Regulatory Text: 
Section 116.03.  Consideration for Granting a Permit to Construct and Operate. 

(As approved by EPA 08/19/97 (62 FR 444087 at 52.2270(c)(102) effective 10/20/97.  Left justified number before each paragraph is 40 CFR 52.2270(c) section where paragraph was last approved by EPA.  See SIP Map record for Federal Register approval date and effective date.)


  (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), sectopm 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.

102B      (9) Repealed from SIP August 19, 1997 (62 FR 44087),
              at 52.2270(c)(102) effective October 20, 1997.
              Replaced by § 116.161.

 
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 nonattainment 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. 
  

102B      (11) Repealed from SIP August 19, 1997 (62 FR 44087),
               at 52.2270(c)(102) effective October 20, 1997.      
               Replaced by § 116.160.
 
102B      (12) Repealed from SIP August 19, 1997 (62 FR 44087),
               at 52.2270(c)(102) effective October 20, 1997.
               Replaced by § 116.162.

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. 
  
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