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You are here: Home / Permitting / Air Permits / PermitByRule / Historical Rules / old116 / 783 / Title 31 TAC Chapter 116, July 13, 1983

Title 31 TAC Chapter 116, July 13, 1983

Synopsis of specific rules from air permitting that were in effect on this date.

116 Rule

116.1 Construction Permit
116.2 Responsibility for Obtaining Permit or exemption
116.3 Consideration for Granting Permits to Construct and Operate
116.4 Special Conditions
116.5 Representations in Application for Permit or exemption
116.6 exemptions
116.7 Request for exemption
116.8 Local Air Pollution Control Agencies
116.9 Effective Date
116.10 Public Notification and Comment Procedure
116.11 Permit Fees

§ 116.1 Construction Permit

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 construction permit or an exemption from the Texas Air Control Board or satisfy the conditions for a standard exemption as published by the Executive Director 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 within sixty days after the facility has begun operation, unless this sixty day period has been extended by the Executive Director.

§ 116.2 Responsibility for Obtaining Permit or exemption

The owner of the facility or the operator of the facility authorized to act for the owner is responsible for applying for and obtaining an exemption or a permit to construct and operate or for seeing that the conditions for a standard exemption as published by the Executive Director are satisfied.

§ 116.3 Consideration for Granting Permits to Construct and Operate

(a) Permit to construct.

In order to be granted a permit to construct, the owner or operator of the proposed facility shall submit information to the Texas Air Control Board which will demonstrate that all of the following are met:

(1) The emissions from the proposed facility will comply with all Rules and Regulations of the Texas Air Control Board and with the intent of the Texas Clean Air Act, including protection of the health and physical property of the people.

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

(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 from the facility.

(4) The emissions from the proposed facility will meet, at least, the requirements of 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.

(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 Environmental Protection Agency pursuant to authority granted under Section 112 of the Federal Clean Air Act, as amended.

(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 a permit to construct.

(7) All requirements of Section 129(a)(1) of the Clean Air Act Amendments of 1977 (PL 95-95). This provision shall not apply to new or modified facilities for which construction permits are issued after June 30, 1979.

(8) After June 30, 1979, the owner or operator of a proposed new facility which is a major stationary source of volatile organic compound emissions or which is a facility that will undergo a major modification with respect to VOC emissions and which is to be located in any area designated as nonattainment for ozone in accordance with Section 107 of the Federal Clean Air Act shall demonstrate that the following additional requirements are met:

(A) The proposed facility will comply with the lowest achievable emissions rate (LAER) as defined in Chapter 101 of this title (relating to General Rules).

(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.

(9) After June 30, 1979, the owner or operator of a proposed new facility which is a major stationary source of volatile organic compounds (VOC) or which is a facility that will undergo a major modification with respect to VOC emissions, and which is to be located in Dallas, El Paso, Harris, Nueces or Tarrant County will provide information concerning his 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 Administrator of the U.S. E.P.A. in 40 C.F.R., Part 52, Subpart SS, prior to the application for the construction permit so as to represent reasonable further progress as defined in Chapter 101 of this title (relating to General Rules).

(10) The owner or operator of a proposed facility which will be a major stationary source of VOC emissions or will undergo a major modification and is to be located in any area designated as nonattainment for ozone in accordance with Section 107 of the Federal Clean Air Act for which regulations and a control strategy providing for attainment of the standard have not been approved by the U.S. E.P.A. shall demonstrate that at the time that the facility is to commence operation a net decrease in total allowable VOC emissions in the area has been provided taking into account any increases in emissions resulting from operation of the proposed new facility or modification.

(11) After June 30, 1979, 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 volatile organic compounds (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 § 101.1 of this title (relating to Definitions) in any area where the standard is exceeded or predicted to be exceeded.

(A) The proposed facility will comply with the lowest achievable emissions rate (LAER) as defined in § 101.1 of this title (relating to Definitions).

(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.

(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.

(12) The owner or operator of a proposed new facility in a designated nonattainment area which will be a major stationary source or a major modification of an existing facility for any air contaminant other than volatile organic compounds for which a national ambient standard has been issued must meet the following additional requirements regardless of the degree of impact of its emissions on ambient air quality if the facility is located in a designated nonattainment area:

(A) The proposed facility will comply with the lowest achievable emissions rate (LAER) as defined in § 101.1 of this title (relating to Definitions) for the nonattaining pollutants.

(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.

(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.

(b) Permit to operate

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

(1) The facility is complying with the Rules and Regulations of the Texas Air Control Board and the intent of the Texas Clean Air Act.

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

(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.

(4) The facility is being operated in accordance with any applicable national 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.

(c) Emission reductions: offset.

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:

(1) The emission reductions are not required by any provision of the Texas State Implementation Plan as promulgated by the Administrator of the U.S. E.P.A. in 40 C.F.R., Part 52, Subpart SS, nor by any other federal regulation under the Federal Clean Air Act, as amended, such as New Source Performance Standards.

(2) The applicant furnished documentation at the time of his permit application to substantiate his claim of emission reductions previously effected. The following information must be included in the documentation:

(A) Location and identity of the source(s) where emissions are reduced.

(B) Chemical composition of emissions reduced.

(C) Date(s) when emission reductions occurred.

(D) Amount of emission reductions expressed in rates of tons per year and in pounds in hour.

(E) A complete description of the reduction method (i.e., source shutdown, process or operational change, type of control device, etc.).

(F) A certification by the applicant that the emission reductions have in fact been achieved and that the same reductions have not been used previously and will not be used subsequently to offset another source.

(G) Any other pertinent detailed descriptive information that may be requested by the Executive Director.

(d) Determination by Executive Director.

The Executive Director may grant authority to a permit applicant to use prior emission reductions and emission reductions granted to the applicant by another entity (either public or private) in accordance with subsection(c) of this section if he determines that the prior emission reductions have, in fact, occurred and when considered with other emission reductions that maybe required by the permit, as well as contaminants that will be emitted by the new source, will result in compliance with subsection (a)(10), (11) and/or (12)(C) of this section (whichever is applicable), in the area where the new source is to be located. Prior, as well as future emission reductions to be used as offset will be made conditions for granting authority to construct the proposed new source and will be enforced.

(e) Records.

The Executive Director will maintain no records of emission offset credits claimed by an applicant in accordance with subsection (c) of this section other than those contained in permit application and permit files. The applicant shall maintain all records necessary to substantiate claims of emission reductions and shall make such records available for inspection upon request of the Executive Director.

(f) Effective Date. This amended section shall be effective thirty days after the filing of certified copies in the office of the Secretary of State.

§ 116.4 Special Conditions

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.

§ 116.5 Representations in Application for Permit or exemption

All representations with regard to construction plans and operation procedures in an application for a permit to construct or a permit to operate or in any request for an exemption become conditions upon which a subsequent exemption 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 or exemption in that regard and such amendment is approved by the Executive Director.

§ 116.6 exemptions

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 Air Control Board 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 Board.

§ 116.7 Request for exemption

For sources not currently on the exemption list specified in t.6 of this title (relating to exemptions), 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 Air Control Board 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.

§ 116.8 Local Air Pollution Control Agencies

Installations exempted by the Texas Air Control Board may be required by local air pollution control agencies to receive a permit or permits from that agency, or register with that agency.

§ 116.9 Effective Date

The rules contained in this chapter shall be effective 30 days after filing with the Secretary of State, unless otherwise specified.

§ 116.10 Public Notification and Comment Procedures

(a) Public Notification Procedures

(1) General Requirement. Within thirty days of receipt of a completed construction permit application, as determined by the Executive Director of the Texas Air Control Board, the Executive Director shall mail a written notification to the permit applicant acknowledging receipt of the application, stating his preliminary determination to issue or not issue the permit, and requiring the applicant to provide public notice of the proposed construction, which shall include the information specified in paragraph (3) of this subsection. The applicant shall provide such notification 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.

(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 TACB's Austin offices and at the appropriate TACB regional office in the region where construction is proposed throughout the comment period established in the notice published pursuant to paragraph (3) of this subsection.

(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.
(G) Location and availability of copies of the completed permit application and the TACB's preliminary analyses thereof
(H) Public comment period and
(I) Procedure for submission of public comments concerning the proposed construction.

(4) Publication Elsewhere in the Newspaper. Another notice with a size of at least 7.5 by 12.5 centimeters (3 by 5 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) through (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) Notification of Texas Air Control Board 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 Air Control Board 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.

(6) exemption of Previously Permitted Facilities.

(A) Upon written request by the owner or operator of a facility which previously has received a permit from the Texas Air Control Board, the Executive Director or his designated representative may exempt the relocation of such facility from the requirements of this section if he finds: i) No indication that operation of the facility at the proposed new location will significantly affect ambient air quality; and ii) No indication that operation of the facility at the proposed new location will create a nuisance.

(B) Upon written request by the new owner of a facility which previously has received a permit from the Texas Air Control Board, the Executive Director may exempt the change of ownership of the facility from the requirements of this section if he finds: i) There will be no change in the type of pollutants emitted; and ii) There will be no increase in the quantity of pollutants emitted.

(b) Comment Procedures.

(1) Comment Period. Interested persons may submit written comments 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 must be received in writing within thirty (30) days of the last publication date of the notices specified in subsection (a)(3) and (4) of this section.

(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 Texas Air Control Board and appropriate regional office.

(c) Notification of Final Action.

(1) Notification of Applicant. The Executive Director shall notify the applicant for a construction permit as expeditiously as possible of his final decision to grant or deny the permit.

(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.

(d) Notification of New Determinations as to Best Available Control Technology.

If the requirements of any permit will incorporate a new determination of best available control technology pursuant to § 116.3(a)(6) of this title (relating to Consideration for Granting Permits to Construct and Operate) which may affect a class or category of sources, the Executive Director shall so notify the public by publication of a notice in the Texas Register at least 15 days prior to the issuance of any such permit.

(e) Effective Date.

This section and amendments thereto shall be effective one hundred twenty (120) days after the filing of certified copies in the office of the Secretary of State and shall apply only to applications for permits to construct received on or after the effective date.

116.11 Permit Fees

(a) Applicability

Any person who applies for a permit to construct a new or modify an existing facility pursuant to § 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).

(b) Determination of Fees

(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.

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

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

(B) If the estimated capital cost of the project is $300,000, to $7.5 million, the fee is 0.1% of the estimated capital cost of the project.

(C) If the estimated capital cost of the project is over $7.5 million, the fee is $7,500.

(3) An application for a construction permit 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 $7.5 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.

(A) Direct Costs

(i) Process and control equipment not previously owned by the applicant and permitted in Texas

(ii) Auxiliary equipment, including exhaust hoods, ducting, fans, pumps, piping, conveyors, stacks, storage tanks, waste disposal facilities and air pollution control equipment specifically needed to meet permit and regulation requirements

(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 building, including materials storage, employee facilities and changes to existing structures

(vii) Ambient air monitoring network

(B) Indirect Costs

(i) Final engineering design and supervision 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

(4) A fee of $7500 shall be required if no estimate of capital project cost is included with a permit application.

(c) Payment of Fees

All permit fees will be remitted in the form of a check or money order made payable to the Texas Air Control Board, and delivered with the application for construction permit to the TACB, 6330 Highway 290 East, Austin, Texas, 78723. Required fees must be received before the agency will begin examination of the application.

(d) Single Fee

The Executive Director shall 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.

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

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

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

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

(e) Fees not required

Fees will not be charged for operating permits, permit amendments, permit revisions, exemptions, site approvals for permitted portable facilities, changes of ownership or changes of location of permitted facilities.

(f) Return of fees

Fees must be paid at the time an application for construction permit is submitted. If no permit is issued by the agency or if the applicant withdraws the application prior to issuance of the permit, one half of the fee will be refunded except that the entire fee will be refunded for any such permit application for which a specific or standard exemption is issued. No fee will be refunded after a permit has been issued by the agency.


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