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You are here: Home / Permitting / Air Permits / PermitByRule / Historical Rules / old116 / 989 / Title 31 TAC 116, September 12, 1989

Title 31 TAC 116, September 12, 1989

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

116 Rule

116.1 Permit Requirements
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 exempted Facilities
116.7 Reserved
116.8 Local Air Pollution Control Agencies
116.9 Effective Date
116.10 Public Notification and Comment Procedure
116.11 Permit Fees
116.12 Review and Continuance of Operating Permits
116.13 Emergency Orders for Damaged Facilities

§ 116.1 Permit Requirements

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

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

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

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

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

§ 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 complying with § 116.1 of this title (relating to Permit Requirements).

§ 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. In considering the issuance of a permit for construction or modification of any facility within 3000 feet or less of an elementary, junior high or senior high school, the TACB 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.

(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.

(13) The proposed facility shall comply with the Prevention of Significant Deterioration of Air Quality regulations promulgated by the Environmental Protection Agency in the Code of Federal Regulations at 40 CFR 52.21 as amended August 1, 1987 and the Definitions for Protection of Visibility promulgated at 40 CFR 51.301, hereby incorporated by reference, except for the following paragraphs: 40 CFR 52.21(j) concerning control technology review; 40 CFR 52.21(l) concerning air quality models; 40 CFR 52.21(q) concerning public notification (provided, however, that a determination to issue or not issue a permit shall be made within one year after receipt of a complete permit application so long as a contested case hearing has not been called on the application); 40 CFR 52.21(r)(2), concerning source obligation; 40 CFR 52.21(s), concerning environmental impact statements; 40 CFR 52.21(u), concerning delegation of authority; and 40 CFR 52.21(w), concerning permit rescission. The term "Executive Director" shall replace the word "Administrator" except in 40 CFR 52.21(b)(17), (f)(1)(v), (f)(3), (f)(4)(i), (g) and (t). "Administrator or Executive Director" shall replace "Administrator" in 40 CFR 52.21(b)(3)(iii) and "Administrator and Executive Director" shall replace "Administrator" in 40 CFR 52.21(p)(2). All estimates of ambient concentrations required under this paragraph shall be based on the applicable air quality models and modeling procedures specified in the EPA Guideline on Air Quality Models, as amended, or models and modeling procedures currently approved by EPA for use in the state program and other specific provisions made in the state PSD State Implementation Plan. If the air quality impact model approved by EPA or specified in the guideline is inappropriate, the model may be modified or another model substituted on (1) a case by case basis or (2) a generic basis for the state program, where appropriate. Such a change shall be subject to notice and opportunity for public hearing and written approval of the Administrator of the EPA. Copies of 40 CFR 52.21 and 40 CFR 51.301 are available upon request from the Texas Air Control Board, 6330 Highway 290 East, Austin, Texas 78723

(14) In evaluating air quality impacts under paragraphs (11) or (13) of this subsection, the owner or operator of a proposed new facility or modification of an existing facility shall not take credit for reductions in impact due to dispersion techniques as defined in the Code of Federal Regulations. The relevant federal regulations are incorporated herein by reference, as follows: 40 CFR 51.100(hh)-(kk) promulgated November 7, 1986; the definitions of "owner or operator," "emission limitation and emission standards," "stack," "a stack in existence," and "reconstruction," as given under Sections 40 CFR 51.100(f), (z), (ff), (gg) and 40 CFR 60, respectively; 40 CFR 51.118(a), (b) and (c); and 40 CFR 51.164. Copies of these sections of the Code of Federal Regulations are available upon request from the Texas Air Control Board, 6330 Highway 290 East, Austin, Texas 78723.

(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) 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 § 116.5 of this chapter, concerning Representations in Application for Permit and exemption, or § 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 § 116.11 of this chapter, concerning Permit Fees.

§ 116.4 Special Conditions

Permits to construct and operate, special permits and exemptions may contain general and special conditions. The holders of exemptions, construction and operating permits and special 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 and Exemption

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

§ 116.6 Exemptions

Pursuant to Section 3.27(a) of the Texas Clean Air Act, the facilities or types of facilities listed in the Standard exemption List, dated August 11, 1989, as filed in the Secretary of State's Office and herein adopted by reference, are exempt from the requirements of Sections 3.27 and 3.28 of the TCAA, because such facilities will not make a significant contribution of air contaminants to the atmosphere; provided, however, that:

(1) Actual emissions from the proposed facility shall not exceed 250 tons per year of carbon monoxide or nitrogen oxides or 25 tons per year of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen and oxygen. In addition, total actual emissions from the property where the proposed facility is to be located shall not exceed 250 tons per year of carbon monoxide or nitrogen oxides or 25 tons per year of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen and oxygen, unless at least one facility at such property has been subject to public notification and comment as required by § 116.10 of this title (relating to Public Notification and Comment Procedure);

(2) Construction or modification of the facility shall be commenced prior to the effective date of a revision of the Standard exemption List under which the construction or modification would no longer be exempt;

(3) The proposed facility shall comply with the applicable provisions of Section 111 or 112, or the new source review requirements of Part C or Part D, of the Federal Clean Air Act and regulations promulgated thereunder;

(4) Notwithstanding the provisions of this section, any facility which constitutes a major source or any modification which constitutes a major modification, under any new source review requirement of the Federal Clean Air Act and regulations promulgated thereunder shall be subject to the requirements of § 116.3 of this title (relating to Consideration for Granting Permits to Construct and Operate) rather than this section.

(b) The emissions from the facility shall comply with all rules and regulations of the Texas Air Control Board and with the intent of the TCAA, including protection of health and property of the public and all emissions control equipment shall be maintained in good condition and operated properly during operation of the facility.

(c) Copies of the current Standard exemption List are available from the TACB office at 6330 U.S. Highway 290 East, Austin, Texas, 78723, and at all TACB regional offices.

§ 116.7 Reserved

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

(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 (for permits subject to the Federal Clean Air Act, Part C or D or to 40 CFR 51.165(b))
(G) Location and availability of copies of the completed permit application and the TACB's preliminary analyses thereof
(H) Public comment period
(I) Procedure for submission of public comments concerning the proposed construction
(J) Notification that a person who may be affected by emission of air contaminants from the facility is entitled to request a hearing in accordance with TACB rules and
(K) Name, address and phone number of the regional TACB office to be contacted for further information

(4) Publication Elsewhere in the Newspaper.

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

(5) Posting of notice at the proposed site

(A) At the applicant's expense, a sign or signs shall be placed at the site of the proposed facility declaring the filing of an application for a permit and stating the manner in which the TACB maybe contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements:

(i) signs shall consist of dark lettering on a white background and shall be no smaller than 18 inches by 28 inches;

(ii) signs shall be headed by the words "PROPOSED AIR QUALITY PERMIT" in no less than two-inch boldface block printed capital lettering;

(iii) signs shall include the words "APPLICATION NO." and the number of the permit application in no less than one-inch boldface block printed capital lettering (more than one number maybe included on the signs if the respective public comment periods coincide).

(iv) signs shall include the words "for further information contact" in no less than 1/2 inch lettering;

(v) signs shall include the words "Texas Air Control Board," and the address of the appropriate TACB regional office in no less than one-inch boldface capital lettering and 3/4-inch bold face lower case lettering; and

(vi) signs shall include the phone number of the appropriate TACB regional office in no less than two-inch boldface numbers.

(B) The sign or signs must be in place by the date of publication of the newspaper notice required by paragraph (3) of this subsection and must remain in place and legible throughout the period of public comment provided for in subsection (b) of this section.

(C) Each sign placed at the site must be located within 10 feet of each (every) property line paralleling a street or other public thoroughfare. Signs must be visible from the street and spaced at not more than 1500 foot intervals. A minimum of one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare.

(D) These sign requirements do not apply to properties under the same ownership which are noncontiguous and/or separated by intervening public thoroughfares, unless directly involved by the permit application.

(6) Notification of TACB 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. Along with such notices furnished to the TACB, the permit applicant shall certify that the signs required by paragraph (5) of this subsection have been posted in accordance with the provision of that paragraph.

(7) exemption of Previously Permitted Facilities.

Upon written request by the owner or operator of a facility which previously has received a permit or special 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 no indication that operation of the facility at the proposed new location will significantly affect ambient air quality and no indication that operation of the facility at the proposed new location will create a nuisance.

(b) Comment Procedures.

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

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

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

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

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

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

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

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

116.11 Permit Fees

(a) Applicability

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

(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 or if the project consists of new facilities controlled and operated directly by the federal government for which an application is submitted after January 1, 1987, the fee is $300. The provisions of paragraphs (3) and (4) of this subsection do not apply to a project consisting of new facilities controlled and operated directly by the federal government.

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

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

(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 $50,000 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, special permit or permit amendment 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 revisions, standard 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 or permit amendment is submitted. If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, one half of the fee will be refunded except that the entire fee will be refunded for any such application for which a standard exemption is allowed. No fees will be refunded after an inadequate application has been voided or after a permit or amendment has been issued by the agency.

116.12 Review and Continuance of Operating Permits

(a) Application for Review and Continuance of Operating Permit

The Texas Air Control Board (TACB) shall provide written notice to the holder of a permit that the permit is scheduled for review. Such notice will be provided by certified or registered U.S. mail no less than 180 days prior to the expiration of the 15th year following issuance or continuation of the operating permit. The notice shall specify the procedure for filing an application for review and the information to be included in the application. The application shall be completed by the holder of the permit and returned to the TACB within 90 days of receipt of the notice.

(b) Permit Continuance Requirements

(1) In order to be granted a permit continuance, the owner or operator of the facility shall submit information in support of the application which demonstrates that:

(A) The emissions from the facility comply with all applicable specifications and requirements in the TACB rules and the TCAA.

(B) The facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments and any previously granted continuance.

(C) The facility has appropriate means to measure the emission of significant air contaminants as determined to be necessary by the Executive Director.

(D) The facility uses that control technology determined by the Executive Director to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area.

(E) The emissions from the facility meet at least the requirements of any applicable new source performance standards promulgated by the Environmental Protection Agency (EPA) pursuant to authority granted under the Federal Clean Air Act (FCAA), § 111, as amended.

(F) The emissions from the facility meet at least the requirements of any applicable emission standard for hazardous air pollutants promulgated by the EPA pursuant to authority granted under the Federal Clean Air Act (FCAA), § 112, as amended

(2) The TACB shall review the compliance history of the facility in consideration of granting a permit continuance. Upon request of the Executive Director, the application shall include additional information which demonstrates the extent to which specified notices of violation (NOVs) relate to the facility. In order for the permit to be continued, the application shall include information demonstrating that, notwithstanding such NOVs, the facility is or has been in substantial compliance with the provisions of the Texas Clean Air Act and the terms of the existing permit. If the facility has a history which demonstrates failure to maintain substantial compliance with the provisions of the TCAA or the terms of the existing permit, the continuance shall not be granted. If the facility has any unresolved nonclerical violations of the TACB rules, the continuance shall not be granted unless the facility is brought into compliance or is complying with the terms of an applicable board order or court order prior to the end of the 15 year term of the permit.

(c) Public Notification and Comment Procedures

The Executive Director shall mail a written notification to the permit holder within 30 days of receipt of a completed application for permit review and continuance, as determined by the Executive Director of the TACB. The notification will acknowledge receipt of the application and require the applicant to provide public notice of the application for permit continuance according to § 116.10(a)(3), (4) and (5) of this chapter, concerning Public Notification and Comment Procedure. All requirements pertaining to signs and public notification in § 116.10(a)(3), (4) and (5) and to public comments in § 116.10(b) which apply to proposed construction, proposed facilities and permit applications shall apply likewise to proposed continuances, existing facilities and continuance applications. The sign heading required under § 116.10(a)(5)(A)(ii) shall read "PROPOSED CONTINUANCE OF AIR QUALITY PERMIT." When newspaper notices are published in accordance § 116.10(a)(3) and (4), the applicant for permit continuance shall furnish a copy of such notices and dates of publication to the TACB in Austin and all local air pollution control agencies with jurisdiction in the county in which the facility is located. Along with such notices furnished to the TACB, the applicant shall certify that the signs required by § 116.10(a)(5) have been posted in accordance with the provisions of that paragraph.

(d) Continuance of Permit

Subsequent to review, the Executive Director shall continue a permit if he determines that the facility meets the requirements of subsections (b) and (c) of this section. The Executive Director shall notify the permit holder in writing of the decision regarding continuance. If the permit can not be continued, the Executive Director shall forward with the notice a report which describes the basis for the determination. If denial is based on failure to meet the requirements of subsection (b)(1) of this section, the Executive Director's report shall establish a schedule for compliance with the continuance requirements. The report shall be forwarded to the permit holder no later than 180 days after the TACB receives a completed application. The permit shall be continued if the requirements are met according to the schedule specified in the report and the Executive Director shall notify the permit holder in writing of the permit continuance. However, if denial is based on failure to maintain substantial compliance with the provisions of the TCAA or the terms of the existing permit pursuant to subsection (b)(2) of this section, the continuance denial shall be final and the Executive Director shall notify the permit holder in writing of the denial.

(e) Contested Case Hearing

In the event that the permit holder fails to satisfy the TACB requirements for corrective action by the deadline specified in the TACB requirements for corrective action by the deadline specified in the TACB report, the applicant shall be required to show cause in a contested case proceeding why the permit should not expire. The proceeding will be conducted pursuant to the requirements of the Administrative Procedure and Texas Register Act, Article 6252-13a, V.T.C.S.

(f) Effective Date of Existing Permit

An existing operating permit shall remain effective until it is continued or until the deadline specified in the Executive Director's report to the permit holder or until a date specified in any board order entered following a contested case hearing held pursuant to subsection (e) of this section. An existing permit shall remain effective during the course of a contested case hearing if the hearing proceeds beyond the end of the fifteenth year of the permit.

(g) Fee for Review of Operating Permit

The holder of an operating permit to be reviewed for continuance by the TACB shall remit a fee with each continuance application, pursuant to the TCAA, § 3.29(a), based on the total annual allowable emissions from the permitted facility for which the continuance is being sought, as applied to the following table:

X = Total Allowable (Tons/Year) Base Fee Incremental Fee
X < 5 $300 --
6 < X < 24 $300 $35/ton
25 < X < 99 $965 $25/ton
100 < X < 999 $2,840 $8/ton
X > 999 $10,000 --
Minimum fee: $300
Maximum fee: $10,000

* To calculate the fee, multiply the number of tons in excess of the initial tonnage in that category by the incremental fee, then add this figure to the base fee. For example, if total emissions of all air contaminants are 50 tons per year, the total fee would be $1,590 (base fee of $965, plus incremental fee of $25 x 25 tons or $625).

This fee shall be due and payable at the time application for review and continuance is filed with the TACB in response to written notice from the TACB consistent with 116.12(a). No fee will be accepted before the permit holder has been notified by the TACB that the permit is scheduled for review. The basis of the fee is that fee schedule which is in effect at the time the application is filed. All permit review fees shall be remitted in the form of a check or money order made payable to the Texas Air Control Board, 6330 U.S. Highway 290 East, Austin, Texas 78723. Required fees must be received before the agency will consider an application to be complete.

(h) Failure to Apply for Review and Continuance

An operating permit shall expire at the end of 15 years following the date of original issue or subsequent continuance if the permit holder fails to submit a completed application for review and continuance within 90 days after receiving notification from the TACB pursuant to subsection (a) of this section unless extended for good cause by the Executive Director of the TACB.

116.13 Emergency Orders for Damaged Facilities

(a) Application for Emergency Order

The owner or operator of a facility may apply to the Executive Director of the Texas Air Control Board (TACB) for an emergency order to authorize immediate action for the addition, replacement or repair of facilities or control equipment and authorizing associated emissions of air contaminants, whenever a catastrophic event necessitates such construction and emissions otherwise precluded under the Texas Clean Air Act (TCAA). For purposes of this section, a catastrophic event is an unforeseen event including, but not limited to, an act of God, an act of war, severe weather conditions, explosions, fire or other similar occurrences beyond the reasonable control of the operator, which renders a facility or its functionally related appurtenances inoperable. The owner or operator of a facility who applies for an emergency order shall submit a sworn application which contains all of the following:

(1) A statement that the proposed construction and emissions are essential to prevent loss of life, serious injury, severe property damage or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement or repair of facilities or control equipment necessitated by a catastrophic event;

(2) A description of the catastrophic event;

(3) A statement that there are no practicable alternatives to the proposed construction and emissions;

(4) A statement that the emissions will not cause or contribute to a condition of air pollution;

(5) A statement that the proposed construction and emissions will occur only at the property where the catastrophic event occurred or on other property owned by the owner or operator of the damaged facility, which produces the same intermediates, products or by-products, providing no more than a de minimus increase will occur in the predicted concentration of the air contaminants at or beyond the property line at such property;

(6) A description of the proposed construction and the type and quantity of air contaminants to be emitted;

(7) An estimate of the dates on which the proposed construction and emissions will begin and end;

(8) An estimate of the date on which the facility will begin operation; and

(9) Any other information or item the Executive Director may require to support or explain the need for, or to expedite the issuance of, an emergency order; including information regarding the applicability of and compliance with any federal requirements for new or modified sources.

(b) Contents of Emergency Order

An emergency order issued by the Executive Director shall contain at least the following:

(1) A description of the emergency construction and emissions to be authorized;

(2) Reasonable time limits for the beginning and the completion of the proposed construction and emissions;

(3) Authorization for action only at the property where the catastrophic event occurred or on other property owned by the owner or operator of the damaged facility, which also produces the same intermediates, products or by-products, provided there will be no more than a de minimus increase in the concentration of air contaminants at or beyond the property line at such other property; and

(4) A schedule for submission of a complete construction permit application under provisions of the TCAA, § 3.27.

(c) Public Hearing for Emergency Order

A public hearing on the merits and needs of an emergency order shall be held either prior to or following issuance of the order. If the hearing is held prior to issuance of a proposed emergency order, the Board shall affirm the order as proposed, issue a modified order, or deny and set aside the order. If the hearing is held following issuance of an emergency order, the Board shall affirm, modify or set aside the order as issued. Any hearing on an emergency order shall be conducted by the Board or a hearings examiner of the Board in accordance with provisions of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, and the TACB Procedural Rules, § § 103.41-103.65.

(d) Affirmation of Emergency Order

The Board shall affirm a proposed or issued order if the applicant shows at the hearing, by a preponderance of the evidence, that:

(1) the proposed construction and emissions are essential to prevent loss of life, serious injury, severe property damage or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement or repair of facilities or control equipment that is necessitated by a catastrophic event;

(2) There are no practicable alternatives to the proposed construction and emissions;

(3) The emissions will not cause or contribute to a condition or air pollution;

(4) The proposed construction or emissions will occur only:

(A) At property where the catastrophic event occurred, or

(B) At other property owned by the owner or operator of the damaged facility which produces the same intermediates, products or by-products so long as there will be no more than a de minimus increase in the predicted concentration of the air contaminants at or beyond the property line at such property;

(5) The time limits in the order for the beginning and completion of the proposed construction and emissions are reasonable; and

(6) The schedule in the order for submission of a complete permit application is reasonable.

(e) Modification of an Emergency Order

The Board shall modify a proposed or issued order if the hearing record shows that:

(1) Construction and emissions otherwise precluded under the TCAA are essential to prevent loss of life, serious injury, severe property damage or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement or repair of facilities or control equipment that is necessitated by a catastrophic event;

(2) There is no practicable alternative to such construction emissions; and

(3) Modification of certain terms of the proposed or issued order is necessary to make the order, construction, and/or emissions meet the requirements stated in Subsection (d) of this section.

(f) Setting Aside an Emergency Order

The Board shall set aside a proposed or issued order if the hearing record does not show, in accordance with Subsections (d) or (e) of this section, that the order should be either affirmed or modified and adopted as modified.

(g) Application for Permit or Modification

The owner or operator of a facility for which an emergency order has been issued shall submit an application within 60 days of issuance of the order pursuant to the TCAA, § 3.272(a)(3) and (b), and in accordance with provisions of the TCAA, § 3.27, and with § § 116.1-116.10 of this chapter. The application shall be reviewed and acted upon by the Executive Director without regard to construction activity authorized by the emergency order. The appropriate permit fees shall be due and payable pursuant to § 116.11 of this chapter. Costs and expenses related to additions, replacement or repair of facilities or control equipment shall not be a consideration in any determination in the review of this application.

(h) Public Notification

The TACB shall publish notice of the issuance of an emergency order in the Texas Register as soon as practicable after issuance of the order. If the order is issued prior to a hearing, the order shall fix a time and location for hearing which is to be held as soon as practicable after the order is issued. The TACB shall publish notice of any hearing in the Texas Register not later than the tenth day prior to the date set for the hearing, plus give any other general notice determined by the Executive Director to be warranted and practicable under the circumstances. Notice of the issuance and notice of the hearing maybe consolidated for publication in the Texas Register.


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