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Regulation VI, September 30, 1978

131.08.00

.001 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 from the Texas Air Control Board 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.

.002 The owner of the facility or the operator of the facility authorized to act for the owner is responsible for applying for and obtaining a permit to construct and operate.

.003 Consideration for Granting a Permit to Construct and Operate

(a) 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 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.

(2) The proposed facility will not prevent the maintenance or attainment of any applicable ambient air quality standard.

(3) The proposed facility will not cause significant deterioration of existing ambient air quality in the area.

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

(5) The proposed facility will be located with proper consideration of land use.

(6) 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.

(7) 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.

(8) 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.

(9) 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.

(10) All requirements of Section 129(a)(1) of the Clean Air Act Amendments of 1977 (PL 95-95). This provision does not apply to new or modified facilities beginning construction after July 1, 1979.

(11) The proposed facility shall comply with the lowest achievable emission rate as defined in the General Rules.

(12) The owner or operator of the proposed new or modified facility has demonstrated that all major stationary facilities owned or operated by such person (or by any entity controlling, controlled by, or under common control with such person) in the state are in compliance with or on a schedule for compliance with all applicable state and federal emission limitations and standards.

(13) Rules 131.08.00.003(a)(11) and 131.08.00.003(a)(12) shall apply in all nonattainment areas and to any new or modified facility beginning construction after July 1, 1979. The following counties have been designated as nonattainment areas: Bexar, Brazoria, Dallas, Ector, El Paso, Galveston, Gregg, Harris, Jefferson, McLennan, Nueces, Orange, Tarrant, Travis and Victoria.

(b) 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 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 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.

(5) All requirements of Section 129(a)(1) of the Clean Air Act Amendments of 1977 (PL 95-95) have been met. This provision does not apply to new or modified facilities which began construction after July 1, 1979.

(6) The proposed facility shall comply with the lowest achievable emission rate as defined in the General Rules.

(7) The owner or operator of the proposed new or modified facility has demonstrated that all major stationary facilities owned or operated by such person (or by any entity controlling, controlled by, or under common control with such person) in the state are in compliance with or on a schedule for compliance with all applicable state and federal emission limitations and standards.

(8) Rules 131.08.00.003(b)(6) and 131.08.00.003(b)(7) shall apply to all nonattainment areas and to any new or modified facility which began construction after July 1, 1979. The following counties have been designated as nonattainment areas: Bexar, Brazoria, Dallas, Ector, El Paso, Galveston, Gregg, Harris, Jefferson, McLennan, Nueces, Orange, Tarrant, Travis and Victoria.

.004 No person shall construct a proposed new or modified facility unless it can be demonstrated that by the time the source is to commence operation, total allowable emissions from existing sources in the urban nonattainment area in which the facility is located, from new or modified sources which are not major emitting facilities, and from the proposed facility will be sufficiently less than the total emissions from existing sources allowed under the SIP prior to the application for a permit to construct or modify so as to demonstrate reasonable further progress. This provision only applies in the following counties: Bexar, Dallas, El Paso, Harris, Nueces, Tarrant and Travis.

.005 Permits to construct and operate may contain general and special conditions. The holders of construction and operating permits shall comply with any and all such conditions.

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

.007 Pursuant to Section 3.27(a) of the Texas Clean Air Act, a permit to construct and a permit to operate shall not be r 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.

.008 For sources not currently on the exemption list specified in Rule 131.08.00.006, 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.

.009 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.

.010 The rules contained in this regulation shall be in force immediately and shall supersede the previous Regulation VI which became effective on August 31, 1972.

.011 Public Notification and Comment Procedures

(a) Public Notification Procedures

(1) General Requirement. Within ten days 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, requiring the applicant to provide public notification of the proposed construction, specifying those air contaminants listed in the application and specifying certain agencies to be notified. The applicant shall provide such notification using each of the methods specified below.

(2) Publication in Public Notices Section of Newspaper. Notice of intent to construct shall be published in the public notice section of two successive issues of the newspaper of general circulation in the county where the proposed facility is to be located. The notice shall contain the information and be of the form specified in Appendix I to this Rule.

(3) 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 have the same content as the notice required by Section (a)(2) of this Rule.

(4) Notification of Texas Air Control Board and Others. When newspaper notices are published in accordance with Sections (a)(2) and (a)(3) of this Rule, 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 whose air quality may be adversely affected by the emissions from the new or modified facility. The Texas Air Control Board will notify the applicant of the specific agencies to be furnished a copy of the newspaper notice.

(5) 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 may exempt the relocation of such facilities from the requirements of this rule if he finds: 1) No indication that operation of the facility at the proposed new location will significantly affect ambient air quality; and 2) 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 Rule if he finds: 1) There will be no change in the type of pollutants emitted; and 2) 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 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 Sections (a)(2) and (a)(3) of this Rule.

Appendix I
Newspaper Notices

To All Interested Persons and Parties

You are hereby notified of the opportunity for written public comment concerning the construction permit application no. (application number) by (company name) to construct a (type of facility) in (local city, local county), Texas. The proposed location is (location). This facility proposes to emit the following air contaminants (list of contaminants as specified in the permit application).

A copy of all materials submitted by the applicant is available for public inspection at the Texas Air Control Board Region (number) office at (address of Regional office), and at the Texas Air Control Board, 8520 Shoal Creek Boulevard, Austin, Texas 78758. All interested persons shall have until (date - 30 days from notice publication date) to inspect these materials, submit written comments to the Executive Director, and/or request notification of the proposed agency action. All comments received in writing by the above date shall be considered by the Board in making its decision on the application. All comments will be made available for public inspection at the Texas Air Control Board office in Austin.

(2) Consideration of Comments. All written comments received by the Executive Director during the period specified in (b)(1) shall be considered in formulating proposed agency action. A record of all comments received shall be maintained, together with the agency analysis of such comments.

(3) Availability of Data. The complete construction permit application shall be available at the appropriate Texas Air Control Board Regional Office and at the Texas Air Control Board office in Austin, Texas during normal business hours. All portions of the permit application will be available for public inspection except those sections relating to confidential information. A summary of the agency evaluation of the permit application shall also be available for public review at the appropriate Texas Air Control Board Regional Office and at the Austin office after the proposed agency action on the permit application has been decided. Written comments submitted to the Executive Director and the agency analysis thereof shall be available for review during normal business hours at the Texas Air Control Board Austin office.

(4) Notification of Proposed Actions. Interested persons may submit a request to be notified of the proposed agency action. Such requests must be in writing and must be received by the Executive Director with the comment period specified in Section (b)(1) of this Rule. Those persons requesting notification shall be notified in writing of the proposed agency action.

(5) Comments on Proposed Action. Comments on the proposed agency action on a construction permit application will be accepted by the Executive Director within the thirty (30) calendar day period following the mailing of the notice of the proposed action to those requesting such notice in accordance with Section (b)(4) of this Rule and shall be considered by him in making his final decision to issue or deny the permit to construct.

(6) Waiver of Comment Period. If no request to be notified of the proposed agency action is received in the period specified in (b)(4), the Executive Director may proceed without additional delay to issue or deny the permit based upon his evaluation of the application and of any written comments received during the comment period specified in Section (b)(1) of this Rule.

(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 Sections (b)(1) or (b)(5) of this Rule 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 Rule 131.08.00.003(a)(6) 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. Rule 131.08.00.010 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.


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