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Overview of Federal Operating Permits

Provides an overview of the Federal Operating Permit process.

Legal Basis

A Federal Operating Permit (FOP) is a legally enforceable document that the Texas Commission on Environmental Quality (TCEQ) issues to certain air pollution sources. The 1990 Federal Clean Air Act Amendments (FCAAA) includes requirements for states to implement a FOP program. The U.S. Environmental Protection Agency (EPA) promulgated these requirements in Title 40 Code of Federal Regulations Part 70. Exit the TCEQ The TCEQ met these Federal requirements and provided a road map in Title 30 Texas Administrative Code (30 TAC) Chapter 122 Exit the TCEQ to implement the FOP program in Texas. The EPA has delegated the implementation of the FOP program to the TCEQ and continues to maintain oversight of the program.

Purpose of Federal Operating Permits

The purpose of a FOP is to reduce violations of air pollution laws and improve enforcement of those laws. A FOP meets this objective by:

  • recording all air pollution control requirements that apply to the source. This gives regulators, site operators or owners, and members of the public, a clear picture of what the facility is required to do to meet regulatory standards.
  • requiring the source to make regular reports on how it is meeting its emission control requirements. These reports are public information, and members of the public can get them from the TCEQ.
  • adding monitoring, testing, or record keeping requirements, where needed, to assure that the source complies with its emission limits or other pollution control requirements.
  • requiring the source to certify each year whether or not it has met the air pollution requirements outlined in the FOP. These certifications are public information.
  • making the terms of the FOP permit federally enforceable. This means that EPA and/or the TCEQ can enforce the terms and conditions of the FOP.

A site is required to obtain an operating permit if it is considered to be a major source (per 30 TAC Section 122.10). Exit the TCEQ A site's potential to emit is an important factor to determine if the site is a major source and is thus required to apply and obtain an FOP. The determination of the site's extent and boundaries and consideration of emission sources within such boundaries for purposes of calculating its potential to emit is also important to establish if the site is required to apply for an FOP.

FOP Applicability

A site may also need an operating permit if it has an Acid Rain affected source (defined in 40 CFR Part 72), Exit the TCEQ a solid waste incinerator (required by Title I of the 1990 FCAAA Chapter 129[e]), or if it is one of the non-major sources specifically identified by the EPA to apply and obtain an FOP.

The TCEQ Air Permits Division (APD), Air Permits and Registrations web page, provides detailed information on applicability of 30 TAC Chapter 122 Exit the TCEQ and the requirements to apply for an FOP including various resources and guidance documents to assist in complying with the FOP program.

Difference between a preconstruction permit authorization and FOP

The State of Texas has two air permit programs - Preconstruction permit authorization (commonly known as a New Source Review [NSR] permit program) and the FOP program. Each permit program serves a different purpose. Any person who plans to construct any new facility or engage in the modification of any existing facility which emits air contaminants into the atmosphere is required to obtain a permit prior to construction pursuant to 30 TAC Section 116.111 Exit the TCEQ or satisfy the conditions for a standard permit, flexible permit, or the conditions for Permits by Rule (PBR). Further information pertaining to the different preconstruction authorizations is available in the Fact Sheet - Air Quality Permitting.

Preconstruction Permit Federal Operating Permit (FOP)
Apply prior to construction. Post-construction - Facilitates compliance with applicable requirements by listing them comprehensively in a permit which is issued after the facility is constructed and begins operation.
Portion of site or for individual facilities (emission sources) within site. FOP covers the entire site. A site may have multiple permits.
Applies to emissions of all air contaminants. Applies to all major sites and certain non-major sites identified by EPA.
Authorizes emissions Codifies applicable requirements.
Best Available Control Technology (BACT) & health impacts review Review of all applicable regulations for emission sources at site including the identification of additional monitoring to assure compliance with applicable requirements.

Public Notice w/opportunity for contested case hearings.

EPA review for federal NSR permits.

Public Notice w/opportunity for notice and comment hearing.

Also includes EPA Review, Affected State Review, Public Petition Period.

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