Regulatory Text: 
Texas Chapter 116 - Control of Air Pollution by Permits For New Construction or Modification
As approved by EPA September 27, 1995 (60 FR 49781) effective November 27, 1995 (TXc97).  

NOTE: Left justified number before each paragraph is 40 CFR 52.2270(c)/ 52.2299(c) section where paragraph was last approved by EPA.  See Texas SIP History document in this web site for Federal Register approval date, page number, and effective date.  See Texas Chapter 115 SIP Map document for information on how to interpret the numbers.


Outline:
§116.01.  Permit Requirements
§116.02.  Responsibility for Obtaining Permit or Exemption
§116.03.  Consideration for Granting a Permit to Construct and Operate
§116.04.  Special Conditions
§116.05.  Representation in Application for Permit or Exemption
§116.06.  Exemptions
§116.07.  Request for Exemptions
§116.08.  Local Air Pollution Control Agencies
§116.10.  Public Notification and Comment Procedure
§116.11.  Permit Fees
§116.14.  Compliance History Requirements.


§116.01.  Permit Requirements

97I  (a)  Any person who plans to construct any new facility or to engage in the modification of any existing facility which may emit air contaminants into the air of this state must obtain a permit to construct pursuant to section 116.3(a) of this title (relating to Consideration for Granting Permits to Construct and Operate) or satisfy the conditions for exempt facilities pursuant to section 116.6 of this title (relating to Exempted Facilities) before any actual work is begun on the facility.  If a permit to construct is issued by the Board, the person in charge of the facility must apply for an operating permit pursuant to section 116.3(b) of this title (relating to Consideration for Granting Permits to Construct and Operate) within 60 days after the facility has begun operation, unless this 60- day period has been extended by the Executive Director.

97G  (b)  The new owner of a facility which previously has received a permit or special permit from the Texas Natural Resource Conservation Commission (TNRCC) shall not be required to apply for a new permit or special permit and the change of ownership shall not be subject to the public notification requirements of this chapter, provided that within 30 days after the change of ownership the new owner notifies the TNRCC of the change.  The notification shall include a certification of the following:

97G       (1)  The ownership change has occurred and the new owner will comply with all conditions and provisions of the permit or special permit and all representations made in the application for permit or special permit and any amendments thereto;

97G       (2)  There will be no change in the type of pollutants emitted; and

97G       (3)  There will be no increase in the quantity of pollutants emitted.

97K  (c)  All applications for permit or permit amendment with an estimated capital cost of the project above $2 million, and not subject to any exemption contained in the Texas Engineering Practice Act (TEPA), shall be submitted under seal of a registered professional engineer.  However, nothing in this subsection shall limit or affect any requirement which may apply to the practice of engineering under the TEPA or the actions of the Texas State Board of Registration for Professional Engineers.  For purposes of this subsection, the estimated capital cost is defined in section 116.3(b) of this title, concerning Permit Fees.

******************* end 116.1 *****************************


§116.2.  Responsibility for Obtaining Permit or Exemption.

97A     The owner of the facility or the operator of the facility authorized to act for the owner is responsible for complying with section 116.1 of this title (relating to Permit Requirements).

***************** end 116.2 ********************************


§116.3.  Consideration for Granting a Permit to Construct and Operate.

     (a)  Permit to Construct.

97P  In order to be granted a permit to construct, the owner or operator of the proposed facility shall submit information to the Texas Natural Resource Conservation Commission (TNRCC) which will demonstrate that all of the following are met:

97P       (1)  The emissions from the proposed facility will comply with all rules and regulations of the TNRCC and with the intent of the Texas Clean Air Act (TCAA) including protection of the health and physical property of the people.

97P            (A)  In considering the issuance of a permit for construction or modification of any facility within 3,000 feet or less of an elementary, junior high/middle, or senior high school, the TNRCC shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility may have on the individuals attending these school facilities.

97P            (B)  Pursuant to the TCAA, section 382.053, a permit to construct shall not be issued for a new lead smelting plant at a site located within 3,000 feet of the residence of any individual and at which lead smelting operations have not been conducted before August 31, 1987.  This subparagraph does not apply to a modification of a lead smelting plant in operation on or before August 31, 1987, to a new lead smelting plant or modification of a plant with the capacity to produce not more than 200 pounds of lead per hour, or to a lead smelting plant that was located more than 3,000 feet from the nearest residence when the plant began operations.  In this subparagraph, "lead smelting plant" means a facility operated as a smeltery for the processing of lead.

36        (2)  The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the Executive Director.

97P       (3)  The proposed facility will utilize the best available control technology, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions resulting from the facility.
97P       (4)  The emissions from the proposed facility will meet at least the requirements of any applicable new source performance standards promulgated by the U.S. Environmental Protection Agency (EPA) pursuant to authority granted under the Federal Clean Air Act (FCAA), section 111, as amended.

97P       (5)  The emissions from the proposed facility will meet at least the requirements of any applicable emission standard for hazardous air pollutants promulgated by the EPA pursuant to authority granted under the FCAA, section 112, as amended.

36        (6)  The proposed facility will achieve the performance specified in the application for a permit to construct.  The applicant may be required to submit additional engineering data after a permit to construct has been issued in order to demonstrate further that the proposed facility will achieve the performance specified in the application for the permit to construct.

97R       (7) The owner or operator of a proposed new facility which is a major stationary source of volatile organic compound (VOC) emissions or emissions of oxides of nitrogen (NOx), or which is a facility that will undergo a major modification with respect to VOC or NOx emissions, and which is to be located in any area designated as nonattainment for ozone in accordance with the Federal Clean Air Act (FCAA), section 107, shall meet the additional requirements of subparagraphs (A)-(D) of this paragraph. Table I of section 101.1 of this title (relating to Definitions) specifies the various classifications of nonattainment along with the associated emission levels which designate a major stationary source or major modification for those classifications. The de minimis threshold test must be applied to any proposed VOC or NOx emissions increase in moderate, serious, and severe ozone nonattainment areas.  The de minimis thresholds are the same as the major modification levels stated in Table I, but aggregated over the previous five-year period, including the calendar year of the proposed change.  The past net increase must be evaluated even when the proposed increase alone is below the major modification level.  Permit applications filed on or after November 15, 1992 shall comply with this paragraph.

97P            (A)  The proposed facility will comply with the lowest achievable emissions rate (LAER) as defined in section 101.1.  LAER must be applied to each new emissions unit and to each existing emissions unit at which a net emissions increase will occur as a result of a physical change or change in the method of operation of the emissions unit.

20             (B)  All major stationary sources owned or operated by the applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state are in compliance or on a schedule for compliance with all applicable state and federal emission limitations and standards.

97P            (C)  The proposed facility will use the offset ratio for the appropriate nonattainment classification as shown in Table I of section 101.1.  For the purpose of satisfying the emissions offset reduction requirements of the FCAA, section 173(a)(1)(A), the emissions offset ratio is the ratio of total actual reductions of VOC or NOx emissions to total allowable emissions increases of such pollutants from the new source.

97R            (D) In accordance with the FCAA, the permit application must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source and that benefits of the proposed location and source configuration significantly outweigh the environmental and social costs of that location.


97P       (8)  The owner or operator of a proposed new facility  which is a major stationary source of VOC or NOx or which is a   facility that will undergo a major modification with respect to  VOC or NOx emissions, and which is located in a nonattainment county for ozone shall provide information concerning the expected emissions to enable the Executive Director to determine that by the time the facility is to commence operation, total    allowable emissions from existing facilities, from the proposed  facility, and from new or modified facilities which are not major sources in the area will be sufficiently less than the total emissions from existing sources allowed in the area under  the applicable state implementation plan (SIP) as promulgated by the EPA in the Code of Federal Regulations (CFR) at 40 CFR, Part 52, Subpart SS, prior to the application for the construction permit so as to represent reasonable further progress as defined in section 101.1.  Permit applications filed on or after November 15, 1992, shall comply with this paragraph.


97P        (9)  The owner or operator of a proposed new facility to be located anywhere within the state that is a major stationary source of emissions of any air contaminant (other than VOC) for which a National Ambient Air Quality Standard has  been issued, or is a facility that will undergo a major  modification with respect to emissions of any air contaminant (other than VOC), must meet the following additional requirements if the ambient air quality impact of the source's emissions would exceed a de minimis impact level as defined in section 101.1 in any area where the standard is exceeded or predicted to be exceeded.

97P             (A)  The proposed facility will comply with LAER as defined in section 101.1.  LAER must be applied to each  new emissions unit and to each existing emissions unit at which a net emissions increase will occur as a result of a physical change or change in the method of operation of the emissions unit.

25              (B)  All major stationary sources owned or operated by the applicant (or by any person controlling, controlled by, or under common control with the applicant in the state are to be in compliance or on a schedule for compliance with all applicable state and federal emission limitations and standards.

25              (C)  By the time the facility is to commence operation, total allowable emissions from existing facilities which have more than a de minimis impact on air quality in the same area as the proposed facility, from the proposed facility, and from new or modified facilities which are not major sources but which will have more than a de minimis impact on air quality in the same area as the proposed facility, will not cause the national air quality standard for that contaminant to be exceeded at any location and will not have more than a de minimis impact on air quality at any location where the standard is exceeded.


97R        (10)  The owner or operator of a proposed new facility in a designated nonattainment area for an air contaminant other than ozone, which will be a major stationary   source or a major modification of an existing facility for that  nonattainment air contaminant must meet the additional  requirements of subparagraphs (A)-(E) of this paragraph regardless of the degree of impact of its emissions on ambient air quality.  Table I of Section 101.1 specifies the various classifications of nonattainment along with the associated emission levels which designate a major stationary source or     major modification for those classifications.  Permit applications filed on or after November 15, 1992 shall comply with this paragraph.

97P            (A)  The proposed facility will comply with LAER as defined in section 101.1 for the nonattaining pollutants.  LAER must be applied to each new emissions unit and to each existing emissions unit at which a net emissions increase will occur as a result of a physical change or change in the method of operation of the emissions unit.

38             (B)  All major stationary sources owned or operated by the applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state are to be in compliance or on a schedule for compliance with all applicable state and federal emission limitations and standards.

38             (C)  At the time the facility commences operation, a net decrease in total allowable emissions in the area has been provided notwithstanding any increases in emissions resulting from operation of the proposed new facility or modification.

97P            (D)  The proposed facility will use the offset ratio for the appropriate nonttainment classification as shown in Table I.  For the purpose of satisfying the emissions offset  reduction requirements of the FCAA, section 173(a)(1)(A), the emissions offset ratio is the ratio of total actual reductions of pollutant emissions to total allowable emissions increases of such pollutants from the new source.

NOTE TO READER:  The Table I cited above is Table I in the General Rules, Section 101, Definitions.  The title of the table is MAJOR SOURCE/MAJOR MODIFICATION EMISSION THRESHOLDS.

97R            (E)  In accordance with the FCAA, the permit application must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source and that benefits of the proposed location and source configuration significantly outweigh the environmental and social costs of that location.


NOTE TO READER:  Section 116.3(a)(11) below for PSD was approved at 52.2270(c)(73) and (78) as Section 116.3(a)(13).   Redesignation to section 116.3(a)(11) and agency and address correction approved at 52.2270(c)(97)P.

97P       (11)  The proposed facility shall comply with the Prevention of Significant Deterioration (PSD) of Air Quality regulations promulgated by the Environmental Protection Agency (EPA) in the Code of Federal Regulations at 40 CFR 52.21 as amended October 17, 1988 and the Definitions for Protection of Visibility promulgated at 40 CFR 51.301, hereby incorporated by reference, except for the following paragraphs:  40 CFR 52.21(j), concerning control technology review; 40 CFR 52.21(1), concerning air quality models; 40 CFR 52.21(q), concerning public notification (provided, however, that a determination to issue or not issue a permit shall be made within one year after receipt of a complete permit application so long as a contested case hearing has not been called on the application); 40 CFR 52.21(r)(2), concerning source obligation; 40 CFR 52.21(s), concerning environmental impact statements; 40 CFR 52.21(u) concerning delegation of authority; and 40 CFR 52.21(w),  concerning permit rescission.  The term "Executive Director" shall replace the word "Administrator," except in 40 CFR 52.21(b)(17), (f)(1)(v), (f)(3), (f)(4)(i), (g), and (t). "Administrator or Executive Director" shall replace "Administrator" in 40 CFR 52.21(b)(3)(iii), and "Administrator and Executive Director" shall replace "Administrator" in 40 CFR 52.21(p)(2).  All estimates of ambient concentrations required under this paragraph shall be based on the applicable air quality models and modeling procedures specified in the EPA Guideline on Air Quality Models, as amended, or models and modeling procedures currently approved by EPA for use in the state program, and other specific provisions made in the state PSD SIP.  If the air quality impact model approved by EPA or specified in the guideline is inappropriate, the model may be modified or another model substituted on (1) a case-by-case basis, or (2) a generic basis for the state program, where appropriate.  Such a change shall be subject to notice and opportunity for public hearing and written approval of the Administrator of the EPA.  Copies of 40 CFR 52.21 and 40 CFR 51.301 are available upon request from the TNRCC, 12100 Park 35 Circle, Austin, Texas 78753.


97P       (12)  In evaluating air quality impacts under paragraphs (9) or (11) of this subsection, the owner or operator of a proposed new facility or modification of an existing facility shall not take credit for reductions in impact due to dispersion techniques as defined in the CFR.  The relevant federal regulations are incorporated herein by reference, as follows:  40 CFR 51.100(hh)-(kk) promulgated November 7, 1986; the definitions of "owner or operator," "emission limitation and emission standards," "stack," "a stack in existence," and "reconstruction," as given under Sections 40 CFR 51.100(f), (z), (ff), (gg), and 40 CFR 60, respectively; 40 CFR 51.118(a), (b), (c); and 40 CFR 51.164.  Copies of these sections of the CFR are available upon request from the TNRCC, 12100 Park 35 Circle, Austin, Texas 78753.


97P       (13)  Permits for hazardous waste management facilities shall not be issued if the facility is to be located in the vicinity of specified public access areas under the following circumstances:

97P            (A)  No permit shall be issued for a new hazardous waste landfill or land treatment facility or an areal expansion of an existing facility if the boundary of the facility or expansion is to be located within 1,000 feet of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park.

97P            (B)  No permit shall be issued for a new commercial hazardous waste management facility or the subsequent areal expansion of such a facility or unit of that facility if the boundary of the unit is to be located within one-half mile (2,640 feet) of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park.

97P            (C)  For a subsequent areal expansion of a new commercial hazardous waste management facility that is required to comply with subparagraph (B) of this paragraph, distances shall be measured from a residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park only if such structure, water supply, or park was in place at the time the distance was certified for the original permit.

97P            (D)  No permit shall be issued for a new commercial hazardous waste management facility that is proposed to be located at a distance greater than one-half mile (2,640 feet) from an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park, at any distance beyond the facility's property boundaries, unless the applicant demonstrates that the facility will be operated so as to safeguard public health and welfare and protect physical property and the environment.

97P            (E)  The measurement of distances required by subparagraphs (A), (B), (C), and (D) of this paragraph shall be taken toward an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park that is in use when the permit application is filed with TNRCC.  The restrictions imposed by subparagraphs (A), (B), (C), and (D) of this paragraph do not apply to a residence, church, school, day care center, surface water body used for a public drinking water supply, a dedicated public park located within the boundaries of a commercial hazardous waste management facility or property owned by the permit applicant.

97P            (F)  The measurement of distances required by subparagraphs (A), (B), (C), and (D) of this paragraph shall be taken from a perimeter around the proposed hazardous waste management unit.  The perimeter shall be no more than 75 feet from the edge of the proposed hazardous waste management unit.


      (b)  Permit to operate.

01    In order to be granted a permit to operate the owner of the facility shall demonstrate that:

01         (1)  The facility is complying with the Rules and Regulations of the Texas Natural Resource Conservation Commission and the intent of the Texas Clean Air Act.

36         (2)  The facility has been constructed and is being operated in accordance with the requirements and conditions contained in the permit to construct.

36         (3)  The facility is being operated in accordance with any applicable new source performance standards promulgated by the Environmental Protection Agency pursuant to authority granted under Section 111 of the Federal Clean Air Act, as amended.

36         (4)  The facility is being operated in accordance with any applicable emission standard for hazardous air pollutants promulgated by the Environmental Protection Agency pursuant to authority granted under Section 112 of the Federal Clean Air Act, as amended.


97P   (c)  Emission reductions:  offset.

97R  At the time of application for a construction permit in accordance with this chapter, any applicant who has effected air contaminant emission reductions may also apply to the Executive Director to use such emission reductions to offset emissions expected from the facility for which the permit is sought provided that the following conditions are met:

97P       (1)  The emission reductions are not required by any provision of the Texas SIP as promulgated by EPA in 40 CFR, Part 52, Subpart SS, nor by any other federal regulation under the FCAA, as amended, such as new source performance standards.  Minimum offset ratios as specified in Table I of section 101.1 will be used in areas designated as nonattainment areas.  Permit applications filed on or after November 15, 1992, shall comply with this paragraph.

          (2)  NOT IN SIP

97R       (3) emissions increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source shall be allowed to be offset by alternative or innovative means provided the following conditions are met.
97R            (A) Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source permitted to test such engines as of November 15, 1990.
 
97R            (B) The source demonstrates to the satisfaction of TNRCC that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source.

97R            (C) The source has obtained a written finding from the Department of Defense, Department of Transportation, National Aeronautics and Space Administration, or other appropriate federal agency, that the testing of rocket motors or engines at the facility is required for a program essential to the national security.

97R            (D) The source will comply with an alternative measure, imposed by TNRCC, designed to offset any emission increases beyond permitted levels not directly offset by the source.  In lieu of imposing any alternative offset measures, TNRCC may impose an emissions fee to be paid which shall be an amount no greater than 1.5 times the average cost of stationary source control measures adopted in that area during the previous three years.


     (d), (e)  NOT IN SIP


97I  (f)  Determination of deficient application.

     An applicant shall make a good faith effort to submit, in a timely manner, adequate information which demonstrates that the requirements for obtaining a permit or permit amendment are met in response to any deficiency notification issued by the Executive Director pursuant to the provisions of section 116.5 of this chapter, concerning Representations in Application for Permit and Exemption, or section 116.10(a)(1) of this chapter, concerning Public Notification and Comment Procedure.  If an applicant fails to make such good faith effort, the Executive Director shall void the application and notify the applicant.  If the application is resubmitted within six months of the voidance, it shall be exempt from the requirements of section 116.11 of this chapter, concerning Permit Fees.

****************** end 116.3 ***************************


§116.4.  Special Conditions.

59     Permits to construct and operate and exemptions may contain general and special conditions.  The holders of exemptions and/or construction and operating permits shall comply with any and all such conditions or satisfy the conditions for a standard exemption as published by the Executive Director.

***************** end 116.4 ***********************


§116.5.  Representations in Application for Permit or Exemption.

97I  All representations with regard to construction plans and operation procedures in an application for a special permit, a permit to construct or a permit to operate, or in any request for an exemption become conditions upon which a subsequent exemption, special permit, or permit to construct or operate are issued.  It shall be unlawful for any person to vary from such representation if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in an increase in the discharge of the various emissions, unless he first makes application to the Executive Director to amend his permit, special permit, or exemption in that regard and such amendment is approved by the Executive Director.  Within 90 days of receipt of an application to amend a permit, special permit, or exemption, the Executive Director shall mail written notification informing the applicant that the application is complete or that it is deficient.  If the application is deficient, the notification shall state any additional information required, and the intent of the Executive Director to void the application if information for a complete application is not submitted.  Additional information may be requested within 60 days of receipt of the information provided in response to the deficiency notification.  Within 150 days of receipt of a completed application, the Executive Director shall mail written notice informing the applicant of his decision to approve or not approve the amendment provided that no requests for public hearing or public meeting on the proposed facility have been received and the applicant has provided public notification as required by the Executive Director.  If the time limits provided in this section to process an application are exceeded, the applicant may appeal in writing to the Executive Director.  If the Executive Director finds that the amendment was not approved or denied within the specified period and that the agency exceeded that period without good cause, as provided in Vernon's Texas Civil Statutes 6252-13(b).1, section 3, the Executive Director shall reimburse the permit fee which was remitted with application.

******************** end 116.5 **************************


§116.6.  Exemptions.

36   Pursuant to Section 3.27(a) of the Texas Clean Air Act, a permit to construct and a permit to operate shall not be required for those sources exempted by the Executive Director of the Texas Natural Resource Conservation Commission because such sources will not make a significant contribution of air contaminants to the atmosphere.  A list of exemptions is available upon request from the Executive Director of the Commission.

******************* end 116.6 *************************


§116.07.  [Request for Exemptions]

36   For sources not currently on the exemption list specified in [Section] 116.6, any person may request, in writing, the Executive Director to exempt a facility or type of facility.  Unless a facility is exempted by the Executive Director of the Texas Natural Resource Conservation Commission on the basis that such source will not make a significant contribution of air contaminants to the atmosphere, a permit to construct and operate must be obtained in accordance with the requirements of Sections 3.27 and 3.28 of the Texas Clean Air Act.

********************** end 116.7 *********************


§116.08 [Local Air Pollution Control Agencies]

36    Installations exempted by the Texas Natural Resource Conservation Commission may be required by local air pollution control agencies to receive a permit or permits from that agency, or register with that agency.
NOTE TO READER:  Section 116.08 is no longer in the State regulations.   However it has not been removed form the Texas SIP.  Section 116.08 therefore remains in the Texas SIP.

******************** end 116.08 ************************


§116.10.  Public Notification and Comment Procedure.

     (a)  Public Notification Procedures.

97E       (1)  General requirement.  Within 90 days of receipt of a  construction permit application, the Executive Director of the Texas Natural Resource Conservation Commission (TNRCC) shall mail a written notification  informing the applicant that the application is complete or that it is deficient.  If the application is deficient, the notification shall state any additional information required.  Additional information may be requested within 60 days of receipt of the information provided in response to the deficiency notification.  If the application is complete, for any permit subject to the Federal Clean Air Act (FCAA), Part C or D or to 40 CFR 51.165(b), the Executive Director shall state his preliminary determination to issue or deny the permit and require the applicant to conduct public notice of the proposed construction.  If an application is received for a permit not subject to the FCAA, Part C or D or to 40 CFR 51.165(b), the Executive Director shall require the applicant to conduct public notice of the proposed construction.  In all cases, public notice shall include the information specified in paragraph (3) of this subsection and the applicant shall provide such  notice using each of the methods specified in paragraphs (3) and (4) of this subsection.  The Executive Director may specify that additional information needed to satisfy public notice requirements of 40 CFR 52.21 also be included in the notice published pursuant to paragraph (3) of this subsection.

38        (2)  Availability of application for review.  The Executive Director shall make the completed application (except sections relating to confidential information) and the preliminary analyses of the application completed prior to publication of the public notice available for public inspection during normal business hours at the TNRCC's Austin offices and at the appropriate TNRCC regional office in the region where construction is proposed throughout the comment period established in the notice published pursuant to Section 116.10(a)(3).

97C       (3)  Publication in public notices section of newspaper.  At the applicant's expense, notice of intent to construct shall be published in the public notice section of two successive issues of a newspaper of general circulation in the county where the proposed facility is to be located.  The notice shall contain the following information:

               (A)  permit application number;
               (B)  company name;
               (C)  type of facility;
               (D)  location of facility;
               (E)  contaminants to be emitted;
               (F)  preliminary determination of the
Executive Director to issue or not issue the permit (for permits subject to the Federal Clean Air Act, Part C or D or to 40 CFR 51.165(b));
               (G)  location and availability of copies of the completed permit application and the TNRCC's preliminary analyses thereof;
               (H)  public comment period;
               (I)  procedure for submission of public comments concerning the proposed construction;
               (J)  notification that a person who may be affected by emission of air contaminants from the facility is entitled to request a hearing in accordance with TNRCC rules; and
               (K)  name, address, and phone number of the regional TNRCC office to be contacted for further information.

97A       (4)  Publication elsewhere in the newspaper.  Another notice with a size of at least 96.8 square centimeters (15 square inches) and whose shortest dimension is at least 7.6 centimeters (three inches) shall be published in a prominent location elsewhere in the same issues of the newspaper and shall contain the information specified in paragraph (3)(A)-(D) of this subsection and note that additional information is contained in the notice published pursuant to paragraph (3) of this subsection in the public notice section of the same issue.

          (5)  Posting of notice at the proposed site.  NOT IN SIP

NOTE TO READER:  Section 116.10(a)(6) below was approved as section 116.10(a)(5) on August 13, 1982 at 47 FR 36819.

38        (6)  Notification of Texas Natural Resource Conservation Commission and others.  When newspaper notices are published in accordance with paragraphs (3) and (4) of this subsection, the permit applicant shall furnish a copy of such notices and date of publication to the Texas Natural Resource  Conservation Commission in Austin, Texas; the Environmental Protection Agency Regional Administrator in Dallas, Texas; all local air pollution control agencies with jurisdiction in the county in which the construction is to occur; and the air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions from the new or modified facility.

97G,I      (7)  Exemption of previously permitted facilities.
97I              Upon written request by the owner or operator of a facility which previously has received a permit or special permit from the TNRCC, the Executive Director or his designated representative may exempt the relocation of such facility from the requirements of this section if he finds no indication that operation of the facility at the proposed new location will significantly affect ambient air quality and no indication that operation of the facility at the proposed new location will create a nuisance.

     (b)  Comment procedures.

97I       (1)  Comment period.  Interested persons may submit written comments, including requests for public hearings pursuant to the Texas Clean Air Act, section 3.271(c), on the construction permit application and on the Executive Director's preliminary decision to issue or not to issue the permit to the Executive Director.  All such comments and hearing requests must be received in writing within 30 days of the last publication date of the notices specified in subsection (a)(3) and (4) of this section.  The comment period for continuance reviews of operating permits and for concrete batch plants which meet the conditions of a standard exemption is 15 days.  All written comments submitted to the Executive Director pursuant to this subsection shall be considered in determining whether to issue or not to issue the permit.

38        (2)  Consideration of comments.  All written comments received by the Executive director during the period specified in paragraph (1) of this subsection shall be considered in determining whether to issue or not to issue the permit.  The Executive Director shall make record of all comments received together with the agency analysis of such comments available for public inspection during normal business hours at the Austin office of the TNRCC and appropriate regional office.
     (c)  Notification of final action.

97E       (1)  Notification of applicant.  Within 180 days of receipt of a completed application, the Executive Director shall notify the applicant for a construction permit of his final decision to grant or deny the permit, provided:

97E            (A)  No request for public hearing or public meeting on the proposed facility have been received;

97E            (B)  The applicant has satisfied all public notification requirements of this section; and

97E            (C)  The federal regulations for Prevention of Significant Deterioration of Air Quality do not apply.

38        (2)  Notification of commenters.  Persons submitting written comments in accordance with subsection (b)(1) of this section or persons submitting written request to be notified of the final agency action within the comment period specified in subsection (b)(1) of this section will be notified of the Executive Director's final decision at the same time that the applicant is notified.

97I  (d)  Notification of new determinations as to best available control technology.  If the requirements of any permit to construct will incorporate a new determination of best available control technology pursuant to section 116.3(a)(3) of this title (relating to Consideration for Granting Permits to Construct and Operate), the Executive Director shall so notify the public by publication of a notice in the Texas Register within 60 days after the issuance of any such permit.

97E,I  (e)  If the time limits provided in this section to process an application are exceeded, the applicant may appeal in writing to the Executive Director.  If the Executive Director finds that the permit was not issued or denied within the specified period and that the agency exceeded that period without good cause, as provided in Vernon's Texas Civil Statutes 6252-13(b).1, section 3, the Executive Director shall reimburse the permit fee which was remitted with the application.

************************ end 116.10 ***********************


§116.11.  Permit Fees.

52      (a)  Applicability.
63      Any person who applies for a permit to construct a new facility or to modify an existing facility pursuant to Section 116.1 of this title (relating to Construction Permit) shall remit, at the time of application for such permit, a fee based on the estimated capital cost of the project.  The fee will be determined as set forth in subsection (b) of this section (relating to Determination of Fees).  By May 31, 1986, the Executive Director shall review the fees assessed and the costs recovered pursuant to this rule and present to the Commission a report of the results of such review which shall include recommended changes to the rule as may be appropriate.


63    (b)  Determination of fees.

63         (1)  The estimated capital cost of the project is the estimated total cost of the equipment and services that would normally be capitalized according to standard and generally accepted corporate financing and accounting procedures.

63         (2)  The following fee schedule may be used by a permit applicant to determine the fee to be remitted with a permit application:

63              (A)  If the estimated capital cost of the project is less than $300,000, the fee is $300.

63              (B)  If the estimated capital cost of the project is $300,000 to $50 million, the fee is 0.1 percent of the estimated capital cost of the project.

63              (C)  If the estimated capital cost of the project is over $50 million, the fee is $50,000.

97I        (3)  An application for a construction permit or permit amendment for which the fee is calculated according to the schedule included in paragraph (2) of this subsection shall include a certification that the estimated capital cost of the project as defined in paragraph (1) of this subsection is less than or equal to the cost estimate used to determine the required fee if the estimated capital cost of the project is less than $50 million.  Certification of the estimated capital cost of the project may be spot checked and evaluated for reasonableness during permit processing.  The reasonableness of project capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed in subparagraphs (A) and (B) of this paragraph.

52              (A)  Direct Costs
                     (i)  Process and control equipment not previously owned by the applicant and permitted at this site.
                     (ii)  Auxiliary equipment, including exhaust hoods, ducting, fans, pumps, piping, conveyors, stacks, storage tanks, waste disposal facilities.
                     (iii)  Freight charges.
                     (iv)  Site preparation (including demolition), construction of fences, outdoor lighting, road, and parking areas.
                     (v)  Installation (including foundations), erection of supporting structures, enclosures or weather protection, insulation and painting, utilities and connections, process integration, and process control equipment.
                     (vi)  Auxiliary buildings, including materials storage, employee facilities, and modifications to existing structures.
                     (vii)  Ambient air monitoring network.

52              (B)  Indirect Costs
                     (i)  Final engineering design and supervision, securing air quality permits, and administrative overhead.
                     (ii)  Construction expense, (including construction liaison), securing local building permits, insurance, temporary construction facilities, and construction clean-up.
                      (iii)  Contractor's fee and overhead.

97P        (4)  A fee of $75,000 shall be required if no estimate of project capital cost is included with a permit application.


63    (c)  Payment of Fees.
63         All permit fees will be remitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission and delivered with the application for construction permit, special permit, or permit amendment to the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Austin, Texas 78753.  Required fees must be received before the agency will begin examination of the application.


52    (d)  Single Fee

52         The Executive Director may elect to charge only one fee for multiple permits issued for one project if he determines that the conditions set forth in paragraphs (1) - (4) of this subsection are met.

52         (1)  all the component or separate process being permitted are integral or related to the overall project;

52         (2)  the project is under continuous construction of the component parts;

52         (3)  the permitted facilities are to be located on the same or contiguous property;

52         (4)  applications for all permits for the project must be submitted at the same time.


63    (e)  Fees not required.
97I        Fees will not be charged for operating permits, permit revisions, amendments to special permits, standard exemptions, site approvals for permitted portable facilities, changes of ownership, or changes of location of permitted facilities.


63    (f)  Return of fees.
97I        Fees must be paid at the time an application for construction permit, or permit amendment is submitted.  If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, one-half of the fee will be refunded except that the entire fee will be refunded for any such application for which a standard exemption is allowed.  No fees will be refunded after an inadequate application has been voided or after a permit or amendment has been issued by the agency.

********************* end 116.11 ************************


§116.14.  Compliance History Requirements.
As adopted by TACB October 16, 1992, effective December 9, 1992 (6-30).
Approved by EPA September 27, 1995 (60 FR 49781) effective November 27, 1995 (TXc97R).

     (a)  Definitions.
          Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Commission, the terms used by the Commission have the meanings commonly ascribed to them in the field of air pollution control.  In addition to the terms which are defined by the TCAA, the following terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

          Adjudicated decision - Any conviction, final order, judgment, or decree as follows:
               (1) a criminal conviction of the applicant in any court for violation of any law of this state, another state, or of the United States (U.S.) governing air contaminants;
               (2) a final order, judgment, or decree of any court or administrative agency, or agreement entered into settlement of any legal or administrative action brought in a court or administrative agency, addressing:
                    (A) the applicant's past performance or compliance with the laws and rules of this state, another state, or of the U.S. governing air contaminants; or
                    (B) the terms of any permit or order issued by the Commission; or
               (3)  an order of any court or administrative agency, whether final or not, respecting air contaminants for the facility that is the subject of the permit application.

          Compliance event - An adjudicated decision or compliance proceeding as defined in this subsection.
 
          Compliance history - The record of an applicant's observance of air pollution control laws and rules of the State of Texas, other states, and of the U.S.  Except as provided in subsection (e) of this section, the history shall be for the five-year period prior to the date on which the application for issuance, amendment, or renewal is filed. The compliance history shall include all compliance events, as defined in this subsection.

          Compliance proceeding - A notice of violation issued by TNRCC or other agency for which TNRCC has recommended formal enforcement action and has notified the applicant of such recommendation.

          Existing site - A plant property that is not a new site.

          New site - A plant property having an operating history less than five years in length as of the date of application.

          Public notice - The public notice of application for a permit as required by section 116.10(a) of this chapter.

     (b)  Applicability of Compliance History Requirements.
          (1) Except as provided in subsection (c) of this section, as part of its construction permit review, or the review of an amendment, or renewal of an existing permit, Texas Natural Resource Conservation Commission (TNRCC) shall compile the following information:

               (A) for a new facility at an existing site or for an amendment or renewal of an existing permit, the compliance history for the existing site;
 
               (B) for a new facility at a new site, compliance history on similar facilities, if any, owned or operated by the applicant in Texas.  The TNRCC may require the applicant to indicate which facilities the applicant considers to be similar.
   
          (2) For a facility at a new site, if the applicant does not own or operate a similar facility in Texas, the applicant shall provide the TNRCC with a compliance history for similar facilities owned or operated by the applicant in other states.
   
     (c)  Compliance History Exemptions.
          The TNRCC shall not be required to compile a compliance history where the total increased actual emissions of any specific contaminant (specific substance, e.g., benzene, arsenic, etc.) from the facility or site will be accompanied by greater than a 1.1 to 1 reduction of the same specific air contaminant (specific substance, e.g., benzene, arsenic, etc.) from the facility or site.
 
     (d)  Contents of compliance history.

          (1)  The compliance history shall include a listing of all adjudicated decisions and compliance proceedings, as defined in this section, involving the facility that is the subject of the permit application.
 
          (2) If the applicant has no compliance history in the U.S., then the applicant shall provide TNRCC with a compliance history for any similar facilities owned or operated by:

               (A) a person who is presently an officer, director, or agent of the applicant;
 
               (B) a parent corporation, subsidiary, or predecessor in interest of the applicant;
 
               (C) one who owns 20 percent or more of the applicant, whether directly, as a shareholder, partner, beneficiary, or otherwise; or
 
               (D) one who controls the applicant or has the ability to direct the conduct of the applicant.
   
          (3) The compliance history shall include the following compliance events and associated information:

               (A) for Texas facilities:

                    (i) criminal convictions known to TNRCC and civil orders, judgments, and decrees identified by stating:

                         (I) the style of the case;
 
                         (II) the tribunal issuing the conviction or judgment;
 
                         (III) the docket number and the date of action; and
 
                         (IV) the general nature of the alleged violation;
   
                    (ii) administrative enforcement orders identified by stating:

                         (I) the name or style of action;
 
                         (II) the agency issuing the order;
 
                         (III) the docket number and the date of the order; and
 
                         (IV) the general nature of the alleged violation;
   
                    (iii) compliance proceedings identified by stating:

                         (I) the name or style of action; and
 
                         (II) the general nature of the alleged violation;
     
               (B) for United States facilities outside Texas:

                    (i) criminal convictions and civil judgments identified by stating:

                         (I) the style of the case;
 
                         (II) the tribunal issuing the conviction or judgment,
 
                         (III) the docket number and date of action; and
 
                         (IV) the general nature of the alleged violation;
   
                    (ii) administrative enforcement orders identified by stating:

                         (I) the name or style of action;
 
                         (II) the agency issuing the order;
 
                         (III) the docket number and the date of the order; and
 
                         (IV) the general nature of the alleged violation;
   
                    (iii)  for Notices of Violation issued by the U.S. Environmental Protection Agency (EPA):

                         (I) the name of the action;
 
                         (II) the EPA identification number and date of notice; and
 
                         (III) the general nature of the alleged violation.
       
          (4) In compiling the applicant's compliance history pursuant to subsection 116.14(b), the TNRCC shall not include the following:

               (A) violations of fugitive emission monitoring and recordkeeping requirements imposed either by section 101.20(1) and (2) of the general rules of the TNRCC, or
 
               (B) State Implementation Plan requirements applicable to major sources in nonattainment areas where:

                    (i) violations occurring after the effective date of this rule have been the subject of a TNRCC administrative enforcement action and the Commission classified those violations as not being subject to compliance history review; or
 
                    (ii)  violations occurring during five years preceding the effective date of this rule that have been the subject of TNRCC administrative enforcement action in which:

                         (I) the TNRCC did not classify those violations as either major seriousness or major impact for the purpose of administrative review; and
 
                         (II) the Commission assessed a total administrative penalty of less than twenty thousand dollars ($20,000) for any of those violations.
       
          (5) The TNRCC may request an analysis of the significance of any of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application.  The TNRCC request shall list specific compliance events requiring such an analysis.
   
     (e)  Effective Dates.
          The requirements of this section apply only to applications filed on or after the effective date of this section.  For applications filed before June 1, 1993, neither the TNRCC nor the applicant is required to include compliance events occurring before June 1, 1988.  For applications filed on or after June 1, 1993, neither the TNRCC nor the applicant is required to include compliance events occurring more than five years prior to the date on which the application is filed.
 
     (f)  Public notice of Existence of Compliance History.
          When public notice is required pursuant to section 116.10(a) of this chapter, the applicant shall include the following statement in the notice: "The facility's compliance file, if any exists, is available for public review in the regional office of the TNRCC."
 
     (g)  No Derogation of Existing Rights and Procedures.
          Nothing in this subsection shall diminish the rights of any party in a contested case hearing to raise any issue authorized by Section 382.0518(c) of the Texas Health and Safety Code, nor diminish the rights of any person to request and obtain compliance history information from TNRCC.  Nothing in this subsection shall limit the authority of the Commission to request and consider any other information that is relevant to the application under the law.  Nothing in this subsection shall create any right in third parties which did not exist before the effective date of this subsection.
 
     (h)  Voidance of Permit Applications.
          If an applicant does not submit data within 180 days, as requested, the TNRCC will void the permit application.  The applicant will also forfeit the fees associated with the permit application.  A new permit application shall be required for further consideration by the TNRCC.

****************** end 116.14 *************************
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