Title 30 TAC Chapter 116 Rule Change, July 8, 1998
Permanent Rule AdoptionSubchapters A, B, C, D, F, G NSR Rule Revisions; § 112(g)/Rule Review for Chapter 116
1. Purpose. This change transmittal provides the page(s) that reflect changes and additions to the Texas Natural Resource Conservation Commission (commission) Volume of Permanent Rules.
2. Explanation of Change. On June 17, 1998, the commission adopted the repeal of § § 116.10, 116.11, 116.13, 116.14, 116.110-116.112, 116.114-116.118, 116.120-116.126, and 116.310-116.314 and new § § 116.10, 116.11, 116.13-116.15, 116.110-116.112, 116.114-116.118, 116.120-116.126, 116.180-116.183, and 116.310-116.314, concerning Control of Air Pollution by Permits for New Construction or Modification.
The commission also adopted amendments to § § 116.130-116.134, 116.136, 116.137, 116.140, 116.141, 116.143, 116.160, 116.161, 116.170, 116.174, 116.610, 116.611, 116.614, 116.615, 116.617, 116.620, 116.621, 116.710, 116.711, 116.714, 116.715, 116.721, 116.730, 116.740, and 116.750, concerning Control of Air Pollution by Permits for New Construction or Modification.
Sections 116.14, 116.15, 116.110, 116.111, 116.115-116.117, 116.121, 116.122, 116.133, 116.137, 116.141, 116.180, 116.182, 116.183, 116.311, 116.312, 116.610, 116.620, 116.621, 116.711, and 116.740 were adopted with changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2953). Sections 116.10, 116.11, 116.13, 116.112, 116.114, 116.118, 116.120, 116.123-116.126, 116.130-116.132, 116.134, 116.136, 116.140, 116.143, 116.160, 116.161, 116.170, 116.174, 116.181, 116.310, 116.313, 116.314, 116.611, 116.614, 116.615, 116.617, 116.710, 116.714, 116.715, 116.721, 116.730, and 116.750 and the repeals were adopted without changes and will not be republished.
3. Effect of Change. The commission adopted a new § 116.15 and a new Subchapter C, § § 116.180-116.183, for the purpose of implementing a program to meet the requirements of Title III of the 1990 Federal Clean Air Act (FCAA) concerning Hazardous Air Pollutants, § 112(g), Modifications, as set forth in 40 Code of Federal Regulations (CFR) Part 63, § § 63.40-63.44, as amended December 27, 1996, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§ 112(g)). Section 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of a case-by-case maximum achievable control technology (MACT) if a major source of hazardous air pollutants (HAPs) is constructed or reconstructed before the United States Environmental Protection Agency (EPA) issues a MACT standard or air toxics regulation for that particular category of sources or facilities.
Changes were made throughout the rules as the result of ongoing efforts by the commission for regulatory reform. These changes are for purposes of simplification and clarification only and do not involve substantive changes in the requirements of this chapter. In order to simplify the regulatory reform effort, the commission proposed the repeal of § § 116.10, 116.11, 116.13, 116.14, 116.110-116.112, 116.114-116.118, 116.120-116.126, and 116.310-116.314 (these sections are being adopted by the commission with the changes made under regulatory reform and in response to comments). By repealing these sections, the commission was able to revise the language without having to make extensive use of the editing requirements of the Texas Register. Changes proposed in the Texas Register must be shown by using underlining and bracketing. The commission was concerned that significant revisions to the rules would be difficult for the regulated community and the public to read and comment on if the underlining and bracketing editing marks were used. In general, these changes involve using shorter sentences, limiting each citation to one main concept, reordering requirements into a more logical sequence, and using more commonplace terminology. Several suggestions of alternative language from that proposed by the commission were received. This preamble will discuss any changes to the rule language in the appropriate sections of the preamble. Although sections of Subchapter F, concerning Standard Permits, and Subchapter G, concerning Flexible Permits, were revised, these subchapters were not included in this extensive regulatory reform effort. In addition, not all of Subchapter B was included. These subchapters and remaining sections will be reviewed at a later date for purposes of regulatory reform.
The division related to nonattainment permitting and Subchapter E related to emergency orders have not been included in this rulemaking, since they are expected to be revised in subsequent rulemakings that are on a different schedule. Those sections will be reviewed for regulatory reform purposes at that time.
The following paragraphs describe the adopted amendments to Chapter 116 by subchapter.
Section 116.10, General Definitions, § 116.11, Compliance History Definitions, § 116.13, Flexible Permit Definitions, and § 116.14, Standard Permit Definitions, were included in the regulatory reform review. These sections contain definitions that are used throughout Chapter 116 and in specific subchapters of Chapter 116. The commission is readopting the definitions because they are necessary for the implementation of the requirements of Chapter 116. The definitions provide information that assists the regulated community and the public in fully understanding the requirements of the subchapters to which they are related.
The commission amended Subchapter A by deleting those definitions that are identical or essentially the same as those in 30 TAC Chapter 101, concerning General Rules. As a result, in Chapter 116, the definitions of "de minimis impact" and "emissions unit" were deleted to eliminate redundancy.
In addition, the commission adopted amendments to the definitions that reference exemptions from permitting by referring to 30 TAC Chapter 106, concerning exemptions from Permitting. These references were proposed in response to the recent revision to Chapter 116 that moved exemptions to Chapter 106. Correct references to the new exemption chapter, or specific sections within that chapter, have been made throughout the rules.
The definition of "federally enforceable" is revised to include the requirements of 30 TAC Chapter 113, Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA § 112, 40 CFR Part 63). These standards (commonly referred to as MACTS) are incorporated by reference into Chapter 113, Subchapter C and this reference is being included simply to direct the reader to the correct chapter of the commission's rules.
The definition of "lead smelting plant" is revised to correct an internal conflict. The former definition stated that processing may include "oxidizing into lead oxide." This conflicts with the last sentence of the definition, which says that a facility that remelts lead bars or ingots is not a lead smelting plant. The conflict arises because lead oxide is only made by melting lead ingots.
Finally, the commission adopted new § 116.15, concerning Section 112(g) Definitions. The definitions contained in § 116.15 will be used in conjunction with Subchapter C, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, § 112(g), 40 CFR Part 63). The definitions in § 116.15 are essentially the same as those contained in 40 CFR 63, § 63.41, concerning Definitions under Subpart B, Requirements for Control Technology (see 61 FR 68399).
The sections in Subchapter B, New Source Review Permits, Division 1: Permit Application (§ 116.110, Applicability, § 116.111, General Application, § 116.112, Distance Limitations, § 116.114, Application Review Schedule, § 116.115, General and Special Conditions, § 116.116, Changes to Facilities, § 116.117, Documentation and Notification of Changes to Qualified Facilities, and § 116.118, Pre-change Qualification), were included in the regulatory reform changes. The commission is readopting these sections because they are necessary in order to implement the new source review permitting requirements of the Texas Clean Air Act (TCAA). In general, these rules describe what a person must do in order to construct a new facility or modify an existing facility. The application and distance limitation sections contain the requirements that must be addressed in applications and provide guidance for how applications will be reviewed by the executive director. The executive director is authorized to include general and special conditions in all permits and the rule contains general conditions that apply to all holders of permits, special permits, standard permits, and special exemptions.
The sections in Subchapter B, New Source Review Permits, Division 2: Compliance History, (§ 116.120, Applicability, § 116.121, exemptions, § 116.122, Contents of Compliance History, § 116.123, Effective Dates, § 116.124, Public Notice of Compliance History, § 116.125, Preservation of Existing Rights and Procedures, and § 116.126, Voidance of Permit Applications), were included in the regulatory reform changes. The commission is readopting these provisions since they are necessary to implement the TCAA requirements in § 382.0518(c) when reviewing applications for initial permit issuance, amendment, or renewal. The sections describe when such a review will be required as well as provide direction for how that review will be conducted and what must be included in the review.
The commission adopted amendments to § 116.110, concerning Applicability, to reference standard permits that currently exist in 30 TAC Chapter 321, Subchapter K, concerning Confined Animal Feeding Operations, 30 TAC Chapter 332, concerning Composting; and 30 TAC Chapter 330, Subchapter N, concerning Landfill Mining. This amendment provides clarification regarding all the standard permits (for air emissions) that are currently available.
The operations certification requirements contained in the existing § 116.110(b) have been deleted as a result of recommendations made by the commission's regional offices and the Office of Compliance and Enforcement. The operations certification requirement created unnecessary reporting and paperwork and can be implemented more effectively through new source review (NSR) permits on a case-by-case basis. The operations certifications were created for the purpose of implementing Texas Health and Safety Code, § 382.0518(f), which gives the commission the authority to require a demonstration from owners and operators that a facility as constructed complies with the terms of the preconstruction permit and that the operation of the facility will not violate any rules or regulations of the commission. The statutory language allows the commission flexibility to determine the time and manner of such demonstration. The rule change does away with the requirement to submit the two forms to the agency which have been found to be unnecessary in practice. The permit holder would not be relieved from the underlying requirements that are the subject of the forms (to have constructed in compliance with their preconstruction permits and to operate in compliance with commission rules and regulations.) These requirements are established by rule in § 116.115(b)(2)(I).
The new § 116.110(c), concerning Exclusion, makes it clear that affected sources (as defined in § 116.15(1), concerning Section 112(g) Definitions) that are subject to Subchapter C are not authorized to use an exemption under Chapter 106, or an authorization under § 116.116(e), concerning changes to qualified facilities. Affected sources subject to Subchapter C can use standard permits under Subchapter F of this chapter if the terms and conditions of the standard permit meet the criteria of Subchapter C. As currently written, none of the existing standard permits meet the criteria of Subchapter C (e.g., there is no requirement for public notice). These changes were made to ensure that applicants obtain the appropriate authorization under Subchapter C and are described in more detail in the section of the preamble addressing Subchapter C.
A new § 116.110(d), concerning change in ownership (formerly § 116.110(c)) is adopted. This subsection was revised to specify that new owners must submit information regarding the date of the change in ownership, the name of the new owner, a contact person for the new owner, and the address and phone number of the new owner.
The commission adopts a new § 116.110(e) to reflect the recent revisions to the Texas Engineering Practice Act (TEPA) which now refers to "licensed" engineers instead of "registered" engineers. The correct name of the Texas Board of Professional Engineers is included. The rule is revised to make clear that for projects with a capital cost above $2 million, the project must be submitted under the seal of a Texas licensed professional engineer.
Section 116.111(2)(E), concerning national emissions standards for hazardous air pollutants for source categories (commonly referred to as MACTs), is revised to reference the requirements of Chapter 113, Subchapter C. The proposed language is modified by the commission to clarify that permit applications must demonstrate compliance with all applicable MACTs. The language, as proposed, may be interpreted as saying that applicants would not have to show compliance with all MACTs, regardless of whether or not the MACTs are listed in Chapter 113, Subchapter C. The proposed language was also in § 116.311(a)(4), concerning Permit Renewal Application, § 116.610(a)(5), concerning Applicability (for standard permits), § 116.620(a)(16), concerning Installation and/or Modification of Oil and Gas Facilities, and § 116.711, concerning Flexible Permit Application. This correction has been made in all of these sections.
Changes are adopted to implement FCAA, § 112(g) and 40 CFR Part 63, Subpart B, requirements in § 116.111(2)(K), concerning general application, to ensure that applicants submit information in permit applications that demonstrates that the requirements of Subchapter C are met.
Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, § 361.102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply. The former § 116.112(b)(4) contained a typographical error that would have allowed the construction of any new commercial hazardous waste management facility or units of a facility to be located within 2,640 feet of any specified off-site receptor. The statutory provision prohibits the construction of a new commercial hazardous waste management facility that would be within 2,640 feet of any specified off-site receptor.
Section 116.115(c), concerning special conditions, is revised to include a reference to the new requirements in Subchapter C. This change allows the executive director to include a special condition in permits requiring permit holders to obtain prior written approval before constructing a facility using a standard permit under Subchapter F or an exemption under Chapter 106, if the change would cause the facility to become subject to Subchapter C. During the administrative and technical review, the executive director may determine that the proposed change will trigger one or more of the prohibitions listed under § 116.115(B)(i) and (ii) and the request for authorization under Subchapter F or Chapter 106 will be denied.
Section 116.116(b)(3) is added to require permit amendments that concern a change subject to Subchapter C to comply with the provisions for public notice and comment under Subchapter B of this chapter. This change was made because 40 CFR Part 63, § 63.43(c)(2)(ii), requires case-by-case MACT determinations to be subject to public notice.
Subsection (f) was added to § 116.116 to authorize the use of discrete emission reduction credits (DERCs) to exceed permit allowables under certain conditions. The commission recently adopted a revised emissions banking and trading rule (22 TexReg 12517) to allow a source to meet emission control requirements by purchasing and using credits generated by another source which has reduced its emissions below the level required by rule or permit. The revised banking rule allows for the use of DERCs to exceed permitted allowable emission levels by a certain amount once within any 24-month period. In ozone nonattainment areas, this exceedance must be 25 tons or less of nitrogen oxides or five tons or less of volatile organic compounds. In other areas, the amount may not exceed the prevention of significant deterioration significance levels as provided in 40 CFR § 52.21(b)(23). In addition to other requirements, these uses must be approved by the executive director and may not cause or contribute to a condition of air pollution. The adopted language of § 116.116(f) allows the use of credits to authorize certain exceedances of permit allowables, and is consistent with existing authorization in Chapter 101.
Section 116.117(a)(4), concerning Documentation and Notification of Changes to Qualified Facilities, is revised to require persons making changes to qualified facilities under § 116.116(e) to maintain documentation which demonstrates that the project will comply with Subchapter C.
A minor amendment was made to § 116.118 that added the word "or" in § 116.118(a)(1). This was done to correct a previous typographical error.
The commission amended § 116.130(a), concerning applicability of public notification and comment procedures, by adding a reference to permit renewals. Applications for permit renewals are already required to go through public notice. This change merely includes a reference to renewals in this section. Subsection (a) was revised to more closely track TCAA, § 382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, by including the phrase "or to be located." This revision does not change the current requirement to publish notice in a newspaper of general circulation in the municipality where the facility is located, or to be located. Section 116.130 was also revised by adding a new subsection (c) that requires applications subject to review under Subchapter C to go through public notice. All applications subject to the requirements of FCAA, § 112(g) and 40 CFR Part 63, Subpart B, whether initial applications or amendments to existing case-by-case MACT determinations, must go through the public notice process. This is because 40 CFR Part 63, Subpart B, § 63.43(c)(2)(ii), requires that all such determinations be subject to public notice.
To assist in the implementation of the commission's directive to facilitate and improve the public notice process, the phone number of the appropriate commission office to contact for further information will now be included as a part of the public notice required in § 116.132(a)(11) and § 116.133(a)(6) rather than the phone number of the appropriate commission regional office.
Section 116.136(a) was revised to correctly refer to the requirement that the executive director make a preliminary determination to issue or deny a permit subject to the FCAA, Title I, Parts C or D or to 40 CFR § 51.165(b) or the availability of the preliminary analysis that is required for other permitting actions. This change makes § 116.136(a) consistent with the requirements of § 116.132(a)(6) and (7), concerning public notice format.
The commission amended § 116.140, concerning Applicability of Permit Fees, by deleting the reference to operating permits and standard exemptions, because these types of authorizations are no longer included in Chapter 116. The reference to operating permits was deleted because the commission no longer issues state operating permits apart from a state construction permit. This should not be confused with federal operating permits issued under 30 TAC Chapter 122, concerning Federal Operating Permits. exemptions from permitting are now contained in Chapter 106.
Section 116.141(b)(1) was amended to specify that any application for new or modified facilities controlled by the federal government will be charged a fee of $450. The former provision qualified the fee requirement for federal government applications submitted after January 1987. Since all of the pre-1987 applications from the federal government have been acted on by the commission, this provision is no longer necessary.
Section 116.141(c)(1)(A) is revised to address an interpretation problem with the current rule. As it was written, the rule confused some applicants and staff concerning the computation of direct costs for facilities that are no longer permitted (e.g., the permit expired and was not renewed). A historical review of this section indicated that the original fee language was added prior to any requirements for renewal (and expiration) of permits. The confusion centered on whether "permitted" meant currently permitted or ever permitted regardless of current status. With two possible interpretations, neither has been consistently applied and the adopted language rectifies this situation. The commission does not believe that it is appropriate to allow the direct costs of process and control equipment of a facility to be excluded if the facility once had a permit but no longer does. Allowing this exclusion would promote the argument that higher renewal fees could be avoided in favor of a minimum new permit fee. It is not expected that this change will result in significantly higher fees and it will ensure that all applications are reviewed consistently for fee determinations.
The commission amended § 116.143 by correcting the commission mailing address where permit fees are submitted. The previous mailing address was a street address rather than a post office box.
The new Subchapter C is intended to meet the requirements of Title III of the 1990 FCAA concerning Hazardous Air Pollutants (HAPs), § 112(g), Modifications, as set forth in 40 CFR 63, § § 63.40-63.44, as amended December 27, 1996. Section 112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of case-by-case MACT if a major source is constructed or reconstructed before EPA issues a MACT standard or air toxics regulation for that particular category of sources or facilities.
40 CFR Part 63, Subpart B, requires the commission to make case-by-case MACT determinations for affected sources (as defined in § 116.15(1), concerning Section 112(g) Definitions) that become subject to § 112(g) prior to the EPA promulgating a MACT that would apply to the affected source. 40 CFR 63, § 63.42, allows states to rely on existing NSR permitting programs to implement the requirements of § 112(g) if the NSR program meets the requirements of that subpart. The commission believes that the adopted revisions to Chapter 116 concerning § 112(g) will successfully implement the requirements of § 112(g) and 40 CFR Part 63, Subpart B.
40 CFR Part 63, § 63.40(b), Overall Requirements, says in part that the "requirements of § § 63.40 through 63.44 of this subpart apply to any owner or operator who constructs or reconstructs a major source of hazardous air pollutants after the effective date of the section 112(g)(2)(B) (as defined in § 63.41) and the effective date of a title V permit program in the State...." The commission interpreted § 63.40(b) as containing a two-part test regarding the effective date of 40 CFR Part 63, Subpart B: the § 112(g) program would not be effective in a state until June 29, 1998, passed and a state had an approved federal operating permit program.
At the time the revisions to Chapter 116 were proposed, the commission understood that the interim approval for the source category limited program was no longer considered to be effective by the EPA (that program was approved on June 25, 1996 (61 FR 32693). The EPA had informed the commission that due to the extensive revisions to Chapter 122 in November 1997, it no longer considered the operating permit program to be approved in Texas. Thus, since § 63.40(b) has a two-part test, the commission believed that the § 112(g) program would not be effective in Texas until June 29, 1998, passed and the EPA approved the November 1997 revisions to Chapter 122.
Based on comments submitted by the EPA in response to the proposed rules, and in discussions with EPA Region VI staff, the commission now understands that EPA has reconsidered its position concerning the source category limited program and now considers it to be the approved federal operating permit program for the state. The EPA believes that once a state has an approved program (whether it is full, interim, or source category limited), then that is the approval that triggers the effective date for § 112(g). Thus, regardless of whether a source is subject to either the full or interim program, once the interim program was approved in June 1996, that is the approval date that is used to trigger the effective date provisions of § 63.40(b).
The commission has revised § 116.180(b) and § 116.182 to make it clear that the § 112(g) program will be effective for all affected sources in Texas on or after June 29, 1998. Thereafter, if a source makes a change subject to Subchapter C, it must apply to the commission for a case-by-case MACT determination under § 116.182, concerning Application, regardless of whether the source is subject to the interim or full operating permit program. Administratively complete applications that are submitted prior to June 29, 1998, will not be subject to the requirements of Subchapter C. Section 116.180(a)(1)(B)(vi) was revised to include a reference to "affected source" and to correct a typographical error that referred to the "executive director" twice in one sentence.
All case-by-case MACT determinations are subject to the public notice requirements of Subchapter B. Thus, affected sources will not be able to use a Chapter 106 exemption or an existing Subchapter F standard permit. Currently, none of the existing standard permits meet the requirements of Subchapter C. Future standard permits may be developed that meet the criteria of Subchapter C.
Affected sources will not be able to use § 116.116(e), concerning changes to qualified facilities, because § 63.43(d)(1) provides that the MACT emission limitation "shall not be less stringent than the emission control which is achieved in practice by the best controlled similar source, as determined by the permitting authority." The commission believes that the use of best available control technology
(BACT) as required by Chapter 116 will, in most cases, meet the level of control contemplated by § 63.43(d)(1). Section 116.116(e) allows for the use of ten-year old BACT for qualified facilities. In some cases, ten-year old BACT may not necessarily be equivalent to today's BACT. If a case-by-case MACT determination is more restrictive than BACT, the affected source will be required to meet the MACT requirements. An additional prohibition on the use of § 116.116(e) is the requirement for case-by-case MACT determinations to go through public notice.
Affected sources will have limited use of flexible permits under Subchapter G. Currently, flexible permits allow for control that exceeds BACT on one facility in lieu of installing controls on other facilities. Section 112(g) and 40 CFR Part 63, Subpart B, require the case-by-case MACT determination to be applied to the specific affected facilities. Therefore, § 116.711(3) was revised to indicate that BACT shall be applied to specific facilities that must comply with Subchapter C. As long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with determinations made under Subchapter C. Again, if a case-by-case MACT determination is more restrictive than BACT, the source will be required to meet the MACT requirements.
In § 116.181, concerning Exclusions, the commission adopts the same set of exclusions that are provided in 40 CFR 63, § 63.40(c)-(f). The commission has determined that in order to provide a program consistent with the requirements of 40 CFR Part 63, § § 63.40-63.44, the same set of exclusions should be provided.
In general, if the owner or operator wants to construct or reconstruct an affected source (as specified in § 116.180(a)(1) and (2), concerning Applicability), then prior to that construction or reconstruction, the owner or operator must apply to the commission for a case-by-case MACT determination under § 116.182, concerning Application. The application must contain the information required by the commission as provided in § 116.111, concerning General Application. In addition, the application must specify the emission controls that will ensure that MACT will be met. Finally, the application for the proposed constructed or reconstructed affected source must undergo the public notice requirements required by § 116.130, which includes a 30-day public comment period and opportunity for a contested case hearing. After fully considering public comments and the results of any hearing, the commission would then issue (or deny) a permit, or approve a permit amendment, authorizing the construction or reconstruction of the affected source. The case-by-case MACT determination codified in a permit issued under Chapter 116 would become an applicable requirement of Chapter 122 after satisfying the appropriate operating permit revision process and would be included as a condition in an operating permit.
The executive director of the commission certifies that the rule as adopted satisfies all applicable requirements established by 40 CFR § § 63.40-63.44 for a § 112(g) program. As outlined in the EPA preamble to the final rules implementing § 112(g) (see 61 FR 68390), the program proposed is not required to have EPA approval before taking effect.
The sections in Subchapter D (§ 116.310, Notification of Permit Holder, § 116.311, Permit Renewal Application, § 116.312, Public Notification and Comment Procedures, § 116.313, Renewal Application Fees, § 116.314, Review Schedule) were included in the regulatory reform changes. The commission is readopting these sections because they implement the TCAA requirements in § 382.055, concerning renewals of NSR permits. The sections include the process for notifying permit holders that their permits are due for renewal and they contain the requirements for renewal fees and the review schedule for a renewal. The contents of a renewal application are described as well as the requirements for public notice of renewals.
Section 116.311(5) is added to include the requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of Subchapter C of this chapter.
Section 116.314, concerning Review Schedule, is amended to refer to the correct chapters of the commission's regulations concerning contested case hearings.
The commission adopts the new § 116.610(d) to clarify that facilities subject to Subchapter C of this chapter are not eligible for a standard permit under Chapter 116, unless the particular standard permit's terms and conditions meet the requirements of Subchapter C. This is because 40 CFR Part 63, § 63.43(c)(2)(ii), requires all case-by-case MACT determinations to be subject to public notice.
Section 116.614, concerning Standard Permit Fees, was amended to correct the commission mailing address where permit fees are submitted. The previous mailing address did not have the correct mail code or zip code.
Section 116.620, concerning Installation and/or Modification of Oil and Gas Facilities, was amended to reference the appropriate exemptions under Chapter 106 rather than the former standard exemption. In addition, § 116.620(a)(13) now includes reference to case-by-case MACT review under Subchapter C.
The commission also amended § 116.621(2)(F), concerning municipal solid waste landfills, to refer to the correct exemptions under Chapter 106 rather than the former standard exemption. In addition, § 116.621(2)(F) includes reference to case-by-case MACT review under Subchapter C.
Consistent with the deletion of § 116.110(b), the operations certification requirements contained in § 116.710(b) have also been deleted.
Section 116.710(c) is revised to be consistent with the changes proposed to § 116.116(e), concerning seals of Texas licensed professional engineers.
Section 116.711(3) is revised to require applicants to demonstrate that the proposed control technology meets the current BACT requirements for any constructed or reconstructed facility that is required to meet Subchapter C.
Section 116.711(11), concerning flexible permit applications, was amended by adding a requirement that facilities subject to review for constructed or reconstructed major sources of hazardous air pollutants under FCAA, § 112(g) and 40 CFR Part 63 must comply with Subchapter C.
Section 116.715(a), concerning general and special conditions, was amended to include the case-by-case MACT review under Subchapter C when considering whether a facility is eligible for a flexible permit under § 116.710. A reference to Subchapter C was added to ensure that a facility operating under the terms of a flexible permit is in compliance with the federal permitting requirements of Subchapter C. As noted in the preamble discussion concerning Subchapter C, as long as a facility applies BACT (or MACT if it is determined to be more restrictive that BACT) and conducts public notice, the facility would still be able to use flexible permits in conjunction with case-by-case MACT determinations. In addition, § 116.715 is amended to make the correct reference to Chapter 106. In order to properly refer to the Engineering Services Section, § 116.715(c)(4) was amended to delete a reference to the Source and Mobile Monitoring Section.
Section 116.740(b), concerning public notice and comment, is added to require public notice for flexible permit amendments that address a case-by-case MACT determination under Subchapter C. Flexible permit amendments that do not concern case-by-case MACT determinations are not required to complete the public notice process. This change was made to allow sources to continue to fully utilize flexible permits while meeting the conditions of Subchapter C.
Sections 116.721 and 116.750, concerning Amendments and Alterations and Flexible Permit Fee, were amended to correctly reference Chapter 106 rather than the former Chapter 116 for standard exemptions. Section 116.750(b) was amended to clarify that the minimum fee for a flexible permit amendment is $450. This is not a change to the existing fee structure; rather, it is to correct an oversight to include the $450 minimum fee. The $450 minimum fee has been applied, when applicable, to all applications for flexible permit amendments. This correction makes this section consistent with Subchapter B regarding fees for NSR permit amendments.
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