties or injunctive relief. Further, the Act prevents inspectors
from having access to information they need to determine a facility's compliance
history and even provides special penalties for commission staff, and anyone
else, who discloses information that is privileged under the Act. The Act
does not adequately prevent claims of immunity by repeat or continuous violators;
facilities that benefit economically from their violations and have economic
incentive to violate; facilities whose violations cause injuries or the risk
of injuries. It appears that the Act is being abused by facilities that perform
audits not to discover unknown violations, but to gain immunity for violations
they for which they are already aware. PC commented that the rules should
clearly state that the self reported notices of violation pursuant to the
Act must be included with deviation reports.
Response
The commission disagrees with the commenters and believes its rules protect
air quality and public health. Grandfathered facilities are exempt only from
the requirement to obtain a preconstruction permit. They are not exempt from
the emission rates and other restrictions on emissions of air contaminants
contained in the commission's rules and state implementation plans. The commission
does not currently have the authority to require grandfathered facilities
to obtain a state NSR permit. The commission does not intend to grant permit
shields for NSR requirements.
The commission recognizes that upsets at industrial facilities can cause
the release of significant amounts of air contaminants over restrictions in
permits or rules. The commission also recognizes that upsets occur despite
the exercise of good operating practices by a facility owner or operator.
The commission believes a procedure should exist for exempting upset emissions
from enforcement provided that procedure requires that the owner or operator
demonstrate that the upset was unavoidable and that he or she took prompt
corrective action. The commission's rules provide this procedure and require
that the event not be the result of improper design, maintenance, or operation.
The commission also requires that logs of corrective action be kept and that
upsets not be part of a recurring pattern in order to qualify for an exemption
from enforcement. The commission has previously explained how the criteria
it uses to exempt upsets from enforcement is equivalent to the procedures
identified in Part 70.
The Audit Privilege Act (the Act) provides incentives for facility owners
or operators to conduct a self audit. The intent of the audit is to identify
emission units and other facility operations that are in violation of permits,
laws, and commission rules. Disclosure under the Act only provides immunity
from penalties if all of the statutory requirements are met, not immunity
from enforcement, up to and including injunctive relief if necessary. The
Act specifically excludes immunity for violations that result in injury or
imminent and substantial risk of injury, violations that result in substantial
economic benefit to the entity, and repeated violations that constitute a
pattern of disregard of environmental laws. Additionally, immunity is conditioned
upon correction of all violations. Failure to complete corrective action in
accordance with a compliance schedule would be grounds for another enforcement
action that would carry penalties. All disclosures of violations, notices
of violations, and commission orders are part of a company's compliance record
regardless of how the violations were disclosed. The Act does not limit an
investigator's ability to inspect a facility. Pursuant to the Act, all documents,
data, and reports required by the commission to be collected, developed, maintained,
or reported under a federal or state law are not privileged. The commission
believes this Act provides an incentive for owners and operators to identify
and correct violations more quickly than would otherwise occur. Violations
disclosed under the Act are deviations. Section 122.145(2)(A) requires all
deviations to be reported.
In the June 25, 1996 EPA notice, the EPA commented that the commission
would have to demonstrate that the passage of Texas HB 2473 (1995), the Texas
Environmental, Health and Safety Audit Privilege Act does not limit the commission's
ability to adequately administer and enforce the federal operating permit
program.
EPA and the commission negotiated a set of technical amendments to the
Act with the purpose of removing any barriers to state assumption of federal
programs. The 75th Texas Legislature enacted Texas HB 3459 (1997) to adopt
the amendments agreed upon without any other significant changes in the law.
The amendments to the Act have been in effect since September 1, 1997, and
the commission implements the Act consistent with the intent of the legislation
and the agreement with EPA. EPA has agreed to conclude that the commission
retains adequate authority to enforce the requirements of any authorized or
delegated program.
Comment
PC commented that the operating permit program should provide members of
certain environmental groups with access to monitoring and reporting data
and enable them to be active participants in ensuring that facilities in Texas
comply with air pollution requirements.
Response
Monitoring and reporting data is supplied to the commission and is a public
record. Any member of the public can request to review that data.
Comment
NFN, while commenting on the operating permit program, also expressed specific
concerns with ALCOA. Similarly, QLEP expressed concerns with Jobe Concrete
and encouraged the commission to amend the Title V rules to protect and give
equal protection to breathe clean air to all neighborhoods.
Response
The ALCOA and Jobe Concrete permit applications will be processed under
the commission's adopted rules. However, the specific compliance status of
any site is independent of this rulemaking and, therefore, will not be discussed
here.
Comment
Sierra commented that the proposed rules do not consider Title VI of the
1964 Civil Rights Act and the environmental justice implications of that statute.
Although the EPA did not require anything in the state rules for Title V,
Sierra requests the commission to consider the incorporation of environmental
justice concerns into Chapter 122. The fact that there may be circumstances
with chronic violators raises issues of violation of Title VI of the 1964
Civil Rights Act because the commission is a recipient of federal funding
and, therefore, it is required by federal law in its own rules and regulations
to comply with Title VI. Sierra thinks that a lot of the staff people are
very aware of the fact that Texas has a lot of communities of color. Not all
live on the fence lines of big industrials sources, but Title VI does raise
this concern about disproportionate impacts, cumulative impacts, and that
operating permits provide an opportunity for these kinds of issues to be addressed
because, otherwise, it would be inconsistent and a violation of Title VI of
the 1964 Civil Rights Act. There are also a number of outstanding Title VI
administrative civil rights complaints that are pending and involve allegations
that the agency has not fully complied with Title VI. Therefore, Title V of
the FOP program does offer an opportunity for the agency to do the right thing.
Response
The commission does not believe the rule needs to be changed to incorporate
Title VI issues in response to this comment but wishes to clarify how it addresses
complaints under Title VI of the 1964 Civil Rights Act. It is important to
note that all Title VI complaints challenging the issuance of a permit are
formally filed with and investigated by the EPA. In addition, any person may
submit comments regarding Title VI issues on any operating permit application
during the public comment period.
Any violation of an applicable requirement contained in an operating permit
is grounds for enforcement action, regardless of whether or not there is a
violation under Title VI of the 1964 Civil Rights Act. The commission's rules
require compliance by the regulated facilities without regard to the ethnic
makeup of the community. The commission believes its rules protect air quality
and public health.
The FOP program will incorporate all applicable requirements for federal
sources into one permit so that the permit holder is aware of all regulations
that govern the operation of a site. FOPs are issued based on the accuracy
and completeness of the application and whether the application ensures compliance
with all applicable requirements. The commission implements these requirements
through Chapter 122. FCAA, Title V requires permits to assure compliance with
all applicable requirements and does not provide for the denial of a permit
based on a complaint under the 1964 Civil Rights Act, Title VI.
Nonetheless, all environmental justice issues (including Title VI complaints)
are addressed by the Environmental Equity Program within the Office of Public
Assistance (OPA). The goals of the Environmental Equity Program are to thoroughly
consider all citizens' concerns and handle them fairly. This is accomplished
by seeking to: 1.) determine the nature of the problem or concern; 2.) identify
the principal parties affected; 3.) provide opportunities for input by all
interested parties; 4.) develop a plan of intervention or mediation; 5.) establish
effective communication among all parties; 6.) educate affected parties about
all sides of the issue; and 7.) negotiate or mediate mutually acceptable solutions.
The commission believes that addressing problems in the early stages can keep
the issue from escalating into more confrontational situations such as class
action lawsuits or Title VI complaints. The commission further believes early
intervention promotes a spirit of cooperation and often saves everyone money
and time.
Comment
TCE submitted a report on the TNRCC citizen complaint process, completed
by Public Research Works, and made the following comments. The citizen complaint
process is seriously flawed and changes can be incorporated into the operating
permit program. Citizens have difficulty in finding out to whom complaints
should be submitted. In 1999, the legislature required the commission to have
a toll-free number, but it is not listed on the homepage or citizen page of
the TNRCC website. It was pointed out to the agency in August, 2000, and it
still has not changed, indicating that it was not just an oversight. Citizens,
unlike facilities that get investigated, do not get adequate information about
the complaint process. Most people (75%) do not get a written response from
the commission as to what happened with their complaints. This is true for
written complaints as well, which are required by law to receive a written
response.
Response
The report referenced by the commenter does not relate directly to this
rulemaking but has been sent to the appropriate internal division of the commission.
The commission did establish a toll-free number to register complaints as
required by the legislature and made it available on commission's website
at
www.tnrcc.state.tx.us/enforcement/complaints.html
.
Comment
TCE commented that the commission is required to keep a record of all complaints
that it receives, however numerous examples have been found where the commission
did not record complaints. TCE stated that this occurred when over 3,000 signed
affidavits that were submitted to the Odessa regional office were never recorded
in the database, falsely showing that the number of complaints in the state
is declining. Also, in Harlingen, citizens were actually being dissuaded from
filing complaints. Staff first accused them of being fellow community members
instigating calls, then explained that further complaints would just slow
the process down. When three nuisance violations for a similar problem within
five years yields automatic enforcement action, it is critical that citizen's
complaints not only be recorded, but be investigated promptly so that problems
can be dealt with through automatic enforcement actions. They were told by
the commission and other air pollution officials that, in many cases, the
only way the agency learns of air pollution problems may be from citizen complaints.
The agency also does not investigate complaints promptly, has an unfair rating
system to address complaints, and some complaints were not given the correct
rating or were not an accurate indicator of problems. This ranking system
should be done away with and the commission should just go out and investigate
complaints as quickly as they come in like other agencies do.
Response
The commission sets a priority on complaints so that the most potentially
serious are addressed first, but all complaints are recorded and investigated
in accordance with commission procedures.
These procedures are not addressed through this rulemaking.
Comment
TCE commented that examples were found where clear violations of air pollution
laws were not given violations and made the following comments. Facilities
operating without a permit for up to a year still continue to operate. They
stated that an investigator, in response to a complaint, left a citizen's
property noticing no odor because the wind had shifted. The inspector then
went to the facility and had to leave because the odor was so strong, but
the complaint was written up as no violations occurred. They believe the commission
must change its policies so that an investigator's experience of noxious odors
is enough to write violations, and that if the wind has shifted, every effort
is made to have a complainant go to the place where the wind has shifted so
that violations can be noted, that it does not necessarily have to continue
to be on their property. TCE also commented that investigations are flawed
because they do not occur 24 hours a day, seven days a week, as the controller
recommended in 1990. TCE specifically noted photographs and videos of parents
in Lakeway trying to protect their children from being sprayed with sewage
were ignored by the commission's staff. Further, they stated the commission's
staff would not meet with the parents until a governor's staffer was contacted
and got involved to schedule the meeting.
Response
The report and individual circumstances referenced by the commenter are
issues that are addressed through the internal policies of the commission
and are not addressed in this rulemaking. The report will be made available
to the Field Operations Division to determine if any changes to policy and
procedures are needed.
Comment
SEED Coalition supported comments submitted by the EEP, PC, Sierra, TCE,
and NFN and added concerns from a citizen activist perspective. No one knows
about operating permits; they don't know what they are, and they've never
heard of them. This contrasts with industries that are rapidly submitting
operating permit applications before citizens can even find out about the
process itself.
Response
The commission does not change the rule in response to these comments.
Interested groups can contact the commission or the EPA concerning participation
and outreach programs. The commission currently provides outreach through
its website and, in response to this comment, intends to develop and publish
a basic overview of the operating permit program, along with a diagram that
identifies the opportunities for public participation in the operating permit
process. The commission also notes that its Office of Public Assistance website
currently contains contact information for individuals who seek information
about agency permits, the permitting process, and public participation opportunities.
Public notice requirements for operating permits exceed Part 70 notice requirements.
For example, operating permit public notice requires a sign posting and bilingual
public notice which is not required by Part 70.
Subchapter A. DEFINITIONS
30 TAC §122.10
STATUTORY AUTHORITY
The amendment is adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.10.General Definitions.
The definitions in the Texas Clean Air Act, Chapter 101 of this title
(relating to General Air Quality Rules), and Chapter 3 of this title (relating
to Definitions) apply to this chapter. In addition, the following words and
terms, when used in this chapter, shall have the following meanings, unless
the context clearly indicates otherwise.
(1)
Air pollutant--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 (NAAQS) has been promulgated;
(D)
any pollutant that is subject to any standard promulgated
under FCAA, §111 (Standards of Performance for New Stationary Sources);
(E)
unless otherwise specified by the EPA by rule, any Class
I or II substance subject to a standard promulgated under or established by
FCAA, Title VI (Stratospheric Ozone Protection); or
(F)
any pollutant subject to a standard promulgated under FCAA, §112
(Hazardous Air Pollutants) or other requirements established under §112,
including §112(g), (j), and (r) including any of the following:
(i)
any pollutant subject to requirements under FCAA, §112(j).
If the EPA fails to promulgate a standard by the date established pursuant
to FCAA, §112(e), any pollutant for which a subject site would be major
shall be considered to be regulated on the date 18 months after the applicable
date established pursuant to FCAA, §112(e); and
(ii)
any pollutant for which the requirements of FCAA, §112(g)(2)
have been met, but only with respect to the individual site subject to the
FCAA, §112(g)(2) requirement.
(2)
Applicable requirement--All of the following requirements,
including requirements that have been promulgated or approved by the EPA through
rulemaking at the time of issuance but have future- effective compliance dates:
(A)
All of the requirements of Chapter 111 of this title (relating
to Control of Air Pollution From Visible Emissions and Particulate Matter)
as they apply to the emission units at a site.
(B)
All of the requirements of Chapter 112 of this title (relating
to Sulfur Compounds) as they apply to the emission units at a site.
(C)
All of the requirements of Chapter 113 of this title (relating
to Control of Air Pollution from Toxic Materials), as they apply to the emission
units at a site.
(D)
All of the requirements of Chapter 115 of this title (relating
to Control of Air Pollution from Volatile Organic Compounds) as they apply
to the emission units at a site.
(E)
All of the requirements of Chapter 117 of this title (relating
to Control of Air Pollution From Nitrogen Compounds) as they apply to the
emission units at a site.
(F)
All of the requirements under Chapter 101, Subchapter H
of this title (relating to Emissions Banking and Trading) as they apply to
the emission units at a site.
(G)
Any site specific requirement of the state implementation
plan (SIP).
(H)
All of the requirements under Chapter 106, Subchapter A
of this title (relating to Permits by Rule), or Chapter 116 of this title
(relating to Control of Air Pollution by Permits for New Construction or Modification)
and any term or condition of any preconstruction permit.
(I)
All of the following federal requirements as they apply
to the emission units at a site:
(i)
any standard or other requirement under FCAA, §111
(Standards of Performance for New Stationary Sources);
(ii)
any standard or other requirement under FCAA, §112
(Hazardous Air Pollutants);
(iii)
any standard or other requirement of the Acid Rain Program;
(iv)
any requirements established under FCAA, §504(b)
or §114(a)(3) (Monitoring and Analysis or Inspections, Monitoring, and
Entry);
(v)
any standard or other requirement governing solid waste
incineration under FCAA, §129 (Solid Waste Combustion);
(vi)
any standard or other requirement for consumer and commercial
products under FCAA, §183(e) (Federal Ozone Measures);
(vii)
any standard or other requirement under FCAA, §183(f)
(Tank Vessel Standards);
(viii)
any standard or other requirement under FCAA, §328
(Air Pollution from Outer Continental Shelf Activities);
(ix)
any standard or other requirement under FCAA, Title VI
(Stratospheric Ozone Protection), unless EPA has determined that the requirement
need not be contained in a permit; and
(x)
any increment or visibility requirement under FCAA, Title
I, Part C or any NAAQS, but only as it would apply to temporary sources permitted
under FCAA, §504(e) (Temporary Sources).
(J)
The following are not applicable requirements under this
chapter, except as noted in subparagraph (I)(x) of this paragraph:
(i)
any state or federal ambient air quality standard;
(ii)
any net ground level concentration limit;
(iii)
any ambient atmospheric concentration limit;
(iv)
any requirement for mobile sources;
(v)
any asbestos demolition or renovation requirement under
40 Code of Federal Regulations (CFR) Part 61, Subpart M (National Emissions
Standards for Asbestos);
(vi)
any requirement under 40 CFR Part 60, Subpart AAA (Standards
of Performance for New Residential Wood Heaters); and
(vii)
any state only requirement (including §111.131 of
this title (relating to Definitions), §111.133 of this title (relating
to Testing Requirements), §111.135 of this title (relating to Control
Requirements for Surfaces with Coatings Containing Lead), §111.137 of
this title (relating to Control Requirements for Surface Coatings containing
less than 1.0% Lead), and §111.139 of this title (relating to Exemptions).
(3)
Compliance assurance monitoring (CAM) case-by-case determination--A
monitoring plan designed by the permit holder and approved by the executive
director to satisfy 40 CFR Part 64 (Compliance Assurance Monitoring).
(4)
Compliance assurance monitoring general operating permit
(CAM GOP)--A GOP issued under Subchapter F of this chapter (relating to General
Operating Permits) which provides monitoring options established by the executive
director to satisfy Subchapter H of this chapter (relating to Compliance Assurance
Monitoring).
(5)
Continuous compliance determination method--For purposes
of Subchapter H of this chapter and Subchapter G of this chapter (relating
to Periodic Monitoring), a method, specified by an applicable requirement,
which satisfies the following criteria:
(A)
the method is used to determine compliance with an emission
limitation or standard on a continuous basis consistent with the averaging
period established for the emission limitation or standard; and
(B)
the method provides data either in units of the emission
limitation or standard or correlated directly with the emission limitation
or standard.
(6)
Control device--For the purposes of Subchapter H of this
chapter, equipment that is used to destroy or remove air pollutant(s) prior
to discharge to the atmosphere.
(A)
A control device does not include the following:
(i)
passive control measures that act to prevent pollutants
from forming, such as the use of seals, lids, or roofs to prevent the release
of pollutants, use of low-polluting fuel or feedstocks, or the use of combustion
or other process design features or characteristics; or
(ii)
inherent process equipment, which is equipment that is
necessary for the proper or safe functioning of the process, or material recovery
equipment that is installed and operated primarily for purposes other than
compliance with applicable requirements. Equipment that must be operated at
an efficiency higher than that achieved during normal process operations in
order to comply with the applicable emission limitation or standard is not
inherent process equipment.
(B)
If an applicable requirement establishes that particular
equipment which otherwise meets this definition of a control device does not
constitute a control device as applied to a particular emission unit, then
that definition shall apply for purposes of Subchapter H of this chapter.
(7)
Deviation--Any indication of noncompliance with a term
or condition of the permit as found using, at a minimum, but not limited to,
compliance method data from monitoring, recordkeeping, reporting, or testing
required by the permit.
(8)
Deviation limit--A designated value(s) or condition(s)
which establishes the boundary for an indicator of performance. Operation
outside of the boundary of the indicator of performance shall be considered
a deviation.
(9)
Draft permit--The version of a permit available for the
30-day comment period under public announcement or public notice and affected
state review. The draft permit may be the same document as the proposed permit.
(10)
Emission unit--A discrete or identifiable structure, device,
item, equipment, or enclosure that constitutes or contains a point of origin
of air pollutants, including appurtenances.
(A)
A point of origin of fugitive emissions from individual
pieces of equipment, e.g., valves, flanges, pumps, and compressors, shall
not be considered an individual emission unit. The fugitive emissions shall
be collectively considered as an emission unit based on their relationship
to the associated process.
(B)
The term may also be used in this chapter to refer to a
group of similar emission units.
(C)
This term is not meant to alter or affect the definition
of the term "unit" for purposes of the acid rain program.
(11)
FCAA, §502(b)(10) changes--Changes that contravene
an express permit term. Such changes do not include changes that would violate
applicable requirements or contravene federally enforceable permit terms and
conditions that are monitoring (including test methods), recordkeeping, reporting,
or compliance certification requirements.
(12)
Final action--Issuance or denial of the permit by the
executive director.
(13)
General operating permit (GOP)--A permit issued under
Subchapter F of this chapter (relating to General Operating Permits), under
which multiple stationary sources may be authorized to operate.
(14)
Major source--
(A)
For pollutants other than radionuclides, any site that
emits or has the potential to emit, in the aggregate the following quantities:
(i)
ten tons per year (tpy) or more of any single hazardous
air pollutant listed under FCAA, §112(b) (Hazardous Air Pollutants);
(ii)
25 tpy or more of any combination of hazardous air pollutant
listed under FCAA, §112(b); or
(iii)
any quantity less than those identified in clause (i)
or (ii) of this subparagraph established by the EPA through rulemaking.
(B)
For radionuclides regulated under FCAA, §112, the
term "major source" shall have the meaning specified by the EPA by rule.
(C)
Any site which directly emits or has the potential to emit,
100 tpy or more of any air pollutant. 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 stationary source category regulated under FCAA, §111
(Standards of Performance for New Stationary Sources) or §112 for which
the EPA has made an affirmative determination under FCAA, §302(j) (Definitions).
(D)
Any site, except those exempted under FCAA, §182(f)
(NO
x
Requirements), which, in whole or in part,
is a major source under FCAA, Title I, Part D (Plan Requirements for Nonattainment
Areas), including the following:
(i)
any site with the potential to emit 100 tpy or more of
volatile organic compounds (VOC) or oxides of nitrogen (NO
x
) in any ozone nonattainment area classified as "marginal or moderate";
(ii)
any site with the potential to emit 50 tpy or more of
VOC or NO
x
in any ozone nonattainment area classified
as "serious";
(iii)
any site with the potential to emit 25 tpy or more of
VOC or NO
x
in any ozone nonattainment area classified
as "severe";
(iv)
any site with the potential to emit ten tpy or more of
VOC or NO
x
in any ozone nonattainment area classified
as "extreme";
(v)
any site with the potential to emit 100 tpy or more of
carbon monoxide (CO) in any CO nonattainment area classified as "moderate";
(vi)
any site with the potential to emit 50 tpy or more of
CO in any CO nonattainment area classified as "serious";
(vii)
any site with the potential to emit 100 tpy or more of
inhalable particulate matter (PM-10) in any PM-10 nonattainment area classified
as "moderate";
(viii)
any site with the potential to emit 70 tpy or more of
PM-10 in any PM-10 nonattainment area classified as "serious"; and
(ix)
any site with the potential to emit 100 tpy or more of
lead in any lead nonattainment area.
(E)
The fugitive emissions of a stationary source shall not
be considered in determining whether it is a major source under subparagraph
(D) of this paragraph, unless the stationary source belongs to one of the
categories of stationary sources listed in subparagraph (C) of this paragraph.
(F)
Any 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 or require a revision to the existing
permit at the site.
(G)
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 the units are in a contiguous area or under common control,
to determine whether the units or stations are major sources under subparagraph
(A) of this paragraph.
(15)
Notice and comment hearing--Any hearing held under this
chapter. Hearings held under this chapter are for the purpose of receiving
oral and written comments regarding draft permits.
(16)
Periodic monitoring case-by-case determination--A monitoring
plan designed by the permit holder and approved by the executive director
to satisfy §122.142(c) of this title (relating to Permit Content Requirements).
(17)
Periodic monitoring GOP--A GOP issued under Subchapter
F of this chapter which provides monitoring options established by the executive
director to satisfy Subchapter G of this chapter.
(18)
Permit or federal operating permit--
(A)
any permit, or group of permits covering a site, that is
issued, renewed, or revised under this chapter; or
(B)
any GOP, or group of GOPs, issued, renewed, or revised
by the executive director under this chapter. The term "permit" refers to
a CAM GOP or periodic monitoring GOP only when clearly indicated by the context.
(19)
Permit anniversary--The date that occurs every 12 months
after the initial permit issuance, the initial granting of the authorization
to operate, or renewal.
(20)
Permit application--An application for an initial permit,
permit revision, permit renewal, permit reopening, GOP, or any other similar
application as may be required.
(21)
Permit holder--A person who has been issued a permit or
granted the authority by the executive director to operate under a GOP.
(22)
Permit revision--Any administrative permit revision, minor
permit revision, or significant permit revision that meets the related requirements
of this chapter.
(23)
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 EPA. This term does not alter
or affect the use of this term for any other purposes under the FCAA, or the
term "capacity factor" as used in acid rain provisions of the FCAA or the
acid rain rules.
(24)
Preconstruction authorization--Any authorization to construct
or modify an existing facility or facilities under Chapter 106 and Chapter
116 of this title. In this chapter, references to preconstruction authorization
will also include the following:
(A)
any requirement established under FCAA, §112(g) (Modifications);
(B)
any requirement established under FCAA, §112(j) (Equivalent
Emission Limitation by Permit); and
(C)
where appropriate, any preconstruction authorization under
Chapter 120 of this title (relating to Control of Air Pollution from Hazardous
Waste or Solid Waste Management Facilities) (as effective until December 1996)
or Chapter 121 of this title (relating to Control of Air Pollution from Municipal
Solid Waste Management Facilities).
(25)
Predictive emission monitoring system (PEMS)--For purposes
of Subchapter H of this chapter, a system that uses process and other parameters
as inputs to a computer program or other data reduction system to produce
values in terms of the applicable emission limitation or standard.
(26)
Proposed permit--The version of a permit that the executive
director forwards to the EPA for a 45-day review period.
(27)
Provisional terms and conditions--Temporary terms and
conditions, established by the permit holder for an emission unit affected
by a change at a site, or the promulgation or adoption of an applicable requirement
or state-only requirement, under which the permit holder is authorized to
operate prior to a revision or renewal of a permit or prior to the granting
of a new authorization to operate.
(A)
Provisional terms and conditions will only apply to changes
not requiring prior approval by the executive director.
(B)
Provisional terms and conditions shall not authorize the
violation of any applicable requirement or state-only requirement.
(C)
Provisional terms and conditions shall be consistent with
and accurately incorporate the applicable requirements and state-only requirements.
(D)
Provisional terms and conditions for applicable requirements
and state-only requirements shall include the following:
(i)
the specific regulatory citations in each applicable requirement
or state-only requirement identifying the emission limitations and standards;
(ii)
the monitoring, recordkeeping, reporting, and testing
requirements associated with the emission limitations and standards identified
under clause (i) of this subparagraph; and
(iii)
where applicable, the specific regulatory citations identifying
any requirements that no longer apply.
(28)
Renewal--The process by which a permit or an authorization
to operate under a GOP is renewed at the end of its term under §§122.241,
122.501, or 122.505 of this title (relating to Permit Renewals; General Operating
Permits; or Renewal of the Authorization to Operate Under a General Operating
Permit).
(29)
Reopening--The process by which a permit is reopened for
cause and terminated or revised under §122.231 of this title (relating
to Permit Reopenings).
(30)
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). A research and development
(R&D) operation and a collocated manufacturing facility shall be considered
a single site if they each have the same two-digit Major Group Standard Industrial
Classification (SIC) code (as described in the Standard Industrial Classification
Manual, 1987) or the R&D operation is a support facility for the manufacturing
facility.
(31)
State-only requirement--Any requirement governing the
emission of air pollutants from stationary sources that may be codified in
the permit at the discretion of the executive director. State- only requirements
shall not include any requirement required under the FCAA or under any applicable
requirement.
(32)
Stationary source--Any building, structure, facility,
or installation that emits or may emit any air pollutant. Nonroad engines,
as defined in 40 CFR Part 89 (Control of Emissions from New and In-use Nonroad
Engines), shall not be considered stationary sources for the purposes of this
chapter.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on May 14, 2001.
TRD-200102666
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
1.
GENERAL REQUIREMENTS
30 TAC §122.120
STATUTORY AUTHORITY
The amendment is adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.120.Applicability.
(a)
Except as identified in subsection (b) of this section,
owners and operators of one or more of the following are subject to the requirements
of this chapter:
(1)
any site that is a major source as defined in §122.10
of this title (relating to General Definitions);
(2)
any site with an affected unit as defined in 40 CFR 72
subject to the requirements of the Acid Rain Program;
(3)
any solid waste incineration unit required to obtain a
permit under FCAA, §129(e) (relating to Solid Waste Combustion); or
(4)
any site that is a non-major source which the EPA, through
rulemaking, has designated as no longer exempt or no longer eligible for a
deferral from the obligation to obtain a permit. For the purposes of this
chapter, those sources may be any of the following:
(A)
any non-major source so designated by the EPA, and subject
to a standard, limitation, or other requirement under FCAA, §111 (relating
to Standards of Performance for New Stationary Sources);
(B)
any non-major source so designated by the EPA, and subject
to a standard or other requirement under FCAA, §112 (relating to Hazardous
Air Pollutants), except for FCAA, §112(r) (relating to Prevention of
Accidental Releases); or
(C)
any non-major source in a source category designated by
the EPA.
(b)
The following are not subject to the requirements of this
chapter:
(1)
any site that is a non-major source which the EPA, through
rulemaking, has designated as exempt from the obligation to obtain a permit.
(2)
any site that is a non-major source which the EPA has allowed
permitting authorities to defer from the obligation to obtain a permit.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on May 14, 2001.
TRD-200102667
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
30 TAC §§122.130 - 122.132, 122.134, 122.136, 122.139, 122.140
STATUTORY AUTHORITY
The amendments are adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.132.Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits.
(a)
A permit application shall provide any information, including
confidential information as addressed in Chapter 1 of this title (relating
to Purpose of Rules, General Provisions), required by the executive director
to determine the applicability of, or to codify, any applicable requirement
or state-only requirement.
(b)
An application for a general operating permit shall only
be required to provide the information necessary to determine qualification
for, and to assure compliance with, the general operating permit.
(c)
An applicant may submit an abbreviated initial permit application,
containing only the information in this section deemed necessary by the executive
director. The abbreviated application shall include at a minimum, a general
application form containing identifying information regarding the site and
the applicant and a certification by a responsible official. The executive
director shall inform the applicant in writing of the deadline for submitting
the remaining information.
(d)
An application for a site qualifying under §122.131
of this title (relating to Phased Permit Detail) may be submitted under the
phased permit detail process.
(e)
An application shall include, but is not limited to, the
following information:
(1)
a general application form and all information requested
by that form;
(2)
for each emission unit, information regarding the general
applicability determinations, which includes the following:
(A)
the general identification of each potentially applicable
requirement and potentially applicable state-only requirement (e.g., NSPS
Kb);
(B)
the applicability determination for each requirement identified
under subparagraph (A) of this paragraph; and
(C)
the basis for each determination made under subparagraph
(B) of this paragraph;
(3)
for each emission unit, except as provided in §122.131
of this title, information regarding the detailed applicability determinations,
which includes the following:
(A)
the specific regulatory citations in each applicable requirement
or state-only requirement identifying the following:
(i)
the emission limitations and standards; and
(ii)
the monitoring, recordkeeping, reporting, and testing
requirements associated with the emission limitations and standards identified
under clause (i) of this subparagraph;
(B)
the basis for each applicability determination identified
under subparagraph (A) of this paragraph;
(4)
a compliance plan including the following information:
(A)
the following statement: "As the responsible official it
is my intent that all emission units shall continue to be in compliance with
all applicable requirements they are currently in compliance with, and all
emission units shall be in compliance by the compliance dates with any applicable
requirements that become effective during the permit term.";
(B)
for all emission units addressed in the application, an
indication of the compliance status with respect to all applicable requirements,
based on, at a minimum, but not limited to, any compliance method specified
in the applicable requirements;
(C)
for any emission unit not in compliance with the applicable
requirements identified in the application, the following information:
(i)
the method used for assessing the compliance status of
the emission unit;
(ii)
a narrative description of how the emission unit will
come into compliance with all applicable requirements;
(iii)
a compliance schedule (resembling and at least as stringent
as any compliance schedule contained in any judicial consent decree or administrative
order to which the site is subject), including remedial measures to bring
the emission unit into compliance with the applicable requirements; which
shall be supplemental to, and shall not sanction noncompliance with, the applicable
requirements on which it is based; and
(iv)
a schedule for the submission, at least every six months
after issuance of the permit, of certified progress reports;
(5)
if applicable, information requested by the nationally-standardized
forms for the acid rain portions of permit applications, and compliance plans
required by the acid rain program;
(6)
if applicable, a statement certifying that a risk management
plan, or a schedule to submit a risk management plan has been submitted to
the appropriate agency in accordance with FCAA, §112(r)(7) (Prevention
of Accidental Releases);
(7)
for applicants electing the phased permit detail process
under §122.131 of this title, a proposed schedule for the incorporation
of the remaining detailed applicability determinations into the permit;
(8)
for applicants requesting a permit shield, any information
requested by the executive director in order to determine whether to grant
the shield;
(9)
a certification in accordance with §122.165 of this
title (relating to Certification by a Responsible Official);
(10)
fugitive emissions from an emission unit shall be included
in the permit application and the permit in the same manner as stack emissions,
regardless of whether the source category in question is included in the list
of sources contained in the definition of major source; and
(11)
for any application for which the executive director has
not authorized initiation of public notice by the effective date of this rule,
any preconstruction authorizations that are applicable to emission units at
the site .
(f)
The executive director shall make a copy of the permit
application accessible to the EPA.
(g)
An application may not omit information needed to determine
the applicability of, or to impose, any applicable requirement; however, any
facilities that meet the requirements of §116.119 of this title (relating
to De Minimis Facilities or Sources) are not required to be included in applications
unless the facilities or sources are subject to an applicable requirement.
§122.136.Application Deficiencies and Supplemental Information.
(a)
All applications submitted under this chapter are subject
to the requirements of this section.
(b)
If an applicant omits any relevant facts or submits incorrect
information in an application, the applicant shall submit the relevant facts
or correct the information no later than 60 days after discovering the error.
(c)
An applicant shall provide additional information as necessary
to address any applicable requirements or state-only requirements that become
applicable to the site after the date the applicant files a complete application
but prior to release of the draft permit. Such information is not required
to be submitted prior to the executive director's technical permit review
period.
(d)
If while processing an application, the executive director
determines that additional information is necessary to evaluate or take final
action on that application, the executive director may request the information
and set a reasonable deadline for a response.
§122.140.Representations in Application.
The only representations in a permit application that become conditions
under which a permit holder shall operate are the following:
(1)
representations in an acid rain permit application;
(2)
upon the granting of authorization to operate under a general
operating permit, applicability determinations and the bases for the determinations
in a general operating permit application;
(3)
upon the granting of the authorization to operate under
a CAM GOP or periodic monitoring GOP, the information specified in §122.714(a)
or §122.612 of this title (relating to Compliance Assurance Monitoring
Requirements in Permits and General Operating Permit Applications and Periodic
Monitoring Requirements in Permits and General Operating Permit Applications,
respectively), excluding the justification for those requirements; and
(4)
any representation in an application which is specified
in the permit as being a condition under which the permit holder shall operate.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on May 14, 2001.
TRD-200102668
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
30 TAC §§122.142, 122.143, 122.145, 122.146
STATUTORY AUTHORITY
The amendments are adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.142.Permit Content Requirements.
(a)
The conditions of the permit shall provide for compliance
with the requirements of this chapter.
(b)
Each permit issued under this chapter shall contain the
information required by this subsection.
(1)
Unless otherwise specified in the permit, each permit shall
include the terms and conditions in §§122.143 - 122.146 of this
title (relating to General Terms and Conditions; Recordkeeping Terms and Conditions;
Reporting Terms and Conditions; and Compliance Certification Terms and Conditions).
(2)
Each permit shall also contain specific terms and conditions
for each emission unit regarding the following:
(A)
the generally identified applicable requirements and state-only
requirements (e.g., NSPS Kb);
(B)
except as provided by the phased permit detail process,
the detailed applicability determinations, which include the following:
(i)
the specific regulatory citations in each applicable requirement
or state-only requirement identifying the emission limitations and standards;
and
(ii)
the monitoring, recordkeeping, reporting, and testing
requirements associated with the emission limitations and standards identified
under clause (i) of this subparagraph sufficient to ensure compliance with
the permit.
(3)
Each permit for which the executive director has not authorized
initiation of public notice by the effective date of this rule shall contain
any preconstruction authorization that is applicable to emission units at
the site.
(c)
Each permit shall contain periodic monitoring requirements,
as required by the executive director, that are designed to produce data that
are representative of the emission unit's compliance with the applicable requirements.
(d)
For permits undergoing the phased permit detail process,
the permit shall contain a schedule for phasing in the detailed applicability
determinations consistent with §122.131 of this title (relating to Phased
Permit Detail).
(e)
For emission units not in compliance with the applicable
requirements at the time of initial permit issuance or renewal, the permit
shall contain the following:
(1)
a compliance schedule or a reference to a compliance schedule
consistent with §122.132(e)(4)(C) of this title (relating to Application
and Required Information for Initial Permit Issuance, Reopening, Renewal,
or General Operating Permits); and
(2)
a requirement to submit progress reports consistent with §122.132(e)(4)(C)
of this title. The progress reports shall include the following information:
(A)
the dates for achieving the activities, milestones, or
compliance required in the compliance schedule;
(B)
dates when the activities, milestones, or compliance required
in the compliance schedule were achieved; and
(C)
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.
(f)
At the executive director's discretion, and upon request
by the applicant, the permit may contain a permit shield for specific emission
units.
(g)
Where an applicable requirement is more stringent than
a requirement under the acid rain program, both requirements shall be incorporated
into the permit and shall be enforceable requirements of the permit.
(h)
Permits shall contain compliance assurance monitoring as
specified in Subchapter H of this chapter (relating to Compliance Assurance
Monitoring).
§122.143.General Terms and Conditions.
Unless otherwise specified in the permit, the following general terms
and conditions shall become terms and conditions of each permit.
(1)
Compliance with the permit does not relieve the permit
holder of the obligation to comply with any other applicable rules, regulations,
or orders of the commission, or of the EPA, except for those requirements
addressed by a permit shield.
(2)
The term of the permit shall not exceed five years from
the date of initial issuance or renewal of the permit. The authorization to
operate under a general operating permit shall not exceed five years from
the date the authorization was granted or renewed.
(3)
Consistent with the authority in Texas Health and Safety
Code, Chapter 382, Subchapter B (Powers and Duties of Commission), the permit
holder shall allow representatives from the commission or the local air pollution
control program having jurisdiction to do the following:
(A)
enter upon the permit holder'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;
(B)
access and copy any records that must be kept under the
conditions of the permit;
(C)
inspect any emission unit, equipment, practices, or operations
regulated or required under the permit; and
(D)
sample or monitor substances or parameters for the purpose
of assuring compliance with the permit at any time.
(4)
The permit holder shall comply with all terms and conditions
codified in the permit and any provisional terms and conditions required to
be included with the permit. Except as provided for in paragraph (5) of this
section, any noncompliance with either the terms or conditions codified in
the permit or the provisional terms and conditions, if any, constitutes a
violation of the FCAA and the TCAA and is grounds for enforcement action;
permit termination, revocation and reissuance, or modification; or denial
of a permit renewal application. It shall not be a defense in an enforcement
action that it would have been necessary to halt or reduce the permitted activity
in order to comply with the permit terms and conditions of the permit.
(5)
The permit holder need not comply with the original terms
and conditions codified in the permit that have been replaced by provisional
terms and conditions before issuance or denial of a revision or renewal or
before the granting of a new authorization to operate.
(6)
In every case, the applicable requirements and state-only
requirements are always enforceable.
(7)
The permit may be reopened for cause and revised or terminated.
Permit terms or conditions remain enforceable regardless of the following:
(A)
the filing of a request by the permit holder for a permit
revision, reopening, or termination;
(B)
a notification of planned changes or anticipated noncompliance;
or
(C)
a notice of intent by the executive director for a permit
reopening or termination.
(8)
The executive director may request any information necessary
to determine compliance with the permit or whether cause exists for revising,
reopening, or terminating the permit. The permit holder shall submit the information
no later than 60 days after the request, unless the deadline is extended by
the executive director. Upon request, the permit holder shall also furnish
to the executive director copies of records required to be kept by the permit,
including information claimed to be confidential.
(9)
If a state-only requirement is determined by the commission
to be an applicable requirement, the permit holder shall submit an application
for a significant permit revision for the incorporation of the requirement
into the permit as an applicable requirement. The application shall be submitted
no later than 12 months after the determination by the commission that the
requirement is an applicable requirement.
(10)
The permit holder shall pay fees to the commission consistent
with the fee schedule in §101.27 of this title (relating to Emissions
Fees).
(11)
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.
(12)
The permit does not convey any property rights of any
sort, or any exclusive privilege.
(13)
A copy of the permit shall be maintained at the location
specified in the permit.
(14)
For general operating permits, a copy of the permit, the
enforceable general operating permit application, and the authorization to
operate shall be maintained at the location specified in the authorization
to operate.
(15)
Any report or annual compliance certification required
by a permit to be submitted to the executive director shall contain a certification
in accordance with §122.165 of this title (relating to Certification
by a Responsible Official).
(16)
Representations in acid rain applications and applicability
determinations, and the bases for the determinations in general operating
permit applications are conditions under which the permit holder shall operate.
Representations in general operating permit applications for CAM and periodic
monitoring, as specified in §122.140(3) of this title, are conditions
under which the permit holder shall operate.
(17)
No emissions from emission units addressed in the permit
shall exceed allowances lawfully held under the acid rain program.
(18)
State-only requirements will not be subject to any of
the following requirements of this chapter: public notice, affected state
review, notice and comment hearings, EPA review, public petition, recordkeeping,
six-month monitoring reporting, six-month deviation reporting, compliance
certification, or periodic monitoring.
§122.145.Reporting Terms and Conditions.
Unless otherwise specified in the permit, the following reporting requirements
shall become terms and conditions of the permit.
(1)
Monitoring reports.
(A)
Reports of monitoring data required to be submitted by
an applicable requirement, or by the permit, shall be submitted to the executive
director.
(B)
Reports shall be submitted for at least each six-month
period after permit issuance or at the frequency required by an applicable
requirement which requires more frequent reporting.
(C)
The monitoring reports shall be submitted no later than
30 days after the end of each reporting period.
(D)
The reporting of monitoring data does not change the data
collection requirements specified in an applicable requirement.
(2)
Deviation reports.
(A)
The permit holder shall report, in writing, to the executive
director all instances of deviations, the probable cause of the deviations,
and any corrective actions or preventative measures taken for each emission
unit addressed in the permit.
(B)
A deviation report shall be submitted for at least each
six-month period after permit issuance or at the frequency required by an
applicable requirement which requires more frequent reporting. However, no
report is required if no deviations occurred over the six-month reporting
period.
(C)
The deviation reports shall be submitted no later than
30 days after the end of each reporting period.
(D)
Reporting in accordance with §101.6 and §101.7
of this title (relating to Upset Reporting and Recordkeeping Requirements
and Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational
Requirements) does not substitute for reporting deviations under this paragraph.
§122.146.Compliance Certification Terms and Conditions.
Unless otherwise specified in the permit, the following compliance
certification requirements shall become terms and conditions of the permit.
(1)
The permit holder shall certify compliance with the terms
and conditions of the permit for at least each 12-month period following initial
permit issuance.
(2)
The certification shall be submitted to the executive director
and the EPA administrator no later than 30 days after the end of the certification
period.
(3)
The executive director shall make a copy of the compliance
certification accessible to the EPA.
(4)
The certification shall be based on at a minimum, but not
limited to, the monitoring method (or recordkeeping method, if appropriate)
required by the permit to be used to assess compliance. If necessary, the
permit holder shall identify any other material information that must be included
in the certification to comply with FCAA, §113(c)(2), which prohibits
knowingly making a false certification or omitting material information.
(5)
The annual compliance certification shall include or reference
the following information:
(A)
the identification of each term or condition of the permit
for which the permit holder is certifying compliance, the method used for
determining the compliance status of each emission unit, and whether such
method provides continuous or intermittent data;
(B)
for emission units addressed in the permit for which no
deviations have occurred over the certification period, a statement that the
emission units were in continuous compliance over the certification period;
(C)
for any emission unit addressed in the permit for which
one or more deviations occurred over the certification period, the following
information indicating the potentially intermittent compliance status of the
emission unit:
(i)
the identification of the emission unit;
(ii)
the applicable requirement for which a deviation occurred;
(iii)
the monitoring method (or recordkeeping method, if appropriate)
used to assess compliance;
(iv)
the frequency with which sampling, monitoring, or recordkeeping
was required to be conducted by the monitoring or recordkeeping requirement
of the permit; and
(v)
the total number of times that the assessment required
by the monitoring or recordkeeping method specified in the permit indicated
that a deviation had occurred;
(D)
the identification of all other terms and conditions of
the permit for which compliance was not achieved; and
(E)
the annual compliance certification does not need to include
any information regarding facilities identified as de minimis under §116.119
of this title (relating to De Minimis Facilities or Sources) unless the facilities
or sources are subject to an applicable requirement.
(6)
The executive director may request additional information
if necessary to determine the compliance status of an emission unit.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on May 14, 2001.
TRD-200102669
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
2.
PERMIT REVISIONS
30 TAC §§122.210 - 122.213, 122.215 - 122.219, 122.221, 122.222
STATUTORY AUTHORITY
The amendments and new sections are adopted under THSC, TCAA, §§382.015
- 382.017, which provide for power to enter property; monitoring requirements;
examination of records; and the authority to adopt rules consistent with the
policy and purposes of the TCAA; §382.021 and §382.022, which provide
for sampling methods and procedures; and investigations; §382.032, which
provides for appeal of commission actions; §382.040 and §382.041,
which provide for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.210.General Requirements for Revisions.
(a)
The permit holder shall submit an application to the executive
director for a revision to a permit for those activities at a site which change,
add, or remove one or more permit terms or conditions.
(b)
The executive director shall make a copy of the permit
application, the permit, and any required notices accessible to the EPA.
(c)
Provisional terms and conditions are not eligible for a
permit shield.
(d)
The permit holder may be subject to enforcement action
if the change to the permit is later determined not to qualify for the type
of permit revision submitted.
(e)
Changes qualifying as administrative permit revisions may
be processed as minor or significant permit revisions at the permit holder's
discretion.
(f)
Changes qualifying as minor permit revisions may be processed
as significant permit revisions at the permit holder's discretion.
(g)
General operating permits and authorizations to operate
under general operating permits are not subject to the permit revision requirements
of this subchapter, but instead are subject to the requirements of Subchapter
F of this chapter (relating to General Operating Permits).
§122.211.Administrative Permit Revisions.
A change to a permit may qualify as an administrative permit revision
if the change satisfies one or more of the following:
(1)
corrects typographical errors;
(2)
identifies a change in the name, address, or phone number
of any person identified in the permit, or provides a similar administrative
change at the site;
(3)
increases the frequency of monitoring or reporting requirements
without changing any existing emission limitations or standards;
(4)
changes the permit identification of ownership or operational
control of a site where the executive director 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 old and new permit holder is maintained with the permit;
(5)
incorporates the requirements from preconstruction authorizations
under an EPA-approved program, provided that such a program meets procedural
requirements substantially equivalent to those of Subchapters C and D of this
chapter that would be applicable to the change if it were subject to review
as a permit revision, and compliance requirements substantially equivalent
to those contained in §§122.143, 122.145, and 122.146 of this title
(relating to General Terms and Conditions, Reporting Terms and Conditions,
and Compliance Certification Terms and Conditions, respectively);
(6)
affects or adds a state-only requirement; or
(7)
is similar to those in paragraphs (1) - (6) of this section
and approved by EPA.
§122.213.Procedures for Administrative Permit Revisions.
(a)
If the following requirements are met, changes at a site
listed in §122.211 of this title (relating to Administrative Permit Revisions)
requiring an administrative permit revision may be operated before issuance
of the revision:
(1)
the permit holder records the information required in §122.212
of this title (relating to Applications for Administrative Permit Revisions)
before the change is operated; and
(2)
the permit holder maintains the information required by §122.212
of this title with the permit until the permit is revised.
(b)
In every case, the applicable requirements and state-only
requirements are always enforceable.
(c)
The permit holder need not comply with the original terms
and conditions codified in the permit that have been replaced by provisional
terms and conditions before issuance or denial of a revision or renewal.
(d)
The permit holder shall submit an application for an administrative
permit revision to the executive director no later than 30 days after each
permit anniversary.
(e)
An administrative permit revision may be issued by the
executive director provided the following:
(1)
the change meets the criteria for an administrative permit
revision;
(2)
the executive director has received an application; and
(3)
the conditions of the permit provide for compliance with
the requirements of this chapter.
(f)
The executive director shall take final action on an administrative
permit revision no later than 60 days after receipt of the application.
§122.215.Minor Permit Revisions.
Minor permit revisions include any change that satisfies the following:
(1)
does not violate any applicable requirement;
(2)
does not involve significant changes to existing monitoring,
reporting, or recordkeeping requirements in the permit;
(3)
does not require or change a case-by-case determination
of an emission limitation or other standard, or a source-specific determination
for temporary sources of ambient impacts, or a visibility or increment analysis;
(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 source has assumed to avoid an applicable requirement to which the
source 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 the FCAA, Title I;
and
(B)
an alternative emissions limit approved pursuant to regulations
promulgated under the FCAA, §112(i)(5); and
(5)
is not a modification under any provision of FCAA, Title
I.
§122.216.Applications for Minor Permit Revisions.
An application for a minor permit revision must include, at a minimum,
the following:
(1)
a description of each change;
(2)
a description of the emission units affected;
(3)
the provisional terms and conditions as defined in §122.10
of this title (relating to General Definitions) that codify the new applicable
requirements;
(4)
a statement that the change qualifies for a minor permit
revision;
(5)
a certification in accordance with §122.165 of this
title (relating to Certification by a Responsible Official); and
(6)
the emissions resulting from the change.
§122.217.Procedures for Minor Permit Revisions.
(a)
If the following requirements are met, changes at a site
requiring a minor permit revision may be operated before issuance of the revision:
(1)
the permit holder complies with the following:
(A)
all applicable requirements governing the change;
(B)
all state-only requirements governing the change; and
(C)
the provisional terms and conditions as defined in §122.10
of this title (relating to General Definitions) governing the change;
(2)
the permit holder submits to the executive director an
application containing the information required in §122.216 of this title
(relating to Applications for Minor Permit Revisions) before the change is
operated;
(3)
the permit holder maintains the information required by §122.216
of this title with the permit until the permit is revised.
(b)
For changes to a permit required as the result of the revision
of a compliance assurance monitoring general operating permit or periodic
monitoring general operating permit, the following requirements apply.
(1)
The permit holder shall comply with the following:
(A)
all applicable requirements governing the change;
(B)
all state-only requirements governing the change; and
(C)
the provisional terms and conditions as defined in §122.10
of this title governing the change.
(2)
The information in §122.216(1) - (5) of this title
shall be submitted no later than the compliance date of the new requirement
or effective date of the repealed requirement, whichever is applicable.
(3)
The permit holder shall maintain the information required
in §122.216 (1) - (4) of this title with the permit until the permit
revision is final.
(c)
In every case, the applicable requirements are always enforceable.
(d)
The permit holder need not comply with the original terms
and conditions codified in the permit that have been replaced by provisional
terms and conditions before issuance or denial of a revision or renewal.
(e)
The executive director shall notify the EPA administrator
and affected state(s) of the requested permit modification within five working
days of receipt of a complete minor revision permit application.
(f)
A minor permit revision may be issued by the executive
director provided the following:
(1)
the changes meet the criteria for a minor permit revision;
(2)
the executive director has received a complete application;
(3)
the conditions of the permit provide for compliance with
the requirements of this chapter; and
(4)
the requirements of this chapter for public announcement,
affected state review, and EPA review have been satisfied.
(g)
The executive director shall take final action on the permit
revision application no later than 90 days after receipt of an application,
or 15 days after the end of the EPA review period, whichever is later.
§122.218.Minor Permit Revision Procedures for Permit Revisions Involving the Use of Economic Incentives, Marketable Permits, and Emissions Trading.
Notwithstanding §122.215 of this title (relating to Minor Permit
Revisions), minor permit revision procedures may be used for permit revisions
involving the use of economic incentives, marketable permits, emissions trading,
and other similar approaches, to the extent that such minor permit revision
procedures are explicitly provided for in the Texas state implementation plan
or in applicable requirements promulgated by the EPA.
§122.219.Significant Permit Revisions.
(a)
Significant revision procedures shall be used for changes
to the permit at a site that do not qualify as administrative or minor revisions.
(b)
At a minimum, every significant change in existing monitoring
permit terms or conditions and every relaxation of reporting or recordkeeping
permit terms or conditions shall be considered a significant permit revision.
(c)
A change to a permit shield or a new permit shield is a
significant revision.
§122.222.Operational Flexibility and Off-Permit Changes.
(a)
An owner or operator may make changes at a permitted site
without applying for or obtaining a permit revision provided that the following
conditions are met:
(1)
the changes are not modifications under FCAA, Title I;
(2)
the changes are allowed under FCAA, §502(b)(10);
(3)
the changes do not exceed the emissions limitation under
the permit; and
(4)
the owner or operator has obtained any applicable preconstruction
authorization. Such preconstruction authorization cannot be a modification
under FCAA, Title I.
(b)
When an owner or operator removes a unit from the site,
the unit and its applicable requirements and any other associated permit terms
and conditions may be removed from the permit when this removal does not result
in changes to applicable requirements or permit terms and conditions for remaining
units.
(c)
The owner or operator shall provide the EPA and the executive
director written notification for changes to the permit which qualify under
this section. The written notification shall be submitted to the executive
director and the EPA administrator at least seven days in advance of the proposed
changes, except for an emergency. Notice may be provided within two working
days of implementation of operational flexibility changes due to an emergency.
Such notice shall also include an explanation of the emergency.
(d)
For those cases where the permit does not already provide
for emissions trading, an owner or operator may trade increases and decreases
in emissions without applying for or obtaining a permit revision and based
on the seven-day notice prescribed in subsection (c) of this section.
(e)
Upon request, the executive director shall issue permits
that contain terms and conditions allowing for the trading of emissions increases
and decreases solely for the purpose of complying with a federally-enforceable
emissions cap that is established in the permit independent of otherwise applicable
requirements.
(f)
Written notification shall include the following information:
(1)
for changes specified in subsections (a) and (b) of this
section, a description of the change, the date on which the change is proposed
to occur, the emissions resulting from the change, and any permit term or
condition that is no longer applicable as a result of the change; or
(2)
for changes specified in subsection (d) of this section,
when the proposed change will occur, a description of each such change, any
change in emissions, the permit requirements with which the source will comply
using the emissions trading provisions of the SIP, the pollutants emitted
subject to the emissions trade, and reference to the provisions in the SIP
with which the source will comply and that provide for the emissions trade;
or
(3)
for changes specified in subsection (e) of this section,
when the proposed change will occur, a description of the changes in emissions
that will result, and how these increases and decreases in emissions will
comply with the terms and conditions of the permit; and
(4)
certification by a responsible official, consistent with §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.
(g)
The owner or operator, the executive director, and the
EPA shall attach each such notice to their copy of the relevant permit.
(h)
Changes that qualify under this section are not subject
to the public notice, affected state review, notice and comment hearing, EPA
review, and public petition requirements for permit revisions.
(i)
Upon satisfying the requirements of this section, the owner
or operator may begin operating the change at the expiration of the time period
provided for in subsection (c) of this section.
(j)
Except as provided in subsection (e) of this section, the
permit shield described in §122.148 of this title (relating to Permit
Shield) shall not apply to any change made pursuant to this section.
(k)
An off-permit change may be made at a site, when the following
conditions are met:
(1)
The change shall meet all applicable requirements and shall
not violate any existing permit term or condition;
(2)
The permittee shall provide written notice to the executive
director and the EPA administrator concurrent with each such change, except
for changes that qualify as insignificant activities. Such written notice
shall describe each such change, including the date, any change in emissions,
pollutants emitted, and any applicable requirement that would apply as a result
of the change;
(3)
The change shall not qualify for the permit shield under §122.148;
and
(4)
The permittee shall keep a record of any off-permit changes
with the permit.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on May 14, 2001.
TRD-200102670
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
30 TAC §122.215, §122.219
STATUTORY AUTHORITY
The repeals are adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 14, 2001.
TRD-200102671
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
30 TAC §122.231
STATUTORY AUTHORITY
The amendment is adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.231.Permit Reopenings.
(a)
The executive director shall reopen a permit for cause.
Cause shall be limited to one or more of the following:
(1)
the promulgation or adoption of a new applicable requirement
affecting emission units at the site, unless one of the following applies:
(A)
the new requirement is incorporated into a permit which
addresses the emission unit subject to the new requirement;
(B)
the effective date of the requirement is later than the
date on which the permit is due to expire, unless the original permit or any
of its terms and conditions has been extended pursuant to §§122.133
of this title (relating to Timely Application) or §122.134 of this title
(relating to Complete Application); or
(C)
the remaining permit term is less than three years;
(2)
the executive director or the EPA administrator determines
that the permit contains a material mistake;
(3)
inaccurate statements were made in establishing the emissions
standards or other terms and conditions of the permit;
(4)
the executive director or the EPA administrator determines
that the permit must be revised or terminated to assure compliance with the
applicable requirements;
(5)
a phased application schedule in the permit requires a
reopening; or
(6)
additional requirements, including excess emissions requirements,
become applicable to an affected source under the acid rain program. Upon
approval by the EPA administrator, excess emissions offset plans shall be
deemed to be incorporated into the permit.
(b)
The following procedures shall apply if EPA initiates a
reopening by notifying the executive director in writing that cause, as defined
in this section, exists to terminate or revise a permit.
(1)
The executive director shall submit a proposed determination
regarding the reopening to the EPA no later than 90 days after receipt of
the notification. If the EPA extends the period for response by the executive
director, the executive director shall submit the proposed determination no
later than 180 days after receipt of the notification.
(2)
Upon receipt of the proposed determination, the EPA shall
have 90 days to object, in writing, to the proposed determination.
(3)
The executive director shall have 90 days from receipt
of an EPA objection to resolve the objection and take action on the reopening.
(c)
The executive director shall institute proceedings to reopen
permits or authorizations to operate to incorporate requirements under Chapter
106, Subchapter A of this title (relating to General Requirements) or Chapter
116 of this title (relating to Control of Air Pollution by Permits for New
Construction or Modification) or any term or condition of any preconstruction
permit.
(1)
Before December 1, 2001, the executive director will institute
proceedings to reopen permits no later than renewal of the permit. Such reopenings
need not follow full permit issuance procedures nor the notice requirement
of subsection (e) of this section but may instead follow the permit revision
procedure in effect under the State's approved Part 70 program for incorporation
of minor NSR permits.
(2)
Before December 1, 2001, the executive director will institute
proceedings to reopen authorizations to operate.
(3)
Requirements under Chapter 106, Subchapter A, or Chapter
116 of this title or any term or condition of any preconstruction permit will
be incorporated no later than permit renewal for applications for which the
executive director has authorized initiation of public notice by the effective
date of this section.
(d)
Except as provided in subsection (c) of this section, reopenings
shall be made as soon as possible. Reopenings shall be completed and the permit
issued by the executive director not later than 18 months after promulgation
or adoption of the applicable requirement.
(e)
The executive director shall provide a 30-day notice of
intent to reopen, unless a shorter notice is authorized by the executive director
due to an emergency.
(f)
Reopenings shall be subject to the requirements of §122.201
of this title (relating to Initial Permit Issuance). These procedures shall
affect only those parts of the permit for which cause to reopen exists.
(g)
The permit holder shall provide any information requested
by the executive director to complete the reopening.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 14, 2001.
TRD-200102672
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
30 TAC §§122.320, 122.330, 122.340, 122.350, 122.360
STATUTORY AUTHORITY
The amendments are adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.350.EPA Review.
(a)
EPA review requirements apply to initial issuances, minor
permit revisions, significant permit revisions, reopenings, and renewals.
(b)
The executive director shall submit the proposed permit
to the EPA.
(1)
For initial issuances, significant permit revisions, reopenings,
and renewals the proposed permit shall be submitted to the EPA. At the discretion
of the executive director, the procedural requirements of §122.320 of
this title (relating to Public Notice), §122.322 of this title (relating
to Bilingual Notice), and the requirements for EPA Review under this section
may run concurrently. If appropriate, the executive director may extend the
EPA review period.
(2)
For minor permit revisions, the proposed permit shall be
submitted to the EPA no earlier than the first day of the public announcement
period.
(3)
For general operating permit initial issuances and significant
revisions, the proposed permit shall be submitted to the EPA no earlier than
the first day of the public comment period. For general operating permit minor
permit revisions, the proposed permit shall be submitted to the EPA no earlier
than the first day of the public announcement period.
(c)
Upon receipt of the proposed permit, the EPA shall have
45 days to object, in writing, to the issuance of the proposed permit. The
EPA may only object to the issuance of any proposed permit which is not in
compliance with the applicable requirements or the requirements of this chapter.
(d)
The executive director may issue the permit provided the
following:
(1)
the EPA does not object to the issuance of the proposed
permit;
(2)
the EPA notifies the executive director that the EPA will
not object to the issuance of the permit; or
(3)
the executive director resolves any objections received.
(e)
If the executive director fails, within 90 days of receipt
of an objection, to revise the proposed permit and submit a revised permit,
if necessary, in response to the objection, the EPA will issue or deny the
permit in accordance with the requirements of the federal program promulgated
under FCAA, Title V (relating to Permit).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 14, 2001.
TRD-200102673
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
30 TAC §122.608
STATUTORY AUTHORITY
The amendment is adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
§122.608.Procedures for Incorporating Periodic Monitoring Requirements.
(a)
For permit holders applying for a periodic monitoring case-by-case
determination, periodic monitoring requirements shall be initially incorporated
into the permit in accordance with paragraph (1) or (2) of this subsection,
except as in subsection (d) of this section.
(1)
If the permit holder is authorized to operate under a general
operating permit (GOP), the following requirements apply:
(A)
the permit holder shall submit an application for a permit
other than a GOP including the information specified in §122.606 of this
title (relating to Applications for Periodic Monitoring); and
(B)
the requirements of §122.201 of this title (relating
to Initial Permit Issuance) shall be satisfied.
(2)
If the permit holder is authorized under a permit other
than a GOP, the following requirements for significant permit revisions apply:
(A)
the permit holder shall submit an application including
the information specified in §122.606 of this title; and
(B)
the requirements of §122.221(b) and (c) of this title
(relating to Procedures for Significant Permit Revisions) shall be satisfied.
(b)
For permit holders applying for a periodic monitoring GOP,
periodic monitoring requirements shall be initially incorporated into a permit
or GOP application in accordance with paragraph (1) or (2) of this subsection,
except as in subsection (d) of this section.
(1)
If the permit holder is authorized to operate under a GOP,
the following requirements apply:
(A)
the permit holder shall submit an application including
the information in §122.606 of this title;
(B)
the representations in the GOP application as specified
in §122.140(3) of this title (relating to Representations in Application)
shall provide for compliance with the requirements of this subchapter; and
(C)
the executive director shall grant an authorization to
operate provided the requirements of this paragraph are satisfied.
(2)
If the permit holder is authorized under a permit other
than a GOP, the following requirements for minor permit revision apply:
(A)
the permit holder shall submit an application including
the information specified in §122.606 of this title; and
(B)
the requirements of §122.217(f) and (g) of this title
(relating to Procedures for Minor Permit Revision) shall be satisfied.
(c)
Except as in subsection (d) of this section, periodic monitoring
requirements implemented under §122.600(b) of this title (relating to
Implementation of Periodic Monitoring) shall be initially incorporated into
a permit or GOP application through the procedures in §122.201 of this
title (relating to Initial Permit Issuance), the procedures in Subchapter
F of this chapter (relating to General Operating Permits), or the following
procedures for minor permit revision:
(1)
the permit holder shall submit an application including
the information specified in §122.606 of this title; and
(2)
the requirements of §122.217(f) and (g) of this title
shall be satisfied.
(d)
If the periodic monitoring requirements are incorporated
at the time of renewal, the requirements of §122.243 of this title (relating
to Permit Renewal Procedures), or §122.505 of this title (relating to
Renewal of the Authorization to Operate Under a General Operating Permit)
apply.
(e)
After periodic monitoring requirements are incorporated
into a permit or a new authorization to operate under a periodic monitoring
GOP is granted, subsequent revisions to periodic monitoring requirements shall
be governed by the requirements of Subchapter C of this chapter (relating
to Initial Permit Issuances, Revisions, Reopenings, and Renewals) or Subchapter
F of this chapter (relating to General Operating Permits), as appropriate.
However, changes in deviation limits, other than changes required as the result
of the promulgation or adoption of applicable requirement, shall not be operated
before the permit or authorization to operate under a general operating permit
is revised.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 14, 2001.
TRD-200102674
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
30 TAC §122.706, §122.708
STATUTORY AUTHORITY
The amendments are adopted under THSC, TCAA, §§382.015 - 382.017,
which provide for power to enter property; monitoring requirements; examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; §382.021 and §382.022, which provide for sampling
methods and procedures; and investigations; §382.032, which provides
for appeal of commission actions; §382.040 and §382.041, which provide
for public records and submission of confidential information; §382.051,
which provides the commission authority to issue FOPs and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits; §§382.0513
- 382.0515 and 382.0517, which provide the commission authority to establish
and enforce permit conditions; to require sampling, monitoring, and certification;
to require permit applications; and to determine administrative completeness
of applications; §§382.054 - 382.0543, which provide for FOPs; administration
and enforcement of FOPs; issuance of FOPs and appeal of delays; and review
and renewals of FOPs; §382.056, which provides for notice of intent to
obtain a permit or permit review and provides for permit hearings for FOPs; §§382.0561
- 382.0564, which provide for FOP public hearings; notices of decision for
FOPs; public petition of FOPs to the administrator; and notification to other
governmental entities for FOPs; §382.061, which provides for delegation
of powers and duties under §§382.051 - 382.0563 and 382.059, appeals
of executive director decisions and petitions under §382.0563 and appeals
under §382.056; and under TWC, including §5.103, which provides
the commission authority to adopt rules consistent with the policy and purposes
of the TCAA and other laws of this state; §5.105, which provides the
commission authority to establish and approve commission policy; §5.122,
which provides delegation of uncontested matters to the executive director; §5.351,
which provides for judicial review of commission acts; §5.355, which
provides for appeal of district court judgment; and §§7.001 - 7.358,
which provide for enforcement.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 14, 2001.
TRD-200102675
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 3, 2001
Proposal publication date: January 26, 2001
For further information, please call: (512) 239-6087
Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL
Subchapter B. PERMIT REQUIREMENTS
3.
PERMIT APPLICATION
4.
PERMIT CONTENT
Subchapter C. INITIAL PERMIT ISSUANCES, REVISIONS, REOPENINGS, AND RENEWALS
3.
PERMIT REOPENINGS
Subchapter D. PUBLIC ANNOUNCEMENT, PUBLIC NOTICE, AFFECTED STATE REVIEW, NOTICE AND COMMENT HEARING, NOTICE OF PROPOSED FINAL ACTION, EPA REVIEW, AND PUBLIC PETITION
Subchapter G. PERIODIC MONITORING
Subchapter H. COMPLIANCE ASSURANCE MONITORING
Chapter 335.
INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE