### Bryan W. Shaw, Ph.D., 

### Chainnan

Toby Baker, 

### Commissianer

Zak Covar, 

### Executive Director 

# RECEIVED- 6PDL

AIR PLAHNlrlG SEC.



# 13 DEC I 0 PH 5: 

# 01

TEXAS COMMISSION ON ENVIRONMENTAL QUALI1Y

Protecting Texas by Reducing and Preventing Pollution



## December 6, 2013



## Ron Curry

Regional Administrator

U.S. Environmental Protection Agency- Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Mr. Curry: Docket No. 2013-0413-RUL

Rule Project No. 2013-012-115-AI



## On October 23, 2013, the Texas Commission on Environmental Quality (Commission)

adopted revisions to the State Implementation Plan (SIP).

The Commission adopted an amendment to §115-453 in 30 TAC Chapter 115, Control of Air

Pollution from Volatile Organic Compounds, Solvent-Using Processes; and corresponding

revisions to the SIP. The adopted rulemaking revises the list of approved surface coating

application systems in §115-453(c) to include airless spray and air-assisted airless spray coating application systems. The adopted rulemaking is consistent with the EPA's 2008

Miscellaneous Metal and Plastic Parts Coatings CTG recommendations and implements

reasonably available control technology for this specific surface coating category.

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete

record of the public hearings, and the accompanying order. I look forward to your expeditious approval of these SIP revisions.

Sincerely,

# ~~~p~ Chairman

BWS/alb

Enclosures

cc: The Honorable Rick Perry, Governor of Texas

Mr. Nathaniel R. Hickman, Office of Budget, Planning and Policy, Office of the

Governor

Mr. Zak Covar, Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov

How is our customer service? tceq.texas.gov/customersurvey

## THE STATE OF TEXAS

COUNTY OF TRAVIS Docket No. 2013-0413-RUL

Rule Project No. 2013-012-115-AI



## This is to certify that the attached electronic file is included and that the electronic file is a

true and correct copy of documents for a revision to the Texas State Implementation Plan,

adopted on October 23, 2013, pursuant to 40 Code of Federal Regulations§ 51.104. I am the

records administrator for the Air Quality Division of the Texas Commission on

Environmental Quality (Commission).

# WD~)J~ Director, Air Quality Division

Texas Commission on Environmental Quality

### Texas Commission on Environmental Quality

Public Hearings

June 25 and 27, 2013 and July 2, 2013

30 T AC Chapter 115

Subchapter E, Division 5

Surface Coating Application Systems Revision

Rule Project No. 2013-012-115-AI

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) scheduled public hearings in

Austin on June 25, 2013; in Fort Worth on June 27, 2013; and in Houston on July 2, 2013, to

receive testimony regarding proposed revisions to 30 Texas Administrative Code Chapter 115,

Control of Air Pollution from Volatile Organic Compounds, §115.453, and corresponding

revisions to the state implementation plan.

The rulemaking allows for the use of airless and air-assisted airless spray application systems

for the coating of miscellaneous metal parts and products, miscellaneous plastic parts and

products, automotive/transportation and business machine plastic parts, and motor vehicle

materials in the Dallas-Fort Worth and Houston-Galveston-Brazoria 1997 eight-hour ozone

nonattainment areas. The rulemaking implements reasonably available control technology

requirements consistent with the United States Environmental Protection Agency's 2008

Miscellaneous Metal and Plastic Parts Coatings Control Techniques Guidelines

recommendations.

The comment period closed on July 8, 2013. All testimony and comments have been reviewed

and seriously considered. This hearing record contains a complete record of the public hearings

and is divided into the following four sections:

o Public Notification and Proposal

o 

### Written and Oral Testimony

o 

### Evaluation of Testimony

o Staff Recommendations/Order

### Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park

35 Circle, Austin, Texas 78753. For further information, please contact Frances Dowiak at (512)

239-3931.

# NOTICE 

# & PROPOSAL

### PUBLIC NOTIFICATION

Notification to the public of the proposed revisions was conducted by the following procedures:

1. Publication of notice of public hearings in the following newspapers on the date listed:

Austin American-Statesman: 

### May 27, 2013

Fort Worth Star- Telegram: 

### May 27, 2013

Houston Chronicle: 

### May 27, 2013

2. Publication of the proposed rules in the June 7, 2013, issue of the Texas Register 

### (38 TexReg

3499).

3. Publication of the Notice of Public Hearings in the June 7, 2013, issue of the Texas Register 

### (38

TexReg 3689).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies:

Speaker of the House

Lieutenant Governor

Alamo Area Council of Governments

Capital Area Planning Council

City of Austin, Mayor's Office

City of Dallas, Department of Environmental Quality

City of Dallas, Department of Aviation

City of El Paso, Environmental Services

City of Fort Worth, Environmental Management Department

City of Fort Worth, Mayor's Office

City of Houston, Department of Health and Human Services

### City of Houston, Mayor's Office

East Texas Council of Governments

El Paso Metropolitan Planning Organization

Federal Highway Administration

Galveston County Health District

Harris County Judge

Harris County Public Health and Environmental SeNices

Houston-Galveston Area Council

North Central Texas Council of Governments

South East Texas Regional Planning Commission

Tarrant County Judge

Texas Department of Transportation

Travis County Judge

Victoria Metropolitan Planning Organization

Arkansas Department of Pollution Control and Ecology

Louisiana Department of Environmental Quality

New Mexico Environmental Department

Oklahoma Department of Environmental Quality

United States Environmental Protection Agency

### Example of Newspaper Classified Ad

Austin American-Statesman, May 27, 2013

NOTICE OF PUBLIC HEARINGS ON PROPOSED REVISIONS TO 30 TAC CHAPTER 115 AND TO THE STATE

IMPLEiVIENTATION PLAN The Texas Commission on Environmental Quality (commission) will conduct public hearings

to receive testimony regarding proposed revisions to 30 Texas Administrative Code (f:\C) Chapter 115, Control of Air

Pollution from Volatile Organic Compounds, 115.453, and corresponding revisions to the state implementation plan (SIP)

under the requirements of Texas Health and Safety Code, 382.017; Texas Government Code, Chapter 2001,

Subchapter B; and 40 Code of Federal Regulations 51.102 of the United States Environmental F:rotection Agency (EPA)

concerning SIPs. The proposed rulemaking would allow the use of airless and air-assisted airless spray application

systems for the coating of miscellaneous metal parts and products, miscellaneous plastic parts and products,

automotive/transportation and business machine plastic parts, and motor vehicle materials in the Dallas-Fort Worth and

Houston-Galveston-Brazoria 1997 eight-hour ozone non attainment areas. The proposed rulemaking implements·

reasonably available control technology requirements consistent with the EPA's 2008 Miscellaneous Metal and Plastic

Parts Coatings Control Techniques Guidelines recommendations. The commission wiJI hold public hearings on this

proposal in Austin on June 25,2013 at 10:00 a.m. at the Texas Commission on Environmental Quality, Building 

### E, Room

2018, 12100 Park 35 Circle Drive; in Fort Worth on June 27, 2013 at 6:00p.m. at the Texas Commission on

Environmental Quality Region 4 Office, DFW Public Meeting Room, 2309 Gravel Road; and in Houston on July 2, 2013

at 6:00 p.m. at the Houston-Galveston Area Council, Conference Room A, 3555 Timmons Lane. The hearings are

structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements

when called upon in order of registration. Open discussion 

### will not be permitted during the hearing; however, commission

staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special

communication or other accommodation needs who are planning to attend the hearings should contact Sandy Wong,

Office of Legal Services at (512) 239-1802. Requests should be made as ·far in advance as possible. Written comments

may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality,

P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808". Electronic comments may be submitted at:

hUp:/lwvrw5.tceq.texas.gov/ruleslecomments/. File size restrictions may apply to comments being submitted via 

### the

eComments system. All comments should reference Rule Project Number 2013-012-115-AI. The comment period closes

July 8, 2013. Copies of the proposed rulernaking can be obtained from the commission's Web site at

http://www.tceq.texas.gov/nav/ruleslpropose_adopt.html. For further information, please contact Frances Dowiak, Air

Quality Planning Section at 512-239-3931.

First Date Published: 27-May-13

## ♦ ♦ ♦ ♦ ♦ ♦ TAC §334.50(b)(1)(A), by failing to monitor the USTs at Shop N Save

for releases at a frequency of at least once every month (not to exceed

35 days between each monitoring); 30 TAC §334.10(b), by failing to

maintain UST records at Shop N Save and make them immediately

available for inspection upon request by agency personnel; TWC,

§26.3475(c)(1) and 30 TAC §334.50(b)(1)(A), by failing to monitor

the USTs at Super Food Mart 35 for releases at a frequency of at least

once every month (not to exceed 35 days between each monitoring);

30 TAC §334.10(b), by failing to maintain UST records at Super

Food Mart 35 and make them immediately available for inspection

upon request by agency personnel; PENALTY: $13,750; STAFF

ATTORNEY: Mike Fishburn, Litigation Division, MC 175, (512)

239-0635; REGIONAL OFFICE: Tyler Regional Office, 2916 Teague

Drive, Tyler, Texas 75701-3734, (903) 535-5100.

(5) COMPANY: Moutawakil Investments, L.L.C. d/b/a Gateway Plaza

4; DOCKET NUMBER: 2012-2324-PST-E; TCEQ ID NUMBER:

RN102346962; LOCATION: 900 West Bow Street, Tyler, Smith

County; TYPE OF FACILITY: UST system and convenience store

with retail sales of gasoline; RULES VIOLATED: TWC, §26.3475(a)

and (c)(1) and 30 TAC §334.50(b)(1)(A) and (2), by failing to monitor

the USTs for releases at a frequency of at least once every month (not

to exceed 35 days between each monitoring) and by failing to provide

release detection for the piping associated with the UST system;

PENALTY: $3,880; STAFF ATTORNEY: Ryan Rutledge, Litigation

Division, MC 175, (512) 239-0630; REGIONAL OFFICE: Tyler

Regional Office, 2916 Teague Drive, Tyler, Texas 75701-3734, (903)

535-5100.

TRD-201302168

Kathleen C. Decker

Director, Litigation Division

Texas Commission on Environmental Quality

Filed: May 28, 2013



### Notice of Public Hearings on Proposed Revisions to 30 TAC

Chapter 115 and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct public hearings to receive testimony regarding proposed revi

sions to 30 Texas Administrative Code (TAC) Chapter 115, Control of

Air Pollution from Volatile Organic Compounds, §115.453, and cor

responding revisions to the state implementation plan (SIP) under the

requirements of Texas Health and Safety Code, §382.017; Texas Gov

ernment Code, Chapter 2001, Subchapter B; and 40 Code of Federal

Regulations, §51.102 of the United States Environmental Protection

Agency (EPA) concerning SIPs.

The proposed rulemaking would allow the use of airless and air-as

sisted airless spray application systems for the coating of miscella

neous metal parts and products, miscellaneous plastic parts and prod

ucts, automotive/transportation and business machine plastic parts, and

motor vehicle materials in the Dallas-Fort Worth and Houston-Galve

ston-Brazoria 1997 eight-hour ozone nonattainment areas. The pro

posed rulemaking implements reasonably available control technology

requirements consistent with the EPA's 2008 Miscellaneous Metal and

Plastic Parts Coatings Control Techniques Guidelines recommenda

tions.

The commission will hold public hearings on this proposal in Austin

on June 25, 2013 at 10:00 a.m. at the Texas Commission on Environ

mental Quality, Building E, Room 201S, 12100 Park 35 Circle Drive;

in Fort Worth on June 27, 2013 at 6:00 p.m. at the Texas Commis

sion on Environmental Quality Region 4 Office, DFW Public Meeting

Room, 2309 Gravel Road; and in Houston on July 2, 2013 at 6:00 p.m. at the Houston-Galveston Area Council, Conference Room A, 3555

Timmons Lane. The hearings are structured for the receipt of oral or

written comments by interested persons. Individuals may present oral

statements when called upon in order of registration. Open discussion

will not be permitted during the hearing; however, commission staff

members will be available to discuss the proposal 30 minutes prior to

the hearing.

Persons who have special communication or other accommodation

needs who are planning to attend the hearings should contact Sandy

Wong, Office of Legal Services, at (512) 239-1802. Requests should

be made as far in advance as possible.

Written comments may be submitted to Michael Parrish, MC 205,

Office of Legal Services, Texas Commission on Environmental

Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed

to (512) 239-4808. Electronic comments may be submitted at:

http://www5.tceq.texas.gov/rules/ecomments /. File size restric

tions may apply to comments being submitted via the eComments

system. All comments should reference Rule Project Number

2013-012-115-AI. The comment period closes July 8, 2013. Copies

of the proposed rulemaking can be obtained from the commission's

Web site at http://www.tceq.texas.gov/nav/rules/propose_adopt.html

. For further information, please contact Frances Dowiak, Air Quality

Planning Section, at (512) 239-3931.

TRD-201302064

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: May 23, 2013



### Notice of Request for Public Comment and Notice of a Public

Meeting for Thirteen Total Maximum Daily Loads

The Texas Commission on Environmental Quality (TCEQ or commis

sion) has made available for public comment thirteen draft Total Max

imum Daily Loads (TMDLs) for indicator bacteria in the Lower West

Fork Trinity River Watershed (Segments 0841, 0841B, 0841C, 0841E,

0841G, 0841H, 0841J, 0841L, 0841M, 0841R, 0841T, and 0841U) of

the Trinity River Basin in Tarrant and Dallas Counties. The TCEQ will

conduct a public meeting to receive comments on the draft TMDLs.

This announcement also constitutes notice that the TMDLs will be

come part of the State Water Quality Management Plan upon approval

by the United States Environmental Protection Agency (EPA).

Texas is required to develop TMDLs for impaired water bodies in

cluded in the Texas Clean Water Act, §303(d) list of impaired water

bodies. A TMDL is a detailed water quality assessment that provides

the scientific foundation to allocate pollutant loads in a certain body of

water in order to restore and maintain designated uses.

The TCEQ will conduct a public meeting on the draft TMDLs for in

dicator bacteria in the Lower West Fork Trinity River (Segments 0841,

0841B, 0841C, 0841E, 0841G, 0841H, 0841J, 0841L, 0841M, 0841R,

0841T, and 0841U). The purpose of the public meeting is to provide

the public an opportunity to comment on the draft TMDLs. The com

mission requests comment on each of the six major components of the

TMDLs: problem definition, endpoint identification, source analysis,

linkage between sources and receiving waters, margin of safety, and

pollutant loading allocation. After the public comment period, TCEQ

staff may revise the TMDLs, if appropriate. The final TMDLs will

then be considered by the commission for adoption. Upon adoption of

the TMDLs by the commission, the final TMDLs and a response to all

comments will be made available on the TCEQ Web site referenced be

low. The TMDLs will then be submitted to EPA Region 6 for approval.



## IN ADDITION June 7, 2013 38 TexReg 3689

### Bryan W. Shaw, Ph.D., 

### Chairman

Carlos Rubinstein, 

### Commissioner

Toby Baker, 

### Commissioner

Zak Covar, 

### Executive Director



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas 

### by Reducing and Preventing Pollution



## NOTICE OF PUBLIC HEARINGS ON PROPOSED REVISIONS TO 30 TAC

CHAPTER 115 AND TO THE STATE IMPLEMENTATION PLAN

The Texas Commission on Environmental Quality (commission) will conduct public

hearings to receive testimony regarding proposed revisions to 30 Texas Administrative

Code (TAC) Chapter 115, Control of Air Pollution from Volatile Organic Compounds,

§115.453, and corresponding revisions to the state implementation plan (SIP) under the

requirements of Texas Health and Safety Code, §382.017; Texas Government Code,

Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 of the United

States Environmental Protection Agency (EPA) concerning SIPs.

The proposed rulemaking would allow the use of airless and air-assisted airless spray application systems for the coating of miscellaneous metal parts and products,

miscellaneous plastic parts and products, automotive/transportation and business

machine plastic parts, and motor vehicle materials in the Dallas-Fort Worth and

Houston-Galveston-Brazoria 1997 eight-hour ozone nonattainment areas. The proposed

rulemaking implements reasonably available control technology requirements

consistent with the EPA's 2008 Miscellaneous Metal and Plastic Parts Coatings Control

Techniques Guidelines recommendations.

The commission will hold public hearings on this proposal in Austin on June 25, 2013 at

10:00 a.m. at the Texas Commission on Environmental Quality, Building E, Room 201S,

12100 Park 35 Circle Drive; in Fort Worth on June 27, 2013 at 6:oop.m. at the Texas

Commission on Environmental Quality Region 4 Office, DFW Public Meeting Room,

2309 Gravel Road; and in Houston on July 2, 2013 at 6:oop.m. at the HoustonGalveston Area Council, Conference Room A, 3555 Timmons Lane. The hearings are

structured for the receipt of oral or written comments by interested persons.

Individuals may present oral statements when called upon in order of registration.

Open discussion will not be permitted during the hearing; however, commission staff

members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearings should contact Sandy Wong, Office of Legal Services at

(512) 239-1802. Requests should be made as far in advance as possible.

Written comments may be submitted to Michael Parrish, MC 205, Office of Legal

Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas

78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: 

## http:/ jwwws.tceq.texas.govjrulesjecommentsj. File size restrictions may apply to

comments being submitted via the 

## eComments system. All comments should reference

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov

How is our customer service? tceq.texas.govjgotojcustomersurvey

printed on recycled paper

## Rule Project Number 2013-012-115-AI. 

## The comment period closes July 8, 2013.



## Copies of the proposed rulemaking can be obtained from the commission's Web site at



## http:/ jwww. tceq .texas.gov jnav jrulesjpropose_ adopt.html. For further information,

please contact Frances Dowiak, Air Quality Planning Section at 512-239-3931.

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov

How is our customer service? tceq.texas.govjgotojcustomersurvey

printed on recycled paper

## ♦ ♦ ♦ 31 TAC §505.11(b)(2) or (4), nor will it affect any action/autho

rization identified in Coastal Coordination Act Implementation

Rules, 31 TAC §505.11(a)(6). Therefore, the proposed rule is

not subject to the Texas Coastal Management Program.

Written comments on the consistency of this rulemaking may be

submitted to the contact person at the address listed under the

Submittal of Comments section of this preamble.

Submittal of Comments

Written comments may be submitted to Bruce McAnally, MC

205, Office of Legal Services, Texas Commission on Environ

mental Quality, P.O. Box 13087, Austin, Texas 78711-3087

or faxed to (512) 239-4808. Electronic comments may be

submitted at: http://www5.tceq.texas.gov/rules/ecomments /.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should refer

ence Rule Project Number 2013-019-007-LS. The comment

period closes July 8, 2013. Copies of the proposed rulemaking can be obtained from the commission's Web site

at http://www.tceq.texas.gov/nav/rules/propose_adopt.html

. For further information, please contact Angela Burnett, (512)

239-6005.

Statutory Authority

This amendment is proposed under Texas Water Code (TWC),

§5.102, which establishes the general authority of the Texas

Commission on Environmental Quality (TCEQ, commission)

necessary to carry out its jurisdiction; §5.103, which establishes

that the commission, by rule, shall establish and approve all

general policy of the commission; §5.104, which establishes

the authority of the commission to enter memoranda of un

derstanding with any other state agency and adopt by rule the

memoranda of understanding; §5.105, which establishes the

general authority of the commission to adopt rules necessary

to carry out its powers and duties under the TWC and other

laws of this state; Texas Health and Safety Code, §382.035,

Memorandum of Understanding, which requires the commis

sion to adopt, by rule, any memorandum of understanding

between the commission and another state agency in relation

to the Texas Clean Air Act; and Texas Transportation Code,

§201.607, Environmental, Historical, or Archeological Memo

randum of Understanding, which requires the Texas Department

of Transportation and the TCEQ to examine and revise their

memorandum of understanding relating to the TCEQ review of

highway projects for potential environmental effects.

The proposed amendment implements requirements in Sections

1 and 5 of Senate Bill (SB) 548, Section 18 of SB 1420, and

Sections 1 and 5 of House Bill 630, 82nd Legislature, 2011. In

addition, the proposed amendment implements requirements in

Texas Transportation Code, §201.607.

§7.119. Memorandum of Understanding Between the Texas Depart

ment of Transportation and the Texas Commission on Environmental

Quality [ Texas Natural Resource Conservation Commission ].

The commission adopts by reference the rules of the Texas Department

of Transportation in 43 TAC §§2.301 - 2.308 [ §2.23 ] (relating to Mem

orandum of Understanding with the Texas Commission on Environ

mental Quality [ Texas Natural Resource Conservation Commission ]).

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency's legal author

ity to adopt.

Filed with the Office of the Secretary of State on May 23, 2013. TRD-201302059

David Timberger

Director, General Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: July 7, 2013

For further information, please call: (512) 239-2141



## CHAPTER 115. CONTROL OF AIR

POLLUTION FROM VOLATILE ORGANIC

COMPOUNDS

SUBCHAPTER E. SOLVENT-USING

PROCESSES

DIVISION 5. CONTROL REQUIREMENTS

FOR SURFACE COATING PROCESSES

30 TAC §115.453

The Texas Commission on Environmental Quality (TCEQ, com

mission, or agency) proposes amendments to §115.453.

If adopted, the amended section will be submitted to the United

States Environmental Protection Agency (EPA) as a revision to

the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Proposed

Rule

The 1990 Federal Clean Air Act (FCAA) Amendments (42 United

States Code (USC), §§7401 et seq.) require the EPA to estab

lish primary National Ambient Air Quality Standards (NAAQS)

that protect public health and to designate areas exceeding the

NAAQS as nonattainment areas. For each designated nonat

tainment area, the state is required to submit a SIP revision to

the EPA that provides for attainment and maintenance of the

NAAQS.

FCAA, §172(c)(1) requires that the SIP incorporate all reason

ably available control measures, including reasonably available

control technology (RACT), for sources of relevant pollutants.

The EPA defines RACT as the lowest emission limitation that

a particular source is capable of meeting by the application

of control technology that is reasonably available considering

technological and economic feasibility (44 FR 53761, Septem

ber 17, 1979). For nonattainment areas classified as moderate

and above, FCAA, §182(b)(2) requires the state to submit a SIP

revision that implements RACT for sources of volatile organic

compounds (VOC) addressed in a control techniques guidelines

(CTG) document issued between November 15, 1990 and

the area's attainment date. Under the 1997 eight-hour ozone

NAAQS, the Dallas-Fort Worth (DFW) area (Collin, Dallas,

Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant

Counties) is classified as a serious nonattainment area and the

Houston-Galveston-Brazoria (HGB) area (Brazoria, Chambers,

Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller

Counties) is classified as a severe nonattainment area.

CTG documents provide information to assist states and local

air pollution control authorities in determining RACT for specific

emission sources. The CTG documents describe the EPA's

evaluation of available information, including emission control

options and associated costs, and provide the EPA's RACT

recommendations for controlling emissions from these sources.

The CTG documents do not impose any legally binding regula

## PROPOSED RULES June 7, 2013 38 TexReg 3499tions or change any applicable regulations. The EPA's guidance

on RACT indicates that states can choose to implement the

CTG recommendations, implement an alternative approach, or

demonstrate that additional control for the CTG emission source

category is not technologically or not economically feasible in

the area.

FCAA, §183(e) directs the EPA to regulate VOC emissions from

certain consumer and commercial product categories by issu

ing national regulations or by issuing CTG documents in lieu of

regulations. In 2008, the EPA published CTG documents in lieu

of national regulations for VOC emissions from Miscellaneous

Metal and Plastic Parts Coatings (EPA-453/R-08-003).

In December 2011, the commission adopted rules (Rule Project

No. 2010-016-115-EN) to implement the EPA's 2008 Miscella

neous Metal and Plastic Parts Coating CTG recommendations

that the commission determined to be RACT in the DFW and

HGB 1997 eight-hour ozone nonattainment areas. The pream

ble to the 2011 rulemaking specifically discusses any differences

between the EPA's CTG recommendations and the RACT rules

adopted by the commission. The 2011 rulemaking required af

fected owners and operators to use one of the approved applica

tion systems listed in §115.453(c)(1) - (6) or another application

system capable of achieving a transfer efficiency equivalent to or

better than the transfer efficiency of high-volume, low-pressure

(HVLP) spray, which for the purpose of this rule is assumed to

be 65%.

Although the EPA's 2008 CTG recommended airless spray and

air-assisted airless spray application systems as RACT, the 2011

rulemaking omitted these two types of systems from the list of

approved application systems under the consideration that com

panies using these systems could demonstrate equivalency to

HVLP systems. However, demonstrating equivalency to HVLP

systems may be more difficult for airless spray and air-assisted

airless spray application systems than was anticipated during

the 2011 rulemaking. The intent of the 2011 rulemaking was to

implement RACT requirements consistent with the EPA's CTG

recommendations except for the specific deviations explicitly dis

cussed in the rule preamble. The rule preamble did not discuss

the omission of airless and air-assisted airless spray application

systems for the miscellaneous metal and plastic parts coating

CTG category. For these reasons, the commission has deter

mined that incorporating airless and air-assisted airless spray

systems into §115.453(c) is consistent with the EPA's 2008 CTG

recommendations and implements RACT as intended by the De

cember 2011 rulemaking.

The proposed rulemaking would revise §115.453(c) to incorpo

rate airless and air-assisted airless spray systems into the list of

approved application systems. The proposed rulemaking would

eliminate the need for affected owners and operators to perform

testing under existing §115.453(c)(7) or purchase a new applica

tion system in order to demonstrate compliance with the applica

tion system rule requirement. The proposed rulemaking would

also include non-substantive changes that are necessary to con

form to Texas Register formatting requirements.

Section Discussion

The commission proposes revising §115.453(c) to accommo

date listing airless and air-assisted airless spray application

systems. The commission proposes adding paragraph (7) to

incorporate airless spray and air-assisted airless spray sys

tems into the approved list of coating application systems for

metal and plastic parts surface coating processes specified in §115.450(a)(3) and (4). Proposed paragraph (7) would allow

the use of airless or air-assisted airless coating applications sys

tems for the coating of miscellaneous metal parts and products,

miscellaneous plastic parts and products, automotive/trans

portation and business machine plastic parts, and motor vehicle

materials.

The commission also proposes renumbering existing paragraph

(7) to proposed paragraph (8) without changes to the existing

language.

Fiscal Note: Costs to State and Local Government

Nina Chamness, Analyst, Strategic Planning and Assessment,

has determined that, for the first five-year period the proposed

rule is in effect, no significant fiscal implications are anticipated

for the agency as a result of administration or enforcement of the

proposed rule. For other units of state or local government, the

proposed rule will have no fiscal implications.

The proposed rulemaking would revise the RACT requirements

for the DFW and HGB 1997 eight-hour ozone nonattainment ar

eas by revising §115.453(c) to specifically add airless and air-as

sisted airless spray systems into the list of approved coating ap

plication systems for miscellaneous metal and plastic parts. The

proposed rulemaking would eliminate the need for affected own

ers and operators to conduct tests or purchase a different system

to demonstrate compliance with the requirements for application

systems per current RACT requirements.

The proposed rule would not have a significant fiscal impact on

the agency since currently available resources would be used

to implement rule provisions. Other state agencies and units of

local government do not typically use coating application sys

tems, and the proposed rule would not have any fiscal impacts

on these governmental entities.

Public Benefits and Costs

Nina Chamness also determined that for each year of the first

five years the proposed rule is in effect, the public benefit antici

pated from the changes seen in the proposed rule will be cost-ef

fective administration of the rule that is protective of the environ

ment and public health and safety.

The proposed rule will be consistent with the EPA's 2008 Mis

cellaneous Metal and Plastic Parts Coating CTG that the agency

had determined to be RACT for the DFW and HGB 1997 eighthour ozone nonattainment areas by specifically adding airless

and air-assisted airless spray coating systems to the current list

of approved application systems.

The proposed rule would save individuals that own a business

in the DFW and HGB 1997 eight-hour ozone nonattainment ar

eas and that use these technologies the cost of purchasing a

different system or the cost of testing current systems to demon

strate compliance as required by current §115.453(c)(7). The

agency does not maintain records of how many individuals or

businesses own or use these systems, and the magnitude of the

cost savings under the proposed rule will vary widely and depend

on application system design, the types of coating used, and the

size and shape of the miscellaneous metal or plastic part coated.

The agency has received cost estimates regarding the options

under current rule regarding testing and purchasing a new, com

pliant system to provide some information regarding cost sav

ings. According to two different automobile and light-duty truck

manufacturing sites in the state, cost savings for testing on parts

analogous to a miscellaneous metal or plastic part could range

from $7,500 to $10,000 per test. These estimates include those



## 38 TexReg 3500 June 7, 2013 Texas Registerfor an outside contractor to travel, to develop testing protocols,

to determine VOC content and densities, and to configure equip

ment. According to vendor estimates regarding the savings from

not having to purchase an average HVLP system, savings could

range from $2,500 to $3,000.

If a large business uses airless and air-assisted airless spray

systems, they too are expected to save testing or new system

costs, the significance of which would vary widely depending on

the same factors that will affect the magnitude of cost savings for

individuals. Large businesses are expected to experience the

same types of savings under the proposed rule that individuals

would experience.

Small Business and Micro-Business Assessment

No adverse fiscal implications are anticipated for small or microbusinesses as a result of the proposed rule. The agency does

not track the number or types of entities that might use these

coating systems, but it is expected that the proposed rule will

mostly benefit small businesses as discussed in the analysis of

the fiscal impacts to individuals.

Small Business Regulatory Flexibility Analysis

The commission has reviewed this proposed rulemaking and de

termined that a small business regulatory flexibility analysis is not

required because the proposed rule does not adversely affect a

small or micro-business in a material way for the first five years

that the proposed rule is in effect.

Local Employment Impact Statement

The commission has reviewed this proposed rulemaking and de

termined that a local employment impact statement is not re

quired because the proposed rule does not adversely affect a

local economy in a material way for the first five years that the

proposed rule is in effect.

Draft Regulatory Impact Analysis Determination

The commission reviewed the proposed rulemaking in light of

the regulatory impact analysis requirements of the Texas Gov

ernment Code, §2001.0225, and determined that the proposed

rulemaking does not meet the definition of a "major environmen

tal rule" as defined in that statute. A "major environmental rule"

means a rule the specific intent of which is to protect the environ

ment or reduce risks to human health from environmental expo

sure and that may adversely affect in a material way the econ

omy, a sector of the economy, productivity, competition, jobs, the

environment, or the public health and safety of the state or a sec

tor of the state. The specific intent of the proposed rulemaking

is to incorporate airless and air-assisted airless spray systems

into the list of approved application systems in §115.453(c) and

eliminate the need for affected owners and operators to perform

testing under existing §115.453(c)(7) or purchase a new system

in order to demonstrate compliance with the application system

rule requirement. As discussed in the Fiscal Note section of this

preamble, the proposed rulemaking is not anticipated to add any significant additional costs to affected individuals or businesses

beyond what is already required to comply with current standards

on the economy, a sector of the economy, productivity, competi

tion, jobs, the environment, or the public health and safety of the

state or a sector of the state.

Additionally, the proposed rulemaking does not meet any of the

four applicability criteria for requiring a regulatory impact anal

ysis for a major environmental rule, which are listed in Texas

Government Code, §2001.0225(a). Texas Government Code, §2001.0225, applies only to a major environmental rule, the re

sult of which is to: 1) exceed a standard set by federal law, un

less the rule is specifically required by state law; 2) exceed an

express requirement of state law, unless the rule is specifically

required by federal law; 3) exceed a requirement of a delega

tion agreement or contract between the state and an agency or representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specific state law.

The proposed rulemaking implements requirements of 42 USC,

§7410, which requires states to adopt a SIP that provides for the

implementation, maintenance, and enforcement of the NAAQS

in each air quality control region of the state. While 42 USC,

§7410 generally does not require specific programs, methods,

or reductions in order to meet the standard, the SIP must in

clude enforceable emission limitations and other control mea

sures, means or techniques (including economic incentives such

as fees, marketable permits, and auctions of emissions rights),

as well as schedules and timetables for compliance as may be

necessary or appropriate to meet the applicable requirements of

this chapter (42 USC, Chapter 85, Air Pollution Prevention and

Control). The provisions of the FCAA recognize that states are

in the best position to determine what programs and controls are

necessary or appropriate in order to meet the NAAQS. This flex

ibility allows states, affected industry, and the public, to collabo

rate on the best methods for attaining the NAAQS for the specific

regions in the state. Even though the FCAA allows states to de

velop their own programs, this flexibility does not relieve a state

from developing a program that meets the requirements of 42

USC, §7410. States are not free to ignore the requirements of

42 USC, §7410, and must develop programs to assure that their

contributions to nonattainment areas are reduced so that these

areas can be brought into attainment on schedule.

Additionally, states have further obligations under FCAA,

§172(c)(1) and §182(b)(2) to provide for RACT, for sources of

relevant pollutants in nonattainment areas, such as DFW and

HGB 1997 eight-hour ozone nonattainment areas. The EPA

defines RACT as the lowest emission limitation that a particular

source is capable of meeting by the application of control tech

nology that is reasonably available considering technological

and economic feasibility (44 FR 53761, September 17, 1979).

For nonattainment areas classified as moderate and above,

FCAA, §182(b)(2) requires the state to submit a SIP revision

that implements RACT for sources of VOC addressed in a CTG

document issued between November 15, 1990 and the area's

attainment date. FCAA, §183(e) directs the EPA to regulate

VOC emissions from certain consumer and commercial product

categories by issuing national regulations or by issuing CTG

documents in lieu of regulations. The EPA published CTG

documents in lieu of national regulations for VOC emissions

in 2008 for Miscellaneous Metal and Plastic Parts Coatings

(EPA-453/R-08-003).

In December 2011, the commission adopted rules (Rule Project

No. 2010-016-115-EN) that implemented requirements based

on recommendations in the EPA's 2008 Miscellaneous Metal

and Plastic Parts Coating CTG that the commission had deter

mined to be RACT in the DFW 1997 serious eight-hour ozone

nonattainment area and in the HGB 1997 severe eight-hour

ozone nonattainment area. The intent of the 2011 rulemaking

was to implement requirements consistent with the EPA's RACT

recommendations except where explicitly discussed in the rule

preamble. Airless and air-assisted airless spray application sys

tems were not discussed in the preamble for the miscellaneous



## PROPOSED RULES June 7, 2013 38 TexReg 3501metal and plastic parts coating CTG category. The purpose of

this proposed rulemaking is to incorporate airless and air-as

sisted airless spray systems into the approved list in §115.453(c)

consistent with the EPA's 2008 Miscellaneous Metal and Plastic

Parts Coating CTG recommendations and implement RACT

as intended by the December 2011 rulemaking. The proposed

rulemaking would incorporate airless and air-assisted airless

spray systems into the list of approved application systems in

§115.453(c) and would eliminate the need for affected owners

and operators to perform testing under existing §115.453(c)(7)

or purchase a new system in order to demonstrate compliance

with the application system rule requirement.

The requirement to provide a fiscal analysis of proposed regula

tions in the Texas Government Code was amended by Senate

Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB

633 was to require agencies to conduct a regulatory impact anal

ysis of extraordinary rules. These are identified in the statutory

language as major environmental rules that will have a material

adverse impact and will exceed a requirement of state law, fed

eral law, or a delegated federal program, or are adopted solely

under the general powers of the agency. With the understanding

that this requirement would seldom apply, the commission pro

vided a cost estimate for SB 633 concluding that "based on an

assessment of rules adopted by the agency in the past, it is not

anticipated that the bill will have significant fiscal implications for

the agency due to its limited application." The commission also

noted that the number of rules that would require assessment

under the provisions of the bill was not large. This conclusion

was based, in part, on the criteria set forth in the bill that ex

empted proposed rules from the full analysis unless the rule was

a major environmental rule that exceeds a federal law.

As discussed earlier in this preamble, the FCAA does not al

ways require specific programs, methods, or reductions in or

der to meet the NAAQS; thus, states must develop programs

for each area contributing to nonattainment to help ensure that

those areas will meet the attainment deadlines. Because of the

ongoing need to address nonattainment issues, and to meet the

requirements of 42 USC, §7410, the commission routinely pro

poses and adopts SIP rules. The legislature is presumed to un

derstand this federal scheme. If each rule proposed for inclusion

in the SIP was considered to be a major environmental rule that

exceeds federal law, then every SIP rule would require the full

regulatory impact analysis contemplated by SB 633. This con

clusion is inconsistent with the conclusions reached by the com

mission in its cost estimate and by the Legislative Budget Board

(LBB) in its fiscal notes. Since the legislature is presumed to

understand the fiscal impacts of the bills it passes, and that pre

sumption is based on information provided by state agencies and

the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules will have a broad im

pact, the impact is no greater than is necessary or appropriate

to meet the requirements of the FCAA. For these reasons, rules

adopted for inclusion in the SIP fall under the exception in Texas

Government Code, §2001.0225(a), because they are required

by federal law.

The commission has consistently applied this construction to its

rules since this statute was enacted in 1997. Since that time,

the legislature has revised the Texas Government Code, but

left this provision substantially unamended. It is presumed that

"when an agency interpretation is in effect at the time the legisla

ture amends the laws without making substantial change in the

statute, the legislature is deemed to have accepted the agency's interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d

485, 489 (Tex. App. Austin 1995), writ denied with per curiam

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997);

Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App.

Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert,

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); South

western Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).

The commission's interpretation of the regulatory impact anal

ysis requirements is also supported by a change made to the

Texas Administrative Procedure Act (APA) by the legislature in

1999. In an attempt to limit the number of rule challenges based

upon APA requirements, the legislature clarified that state agen

cies are required to meet these sections of the APA against the

standard of "substantial compliance." The legislature specifically

identified Texas Government Code, §2001.0225, as falling under

this standard. The commission has substantially complied with

the requirements of Texas Government Code, §2001.0225.

The specific intent of the proposed rulemaking is to incorpo

rate airless and air-assisted airless spray systems into the list of

approved application systems in §115.453(c) and eliminate the

need for affected owners and operators to perform testing un

der §115.453(c)(7) in order to demonstrate compliance with the

application system rule requirement. The proposed rulemaking

does not exceed a standard set by federal law or exceed an ex

press requirement of state law. No contract or delegation agree

ment covers the topic that is the subject of this proposed rulemaking. Therefore, this proposed rulemaking is not subject to

the regulatory analysis provisions of Texas Government Code,

§2001.0225(b).

Written comments on the draft regulatory impact analysis deter

mination may be submitted to the contact person at the address

listed under the Submittal of Comments section of this preamble.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), taking means a governmental action that affects private real property, in whole or

in part or temporarily or permanently, in a manner that requires

the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to

the United States Constitution or §17 or §19, Article I, Texas Con

stitution; or a governmental action that affects an owner's private

real property that is the subject of the governmental action, in

whole or in part or temporarily or permanently, in a manner that

restricts or limits the owner's right to the property that would oth

erwise exist in the absence of the governmental action; and is

the producing cause of a reduction of at least 25% in the market

value of the affected private real property, determined by com

paring the market value of the property as if the governmental

action is not in effect and the market value of the property deter

mined as if the governmental action is in effect.

The commission completed a takings impact analysis for the pro

posed rulemaking under Texas Government Code, §2007.043.

The specific purpose of the proposed rulemaking is to incorpo

rate airless and air-assisted airless spray systems into the list of

approved application systems in §115.453(c) and eliminate the

need for affected owners and operators to perform testing un

der existing §115.453(c)(7) or purchase another system in order

to demonstrate compliance with the application system rule re

quirement. As discussed in the Fiscal Note section of this pre



## 38 TexReg 3502 June 7, 2013 Texas Registeramble, the proposed rulemaking is not anticipated to add any significant additional costs to affected individuals or businesses

beyond what is already required to comply with current stan

dards. The proposed rulemaking will not create any additional

burden on private real property. The proposed rulemaking will

not affect private real property in a manner that would require

compensation to private real property owners under the United

States Constitution or the Texas Constitution. The proposal also

will not affect private real property in a manner that restricts or

limits an owner's right to the property that would otherwise ex

ist in the absence of the governmental action. Therefore, the

proposed rulemaking will not cause a taking under Texas Gov

ernment Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the proposed rulemaking and found

that the proposal is subject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination

Act, Texas Natural Resources Code, §§33.201 et seq., and

therefore must be consistent with all applicable CMP goals

and policies. The commission conducted a consistency de

termination for the proposed rule in accordance with Coastal

Coordination Act Implementation Rules, 31 TAC §505.22, and

found the proposed rulemaking is consistent with the applicable

CMP goals and policies.

The CMP goal applicable to the proposed rulemaking is the goal

to protect, preserve, and enhance the diversity, quality, quan

tity, functions, and values of coastal natural resource areas (31

TAC §501.12(1)). The CMP policy applicable to the proposed

rulemaking is the policy that commission rules comply with fed

eral regulations in 40 CFR, to protect and enhance air quality in

the coastal areas (31 TAC §501.32). The proposed rulemaking

would not increase emissions of air pollutants and is therefore

consistent with the CMP goal in 31 TAC §501.12(1) and the CMP

policy in 31 TAC §501.32.

Promulgation and enforcement of the rule will not violate or ex

ceed any standards identified in the applicable CMP goals and

policies because the proposed rule is consistent with these CMP

goals and policies and because the rule does not create or have

a direct or significant adverse effect on any coastal natural re

source areas. Therefore, in accordance with 31 TAC §505.22(e),

the commission affirms that this rulemaking action is consistent

with CMP goals and policies.

Written comments on the consistency of this rulemaking may be

submitted to the contact person at the address listed under the

Submittal of Comments section of this preamble.

Effect on Sites Subject to the Federal Operating Permits Pro

gram

Chapter 115 is an applicable requirement under 30 TAC Chap

ter 122, Federal Operating Permits Program. If the proposed

rule is adopted, owners or operators subject to the federal oper

ating permit program must, consistent with the revision process

in Chapter 122, upon the effective date of the rulemaking, re

vise their operating permit to include the adopted Chapter 115

requirements.

Announcement of Hearing

The commission will hold public hearings on this proposal in

Austin on June 25, 2013 at 10:00 a.m. at the Texas Commis

sion on Environmental Quality, Building E, Room 201S, 12100

Park 35 Circle Drive, Austin, Texas 78753; in Fort Worth, Texas

on June 27, 2013 at 6:00 p.m. at the Texas Commission on Envi

ronmental Quality Region 4 Office, DFW Public Meeting Room,

2309 Gravel Road, Fort Worth, Texas 76118; and in Houston,

Texas on July 2, 2013 at 6:00 p.m. at the Houston-Galveston

Area Council, Conference Room A, 3555 Timmons Lane, Hous

ton, Texas 77027. The hearings are structured for the receipt of

oral or written comments by interested persons. Individuals may

present oral statements when called upon in order of registra

tion. Open discussion will not be permitted during the hearings;

however, commission staff members will be available to discuss

the proposal 30 minutes prior to the hearings.

Persons who have special communication or other accommoda

tion needs who are planning to attend the hearings should con

tact Sandy Wong, Office of Legal Services, at (512) 239-1802.

Requests should be made as far in advance as possible.

Submittal of Comments

Written comments may be submitted to Michael Parrish, MC

205, Office of Legal Services, Texas Commission on Environ

mental Quality, P.O. Box 13087, Austin, Texas 78711-3087

or faxed to (512) 239-4808. Electronic comments may be

submitted at: http://www5.tceq.texas.gov/rules/ecomments /.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should refer

ence Rule Project Number 2013-012-115-AI. The comment

period closes July 8, 2013. Copies of the proposed rulemaking can be obtained from the commission's website at

http://www.tceq.texas.gov/nav/rules/propose_adopt.html

. For

further information, please contact Frances Dowiak, Air Quality

Planning Section, at (512) 239-3931.

Statutory Authority

The amended section is proposed under Texas Water Code

(TWC), §5.102, concerning General Powers, that provides the

commission with the general powers to carry out its duties under

the TWC; TWC, §5.103, concerning Rules, that authorizes the

commission to adopt rules necessary to carry out its powers

and duties under the TWC; TWC, §5.105, concerning General

Policy, that authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas

Health and Safety Code (THSC), §382.017, concerning Rules,

that authorizes the commission to adopt rules consistent with the

policy and purposes of the Texas Clean Air Act. The amended

section is also proposed under THSC, §382.002, concerning

Policy and Purpose, that establishes the commission's purpose

to safeguard the state's air resources, consistent with the pro

tection of public health, general welfare, and physical property;

§382.011, concerning General Powers and Duties, that autho

rizes the commission to control the quality of the state's air; and

§382.012, concerning State Air Control Plan, that authorizes the

commission to prepare and develop a general, comprehensive

plan for the proper control of the state's air. The amended

section is also proposed under THSC, §382.016, concerning

Monitoring Requirements; Examination of Records, that autho

rizes the commission to prescribe reasonable requirements for

the measuring and monitoring of air contaminant emissions; and

§382.021, concerning Sampling Methods and Procedures, that

authorizes the commission to prescribe the sampling methods

and procedures to determine compliance with its rules. The

amended section is also proposed under Federal Clean Air Act

(FCAA), 42 United States Code (USC), §§7401, et seq., which

requires states to submit SIP revisions that specify the manner

in which the National Ambient Air Quality Standards will be

achieved and maintained within each air quality control region

of the state.



## PROPOSED RULES June 7, 2013 38 TexReg 3503The amended section implements THSC, §§382.002, 382.011,

382.012, 382.016, 382.017, and 382.021; and FCAA, 42 USC,

§§7401 et seq.

§115.453. Control Requirements.

(a) The following control requirements apply to surface coating processes subject to this division. Except as specified in paragraph

(3) of this subsection, these limitations are based on the daily weighted

average of all coatings, as defined in §101.1 of this title (relating to

Definitions), as delivered to the application system.

(1) The following limits must be met by applying

low-volatile organic compound (VOC) coatings to meet the specified

VOC content limits on a pound of VOC per gallon of coating basis (lb

VOC/gal coating) (minus water and exempt solvent), or by applying

coatings in combination with the operation of a vapor control system,

as defined in §115.10 (relating to Definitions), to meet the specified

VOC emission limits on a pound of VOC per gallon of solids basis

(lb VOC/gal solids). If a coating meets more than one coating type

definition, then the coating with the least stringent VOC limit applies.

(A) Large appliances. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use

coating and the VOC limit for general coating applies.

Figure: 30 TAC §115.453(a)(1)(A) (No change.)

(B) Metal furniture. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use

coating and the VOC limit for general coating applies.

Figure: 30 TAC §115.453(a)(1)(B) (No change.)

(C) Miscellaneous metal parts and products. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use coating and the VOC limit for general coating applies.

Figure: 30 TAC §115.453(a)(1)(C) (No change.)

(D) Miscellaneous plastic parts and products. If a coating does not meet a specific coating category definition, then it can

be assumed to be a general-use coating and the VOC limit for general

coating applies.

Figure: 30 TAC §115.453(a)(1)(D) (No change.)

(E) Automotive/transportation and business machine

plastic parts. For red, yellow, and black automotive/transportation

coatings, except touch-up and repair coatings, the VOC limit is

determined by multiplying the appropriate limit in Table 1 of this

subparagraph by 1.15.

Figure: 30 TAC §115.453(a)(1)(E) (No change.)

(F) Pleasure craft. If a coating does not meet a specific

coating category definition, then it can be assumed to be a general-use

coating and the VOC limits for other coatings applies.

Figure: 30 TAC §115.453(a)(1)(F) (No change.)

(2) The coating VOC limits for motor vehicle materials applied to the metal and plastic parts in paragraph (1)(C) - (F) of this

subsection, as delivered to the application system, must be met using

low-VOC coatings (minus water and exempt solvent).

Figure: 30 TAC §115.453(a)(2) (No change.)

(3) The coating VOC limits for automobile and light-duty

truck assembly surface coating processes must be met by applying lowVOC coatings.

Figure: 30 TAC §115.453(a)(3) (No change.)

(A) The owner or operator shall determine compliance

with the VOC limits for electrodeposition primer operations on a monthly weighted average in accordance with §115.455(a)(2)(D) of this title (relating to Approved Test Methods and Testing Requirements).

(B) As an alternative to the VOC limit in Table 1

of this paragraph for final repair coatings, if an owner or operator

does not compile records sufficient to enable determination of the

daily weighted average, compliance may be demonstrated each day

by meeting a standard of 4.8 lb VOC/gal coating (minus water and

exempt solvent) on an occurrence weighted average basis. Compliance with the VOC limits on an occurrence weighted average basis

must be determined in accordance with the procedure specified in

§115.455(a)(2) of this title.

(C) The owner or operator shall determine compliance

with the VOC limits in Table 2 of this paragraph in accordance with

§115.455(a)(1) or (2)(C) of this title, as appropriate.

(4) The coating VOC limits for paper, film, and foil surface

coating processes must be met by applying low-VOC coatings to meet

the specified VOC content limits on a pound of VOC per pound of

coating basis, as delivered to the application system, or by applying

coatings in combination with the operation of a vapor control system

to meet the specified VOC emission limits on a pound of VOC per pound of solids basis, as delivered to the application system.

Figure: 30 TAC §115.453(a)(4) (No change.)

(5) An owner or operator applying coatings in combination

with the operation of a vapor control system to meet the VOC emission

limits in paragraph (1) or (4) of this subsection shall use the following

equation to determine the minimum overall control efficiency necessary to demonstrate equivalency. Control device and capture efficiency

testing must be performed in accordance with the testing requirements

in §115.455(a)(3) and (4) of this title.

Figure: 30 TAC §115.453(a)(5) (No change.)

(b) Except for the surface coating process in subsection (a)(2)

of this section, the owner or operator of a surface coating process may

operate a vapor control system capable of achieving a 90% overall control efficiency, as an alternative to subsection (a) of this section. Control

device and capture efficiency testing must be performed in accordance

with the testing requirements in §115.455(a)(3) and (4) of this title. If

the owner or operator complies with the overall control efficiency option under this subsection, then the owner or operator is exempt from

the application system requirements of subsection (c) of this section.

(c) The owner or operator of any surface coating process subject to this division shall not apply coatings unless one of the following

coating application systems is used:

(1) electrostatic application;

(2) high-volume, low-pressure (HVLP) spray;

(3) flow coat;

(4) roller coat;

(5) dip coat;

(6) brush coat or hand-held paint rollers; [or]

(7) for metal and plastic parts surface coating processes specified in §115.450(a)(3) and (4) of this title (relating to Applicability and Definitions), airless spray or air-assisted airless spray; or

(8) [(7)] other coating application system capable of

achieving a transfer efficiency equivalent to or better than that achieved

by HVLP spray. For the purpose of this requirement, the transfer

efficiency of HVLP spray is assumed to be 65%.

(d) The following work practices apply to the owner or operator of each surface coating process subject to this division.



## 38 TexReg 3504 June 7, 2013 Texas Register

## ♦ ♦ ♦ (1) For all coating-related activities including, but not limited to, solvent storage, mixing operations, and handling operations

for coatings and coating-related waste materials, the owner or operator shall:

(A) store all VOC-containing coatings and coating-related waste materials in closed containers;

(B) minimize spills of VOC-containing coatings;

(C) convey all coatings in closed containers or pipes;

(D) close mixing vessels and storage containers that

contain VOC coatings and other materials except when specifically in

use;

(E) clean up spills immediately; and

(F) for automobile and light-duty truck assembly coating processes, minimize VOC emissions from the cleaning of storage,

mixing, and conveying equipment.

(2) For all cleaning-related activities including, but not

limited to, waste storage, mixing, and handling operations for cleaning

materials, the owner or operator shall:

(A) store all VOC-containing cleaning materials and

used shop towels in closed containers;

(B) ensure that storage containers used for VOC-containing cleaning materials are kept closed at all times except when depositing or removing these materials;

(C) minimize spills of VOC-containing cleaning materials;

(D) convey VOC-containing cleaning materials from

one location to another in closed containers or pipes;

(E) minimize VOC emissions from cleaning of storage,

mixing, and conveying equipment;

(F) clean up spills immediately; and

(G) for metal and plastic parts surface coating processes specified in §115.450(a)(3) - (5) of this title [(relating to Applicability

and Definitions)], minimize VOC emission from the cleaning of application, storage, mixing, and conveying equipment by ensuring that

equipment cleaning is performed without atomizing the cleaning solvent and all spent solvent is captured in closed containers.

(3) The owner or operator of automobile and light-duty

truck assembly surface coating processes shall implement a work

practice plan containing procedures to minimize VOC emissions from

cleaning activities and purging of coating application equipment.

Properties with a work practice plan already in place to comply with

requirements specified in 40 Code of Federal Regulations (CFR)

§63.3094(b) (as amended through April 20, 2006 (71 FR 20464)), may incorporate procedures for minimizing non-hazardous air pollutant

VOC emissions to comply with the work practice plan required by

this paragraph.

(e) A surface coating process that becomes subject to subsection (a) of this section by exceeding the exemption limits in §115.451 of

this title (relating to Exemptions) is subject to the provisions in subsection (a) of this section even if throughput or emissions later fall below

exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with subsection (a)

of this section and one of the following conditions is met.

(1) The project that caused throughput or emission rate to

fall below the exemption limits in §115.451 of this title must be authorized by a permit, permit amendment, standard permit, or permit by rule required by Chapters 106 or 116 of this title (relating to Permits

by Rule; and Control of Air Pollution by Permits for New Construction

or Modification, respectively). If a permit by rule is available for the

project, the owner or operator shall continue to comply with subsec

tion (a) of this section for 30 days after the filing of documentation of

compliance with that permit by rule.

(2) If authorization by permit, permit amendment, standard

permit, or permit by rule is not required for the project, the owner or op

erator shall provide the executive director 30 days notice of the project

in writing.

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency's legal author

ity to adopt.

Filed with the Office of the Secretary of State on May 23, 2013.

TRD-201302063

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: July 7, 2013

For further information, please call: (512) 239-2548



## TITLE 34. PUBLIC FINANCE



# PART 1. COMPTROLLER OF PUBLIC

ACCOUNTS

CHAPTER 3. TAX ADMINISTRATION

SUBCHAPTER O. STATE SALES AND USE

TAX

34 TAC §3.305

The Comptroller of Public Accounts proposes an amendment to

§3.305, concerning criminal offenses and penalties. This section

is being amended to implement provisions of Senate Bill 934,

82nd Legislature, 2011.

Subsection (b)(2) is amended to implement Section 17 of Sen

ate Bill 934, 82nd Legislature, 2011, which amended Tax Code,

§151.707(b) to apply to all offenses described under Tax Code,

§151.707(a). Tax Code, §151.707(b) had applied only to of

fenses described under Tax Code, §151.707(a)(1) and (2). Sub

section (b)(2) is further amended to follow the statutory language

more closely.

Subsection (b)(4) is amended to implement Section 16 of Sen

ate Bill 934, 82nd Legislature, 2011, which amended Tax Code,

§151.7032 to change the grading of offenses prescribed by that

section and to provide that when tax is collected and not paid pur

suant to one scheme or continuous course of conduct, all such

conduct may be considered as one offense and the amounts ag

gregated in determining the grade of the offense.

Subsection (b)(7) is amended and new subsection (b)(8) is

added to implement Section 18 of Senate Bill 934, 82nd Leg

islature, 2011, which added Tax Code, §151.7075. This new

section defines a new criminal offense for intentionally failing to

produce records required to be kept under Tax Code, §151.025

to document a taxpayer's taxable sale of certain items that the

taxpayer obtained using a resale certificate when such records

are requested by the comptroller or her authorized representa

## PROPOSED RULES June 7, 2013 38 TexReg 3505

# TESTIMONY

### INDEX OF WRITTEN TESTIMONY

Reference Number Submitted by

W-1 

### Guy Donaldson, United States Environmental Protection Agency

## July 1, 3013

Ms. Patricia L. 

## Dur6n

General Law Division UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION6

1445 ROSS AVENUE, SUITE 1200

DALLAS TX 75202·2733



# JUL 0 1 2013

Texas Commission Environmental Quality

P .0. 

## Box 13087

Austin, TX 78711-3087

Dear Ms. Duron: 

# W-1

Thank you for the opportunity to comment on the proposed revisions to Texas' Air Pollution Control**Rules~** 

## Texas Administrative Code (TAC) Chapter 

## 115.453, as listed below:

Subchapter E

Division 

## 5 Solvent·U sing Processes

Control Requirements for Surface Coating Processes

This revision updates the December 2011 

## Rule Project No. 2010·016-115-EN, which implemented the

2008 CTG: Miscellaneous Metal and Plastic Parts Coating that the Commission determined to be RACT

in the 

## DFW and 

## HGB 1997 8·hour ozone nonattainment areas. The current revision is based on the

CTG, adding airless and air-assisted spray systems to the list of approved applications systems in

115.453(c) and eliminating the need for affected owners and operators to perform testing or purchase a

new system in order to demonstrate compliance with the application system rule requirement. We

concur with these revisions and have no additional comments.

We appreciate the opportunity to review and comment on the proposed rules prior to the public hearings

on June 25, 27, and July 2, 2013. If 

## you have questions regarding any of these comments, please feel

free to contact me or Ms. Ellen Belk ofmy staff at 

## (214) 665-2164.

cc: Ms. Frances Dowiak Sincerely yours,

Guy Donaldson

Chief

Air Planning Section

Texas Commission of Environmental Quality

Internet Address (Ufll) • http://w"'"'"·epa.gov/region6

Recycled/Recyclable • Printed with Vegetable 0\1 Based Inks on 100% Recycled Paper. Process Chlorine Free

### INDEX OF ORAL TESTIMONY



## June 25, 2013, 10:00 

## a.m. -Austin

NO ORAL TESTIMONYWAS RECEIVED PERTAINING TO THIS RULE REVISION.



## June 27, 2013, 

## 6:oop.m.

- Dallas

NO ORAL TESTIMONYW AS RECEIVED PERTAINING TO THIS RULE REVISION.



## July 2, 2013, 

## 6:oo p.m.

- Houston

NO ORAL TESTIMONY WAS RECEIVED PERTAINING TO THIS RULE REVISION.

# - 1 -



# Texas Commission on EnVironmental Quality

Public Hearing Registration

Date: June 25, 2013



### Time: 10:00 

### AM

Rule Project No.: 2013-012-115-AI

Short Title: Surface Coating Application System Requirements

Location: Building E, Conference Room 201S, at the commission's central office located at 12100 Park 35 Circle

Concerning: Proposed revision to 30 TAC Chapter 115 and to the State Implementation Plan

Name Representing Presenting Oral Testimony?

(Please Print) (Circle One)

Yes 

## No



# c; Yes 

## No 

# f..



# /. c (\_\**v~~** 

# {f)

Yes 

## No



# t[(l/lY 

# -

Yes 

## No 

# No '



### Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

## HEARING OFFICER REPORT



## I. am the hearing officer assigned to conduct the public hearing regarding the

proposed amendment to 30 

## TAC §115-453, 

## Control Requirements and

corresponding revisions to the state implementation plan (Rule Project No. 2013-

012-115-A!).



## A public hearing was scheduled for June 25, 2013 

## at 10:00 

## a.m. in Austin at the

Texas Commission on Environmental Quality, Building E, Room 201S, 12100



## Park 35 

## Circle Drive.

At 9:30 

## a.m., the room was open and TCEQ staff members were available to

discuss the proposaL At 

## 1o:oo a.m. TCEQ staff and a court reporter were present

and ready to open the hearing for public comment. After waiting for 15 

## minutes,

no one had arrived to make comments on the record. Therefore, the public

hearing was not formally opened for comment and a transcript was not prepared.

Date signed

' .j

## - 1 -



# Texas Commission on Environmental Quality

Public Hearing Registration

Date: June 27, 2013



## Time: 6:ooPM

Rule Project No.: 2013-012-115-AI



### Short Title: Surface Coating Application System Requirements

Location: DFW Public Meeting Room, at the commission's Region 4 office located at 2309 

### Gravel Road

Concerning: Proposed revision to 30 

### TAC Chapter 115 

### and to the State Implementation Plan

Name Representing Presenting Oral'J;'estimony?



### (Please Print) (Circle One)

Yes 

## No



## /

# ~0C~ Yes 

## No

# /~~ \)

Yes 

## No

# ~/\ 

# v

Yes 

## No 

# l

f\**·~**



# J'"'\ 

# t\ 

# w

Yes 

## No

'\

# ~\\_) Yes 

## No**\~** Yes 

## No

Yes 

## No

.**--~---····-** 

### -

.**-~·** . '-

···-···- 

## --

............... ---

............ ,_ 

### .. _..... ......... .. 

### ...... ······-

.... -·-

......... ··- ··-·--·-------

..

___ ,_. -·

. 

### ·-

......... --·· 

### -------· ··- 

### ·-------

----- 

### -- --····

.

## HEARING OFFICER REPORT



## I am the hearing officer assigned to conduct the public hearing regarding Surface

Coating Application System Requirements, Rule Project number 2013-012-115-



## AI.



## A public hearing was scheduled for June 27, 2013 

## at 6:oo p.m. in DFW Public

Meeting Room, at the commission's Region 4 office located at 2309 

## Gravel Road.

At 5:30 

## p.m. the room was open and TCEQ staff members were available to

discuss the proposal. At 6:oop.m., TCEQ staff and a court reporter were present

and ready to open the hearing for public comment. After waiting for 15 

## minutes,

no one had arrived to make comments on the record. Therefore, the public**h~aring** 

## was not formally opened for comment and a transcript was not prepared.

Date signed

## -2-



# Texas Commission on Environmental Quality

Public Hearing Registration

Date: 

## July 2, 2013



### Time: 6:ooPM



### Rule Project No.: 2013-012-115-AI



### Short Title: Surface Coating Application System Requirements

Location: Conference Room A, 

### at the Houston-Galveston Area Council located at 3555 

### Timmons Lane

Concerning: Proposed revision to 30 

### TAC Chapter 115 

### and to the State Implementation Plan

Name Representing Presenting Oral Testimony?



### (Please Print) (Circle One)

# N~c~~o.<--**\.~L** 

# ll r**~.--v·~\5,** 

# l+- &tAc Yes 

# e

"

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

Yes 

## No

## HEARING OFFICER REPORT



## I am the hearing officer assigned to conduct the public hearing regarding Surface

Coating Application System Requirements, Rule Project number 2013-012-115-

AI.



## A public hearing was scheduled for July 02, 2013 at 6:oo p.m. in Conference

Room A, at the Houston-Galveston Area Council located at 3555 Timmons Lane.

At 5:30p.m. the room was open and TCEQ staff members were available to

discuss the proposal. At 6:oop.m., TCEQ staff 

## and a court reporter were present

and ready to open the hearing for public comment. After waiting for 15 minutes,

no one had arrived to make comments on the record. Therefore, the public

hearing was not fonnally opened for comment and a transcript was not prepared.

armg Officer

Date signed

# EVALUATION

# Texas Commission on Environmental Quality

Interoffice Memorandum

To:

Thru:

From: Commissioners

Bridget C. Bohac, Chief Clerk

Zak Covar, Executive Director

Steve Hagle, P.E., Deputy Director

Office of Air 

## Date: October 4, 2013



## Docket No.: 2013-0413-RUL



## Subject: Commission Approval for Rulemaking Adoption

30 Texas Administrative Code (TAC) Chapter 115, Control of Air Pollution

from Volatile Organic Compounds

Surface Coating Application Systems Revision

Rule Project No. 2013-012-115-AI



## Background and reason(s) for the rulemaking:

For nonattainment areas classified as moderate and above, Federal Clean Air Act (FCAA),

§182(b)(2) requires the state to submit a state implementation plan (SIP) revision that

implements reasonably available control technology (RACT) for sources of volatile organic

compounds (VOC) addressed in a control techniques guidelines (CTG) document issued by

the United States Environmental Protection Agency (EPA) between November 15, 1990

and the area's attainment date. Under the 1997 eight-hour ozone National Ambient Air

Quality Standard, the Dallas-Fort Worth (DFW) eight-hour ozone nonattainment area (Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties)

is currently classified as a serious nonattainment area and the Houston-Galveston-Brazoria

(HGB) eight-hour ozone nonattainment area (Brazoria, Chambers, Fort Bend, Galveston,

Harris, Liberty, Montgomery, and Waller Counties) is currently classified as a severe

nonattainment area. In December 2011, the commission adopted rules (Rule Project No.

2010-016-115-EN) to implement the EPA's RACT recommendations in the 2008

Miscellaneous Metal and Plastic Parts Coatings CTG (EPA453/R-o8-003) in the DFW and

HGB 1997 eight-hour ozone nonattainment areas.

Adopted §115-453(c), concerning Control Requirements, requires the use of one of the

approved coating application systems listed or another application system capable of

achieving a transfer efficiency equivalent to or better than the transfer efficiency of highvolume, low-pressure (HVLP) spray, which is assumed to be 65% for the purpose of this

rule. Although the EPA's 2008 CTG recommended airless spray and air-assisted airless

spray application systems as RACT, the 2011 rulemaking omitted these two types of

systems from the list of approved application systems under the consideration that

companies using these systems could demonstrate equivalency to HVLP systems.

However, demonstrating equivalency to HVLP systems may be more difficult for airless

spray and air-assisted airless spray application systems than anticipated in the 2011

rulemaking.

## Commissioners

Page2

October 4, 2013

Re: Docket No. 2013-0413-RUL

This rulemaking revises the list of approved coating application systems in §115-453(c) to

include airless spray and air-assisted airless spray coating application systems. The

adopted rulemaking is consistent with the EPA's 2008 Miscellaneous Metal and Plastic

Parts Coatings CTG recommendations and implements RACT as intended by the December

2011 rulemaking. The adopted revision eliminates the unnecessary testing of airless spray

and air-assisted airless spray systems or purchase of new application equipment in order to

demonstrate compliance with the rule. If 

## adopted, staff will submit the amended rule to the

EPA as a SIP revision.



## Scope of the rulemaking:

A.) 

## Summary of what the rulemaking will do:

The adopted rulemaking revises the list of approved coating application systems in

§115-453(c) to include airless and air-assisted airless spray application systems for the

coating of miscellaneous metal parts and products, miscellaneous plastic parts and

products, and automotive/transportation and business machine plastic parts, and for the

application of motor vehicle materials in the DFW and HGB 1997 eight-hour ozone

nonattainment areas.



## B.) Scope required by federal regulations or state statutes:

For nonattainment areas classified as moderate and above, FCAA, §182(b)(2) requires the

state to submit a SIP revision that implements RACT for VOC emission sources addressed

in a CTG document issued by the EPA between November 15, 1990 and the area's

attainment date.

C.) 

## Additional staff recommendations that are not required by federal rule or

state statute:

None.



## Statutory authority:

The amended section is adopted under Texas Water Code (TWC), §5.102, concerning

General Powers, that provides the commission with the general powers to carry out its

duties under the TWC; TWC, §5.103, concerning Rules, that authorizes the commission to

adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105,

concerning General Policy, that authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas Health and Safety Code

(THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air Act. The amended section is

also adopted under THSC, §382.002, concerning Policy and Purpose, that establishes the

commission's purpose to safeguard the state's air resources, consistent with the protection

of public health, general welfare, and physical property; §382.011, concerning General

Powers and Duties, that authorizes the commission to control the quality of the state's air;

and §382.012, concerning State Air Control Plan, that authorizes the commission to

prepare and develop a general, comprehensive plan for the proper control of the state's air.

The amended section is also adopted under THSC §382.016, concerning Monitoring

## Commissioners

Page3

October 4, 2013

Re: Docket No. 2013-0413-RUL

Requirements; Examination of Records, that authorizes the commission to prescribe

reasonable requirements for the measuring and monitoring of air contaminant emissions;

and §382.021, concerning Sampling Methods and Procedures, that authorizes the

commission to prescribe the sampling methods and procedures to determine compliance

with its rules. The amended section is also adopted under Federal Clean Air Act (FCAA), 42

United States Code (USC), §§7401, 

## et seq., which requires states to submit state

implementation plan revisions that specify the manner in which the National Ambient Air

Quality Standards will be achieved and maintained within each air quality control region of

the state.

The amended section implements THSC, §§382.002, 382.011, 382.012, 382.016, and

382.017, 382.021, and FCAA, 42 USC, §§7401 

## et seq.

Effect on the:

A.) Regulated community:

The adopted rulemaking eliminates the need for affected owners and operators to perform

testing or to purchase a new application system in order to demonstrate compliance with

the coating application system requirements in §115-453(c).



## B.) Public:

The adopted rulemaking benefits the public through continued protection of air quality.



## C.) Agency programs:

The adopted rulemaking will not affect agency programs.



## Stakeholder meetings:

No stakeholder meetings were held for this adopted rulemaking.



## Public comment:

Public hearings were held in Austin, in the DFW area, and in the HGB area. No oral

comments were presented at these public hearings. One written comment was received

from the EPA supporting the rule revision to §115-453(c).



## Significant changes from proposal:

No substantive changes were made from proposal. One non-substantive revision was made

to §115-453(a)(1) to conform to 

## Texas Register formatting and style requirements.



## Potential controversial concerns and legislative interest:

Staff does not expect the EPA will object to the adopted rule revision because it submitted

comments in support of the change and because airless and air-assisted airless spray coating application systems are included in its 2008 Miscellaneous Metal and Plastic Parts

Coating CTG RACT recommendations. Since the rule was not revised prior to the March 1,

## Commissioners

Page4

October 4, 2013

Re: Docket No. 2013-0413-RUL

2013 compliance date, staff issued a memo to provide interim guidance on the

requirements for airless spray and air-assisted airless spray application systems.



## Does this rulemaking affect any current policies or require development of

new policies?

No.



## What are the consequences if this rule making does not go forward? Are there

alternatives to rulemaking?

The commission could decide to not proceed with rulemaking. The existing rule allows the

use of airless spray and air-assisted airless spray application systems if testing

demonstrates the transfer efficiency of these systems is equivalent to that of an HVLP

system.



## Key points in the adoption rulemaking schedule:



## Texas Register proposal publication date: June 

## 7, 2013



## Anticipated 

## Texas Register adoption publication date: November 8, 2013



## Anticipated effective date: November 14, 2013



## Six-month 

## Texas Register filing deadline: December 9, 2013



## Agency contacts:

Frances Dowiak, Rule Project Manager, 239-3931, Air Quality Division

Amy Browning, Staff Attorney, 239-0891

Michael Parrish, 

## Texas Register Coordinator, 239-2548



## Attachments

None.

cc: Chief Clerk, 2 copies

Executive Director's Office

Anne Idsal

Curtis Seaton

Tucker Royall

Office of General Counsel

Frances Dowiak

Michael Parrish

## EVALUATION OF TESTIMONY



## The Texas Commission on Environmental Quality (commission or agency) adopts the

amendment to §115-453 

## with changes to the proposed text as published in the June 7,

2013 issue of the 

## Texas Register (38 TexReg 3499).

The amendment will be submitted to the United States Environmental Protection

Agency (EPA) as a revision to the State Implementation Plan (SIP).



## Background and Summary of the Factual Basis for the Adopted Rule

The 1990 Federal Clean Air Act (FCAA) Amendments (42 United States Code (USC),

§§7401 

## et seq.) require the EPA to establish primary National Ambient Air Quality

Standards (NAAQS) that protect public health and to designate areas exceeding the

NAAQS as nonattainment areas. For each designated nonattainment area, the state is

required to submit a SIP revision to the EPA that provides for attainment and

maintenance of the NAAQS.

FCAA, §172(c)(1), concerning Nonattainment Plan Provisions in General, requires that

the SIP incorporate all reasonably available control measures, including reasonably

available control technology (RACT), for sources of relevant pollutants. The EPA defines

RACT as the lowest emission limitation that a particular source is capable of meeting by

the application of control technology that is reasonably available considering

technological and economic feasibility (44 FR 53761, September 17, 1979). For

nonattainment areas classified as moderate and above, FCAA, §182(b)(2), concerning

1

## Plan Submissions and Requirements, requires the state to submit a SIP revision that

implements RACT for sources of volatile organic compounds (VOC) addressed in a

control techniques guidelines (CTG) document issued between November 15, 1990 and

the area's attainment date. Under the 1997 eight-hour ozone NAAQS, the Dallas-Fort

Worth (DFW) area (Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall,

and Tarrant Counties) is classified as a serious nonattainment area and the HoustonGalveston-Brazoria (HGB) area (Brazoria, Chambers, Fort Bend, Galveston, Harris,

Liberty, Montgomery, and Waller Counties) is classified as a severe nonattainment area.

CTG documents provide information to assist states and local air pollution control

authorities in determining RACT for specific emission sources. The CTG documents

describe the EPA's evaluation of available information, including emission control

options and associated costs, and provide the EPA's RACT recommendations for

controlling emissions from these sources. The CTG documents do not impose any legally

binding regulations or change any applicable regulations. The EPA's guidance on RACT

indicates that states can choose to implement the CTG recommendations, implement an

alternative approach, or demonstrate that additional control for the CTG emission

source category is not technologically or not economically feasible in the area.

FCAA, §183(e), concerning Federal Ozone Measures, directs the EPA to regulate VOC

emissions from certain consumer and commercial product categories by issuing national

regulations or by issuing CTG documents in lieu of regulations. In 2008, the EPA

published CTG documents in lieu of national regulations for VOC emissions from

Miscellaneous Metal and Plastic Parts Coatings (EPA-453/R-08-003).

2

## In December 2011, the commission adopted rules (Rule Project No. 2010-016-115-EN)

to implement the EPA's 2008 Miscellaneous Metal and Plastic Parts Coating CTG

recommendations that the commission determined to be RACT in the DFW and HGB

1997 eight-hour ozone nonattainment areas. The preamble to the 2011 rulemaking

specifically discusses any differences between the EPA's CTG recommendations and the

RACT rules adopted by the commission. The 2011 rulemaking required affected owners

and operators to use one of the approved application systems listed in §115-453(c)(1)-

(6) or another application system capable of achieving a transfer efficiency equivalent to

or better than the transfer efficiency of high-volume, low-pressure (HVLP) spray, which

for the purpose of this rule is assumed to be 65%.

Although the EPA's 2008 CTG recommended airless spray and air-assisted airless spray

application systems as RACT, the 2011 rulemaking omitted these two types of systems

from the list of approved application systems under the consideration that companies

using these systems could demonstrate equivalency to HVLP systems. However,

demonstrating equivalency to HVLP systems may be more difficult for airless spray and

air-assisted airless spray application systems than was anticipated during the 2011

rulemaking. The intent of the 2011 rulemaking was to implement RACT requirements

consistent with the EPA's CTG recommendations except for the specific deviations

explicitly discussed in the rule preamble. The rule preamble did not discuss the

omission of airless and air-assisted airless spray application systems for the

miscellaneous metal and plastic parts coating CTG category. For these reasons, the

commission has determined that incorporating airless and air-assisted airless spray

3

## systems into §115-453(c) is consistent with the EPA's 2008 CTG recommendations and

implements RACT as intended by the December 2011 rulemaking.

The adopted rulemaking will revise §115-453(c) to incorporate airless and air-assisted

airless spray systems into the list of approved application systems. The adopted

rulemaking will eliminate the need for affected owners and operators to perform testing

under existing §115-453(c)(7) or purchase a new application system in order to

demonstrate compliance with the application system rule requirement. The adopted

rulemaking will also include non-substantive changes that are necessary to conform to



## Texas Register formatting requirements.



## Section Discussion

The commission adopts revisions to §115-453(c) to accommodate listing airless and airassisted airless spray application systems. The commission adopts revisions to

paragraph (7) to accommodate incorporating airless spray and air-assisted airless spray

systems into the approved list of coating application systems for metal and plastic parts

surface coating processes specified in §115-450(a)(3) and (4), concerning Applicability

and Definitions. Adopted paragraph (7) will allow the use of airless or air-assisted

airless coating applications systems for the coating of miscellaneous metal parts and

products, miscellaneous plastic parts and products, and automotive/transportation and

business machine plastic parts and for the application of motor vehicle materials.

The commission also adopts renumbering existing paragraph (7) to adopted paragraph

(8) without changes to the existing language. Furthermore, while not included in the



## 4

## proposed rulemaking, the commission adopts a non-substantive revision to subsection

(a)(l) to conform to 

## Texas Register formatting and style requirements.

Final Regulatory Impact Determination



## The commission reviewed the adopted rulemaking in light of the regulatory impact

analysis requirements of Texas Government Code, §2001.0225, concerning Regulatory

Analysis of Major Environmental Rules, and determined that the adopted rulemaking

does not meet the definition of a "major environmental rule" as defined in that statute.

A "major environmental rule" means a rule, the specific intent of which is to protect the

environment or reduce risks to human health from environmental exposure, and that

may adversely affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, or the public health and safety of the

state or a sector of the state. The specific intent of the adopted rule making is to

incorporate airless and air-assisted airless spray systems into the list of approved

application systems in §115-453(c) and eliminate the need for affected owners and

operators to perform testing under existing §115.453(c)(7) or purchase a new system in

order to demonstrate compliance with the application system rule requirement. The

adopted rulemaking is not anticipated to add any significant additional costs to affected

individuals or businesses beyond what is already required to comply with current

standards on the economy, a sector of the economy, productivity, competition, jobs, the

environment, or the public health and safety of the state or a sector of the state.

Additionally, the adopted rule making does not meet any of the four applicability criteria

for requiring a regulatory impact analysis for a major environmental rule, which are

5

## listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225,

applies only to a major environmental rule, the result of which is to: 1) exceed a

standard set by federal law, unless the rule is specifically required by state law; 2) exceed

an express requirement of state law, unless the rule is specifically required by federal

law; 3) exceed a requirement of a delegation agreement or contract between the state

and an agency or representative of the federal government to implement a state and

federal program; or 4) adopt a rule solely under the general powers of the agency

instead of under a specific state law.

The adopted rulemaking implements requirements of 42 USC, §7410, which requires

states to adopt a SIP that provides for the implementation, maintenance, and

enforcement of the NAAQS in each air quality control region of the state. While 42 USC,

§7410 generally does not require specific programs, methods, or reductions in order to

meet the standard, the SIP must include enforceable emission limitations and other

control measures, means, or techniques (including economic incentives such as fees,

marketable permits, and auctions of emissions rights), as well as schedules and

timetables for compliance as may be necessary or appropriate to meet the applicable

requirements of this chapter (42 USC, Chapter 85, Air Pollution Prevention and

Control). The provisions of the FCAA recognize that states are in the best position to

determine what programs and controls are necessary or appropriate in order to meet the

NAAQS. This flexibility allows states, affected industry, and the public, to collaborate on

the best methods for attaining the NAAQS for the specific regions in the state. Even

though the FCAA allows states to develop their own programs, this flexibility does not

relieve a state from developing a program that meets the requirements of 42 USC,

6

## §7410. States are not free to ignore the requirements of 42 USC, §7410, and must

develop programs to assure that their contributions to nonattainment areas are reduced

so that these areas can be brought into attainment on schedule.

Additionally, states have further obligations under FCAA, §172(c)(1) and §182(b)(2) to

provide for RACT, for sources of relevant pollutants in nonattainment areas, such as

DFW and HGB 1997 eight-hour ozone nonattainment areas. The EPA defines RACT as

the lowest emission limitation that a particular source is capable of meeting by the

application of control technology that is reasonably available considering technological

and economic feasibility (44 FR 53761, September 17, 1979). For nonattainment areas

classified as moderate and above, FCAA, §182(b)(2) requires the state to submit a SIP

revision that implements RACT for sources ofVOC addressed in a CTG document issued

between November 15, 1990 and the area's attainment date. FCAA, §183(e) directs the

EPA to regulate VOC emissions from certain consumer and commercial product

categories by issuing national regulations or by issuing CTG documents in lieu of

regulations. The EPA published CTG documents in lieu of national regulations for VOC

emissions in 2008 for Miscellaneous Metal and Plastic Parts Coatings (EPA-453/R-08-

003).

In December 2011, the commission adopted rules (Rule Project No. 2010-016-115-EN)

that implemented requirements based on recommendations in the EPA's 2008

Miscellaneous Metal and Plastic Parts Coating CTG that the commission had

determined to be RACT in the DFW 1997 serious eight-hour ozone nonattainment area

and in the HGB 1997 severe eight-hour ozone nonattainment area. The intent of the

7

## 2011 rulemaking was to implement requirements consistent with the EPA's RACT

recommendations except where explicitly discussed in the rule preamble. Air less and

air-assisted airless spray application systems were not discussed in the preamble for the

miscellaneous metal and plastic parts coating CTG category. The purpose of this

adopted rulemaking is to incorporate airless and air-assisted airless spray systems into

the approved list in §115-453(c) consistent with the EPA's 2008 Miscellaneous Metal

and Plastic Parts Coating CTG recommendations and implement RACT as intended by

the December 2011 rulemaking. The adopted rulemaking will incorporate airless and

air-assisted airless spray systems into the list of approved application systems in

§115-453(c) and would eliminate the need for affected owners and operators to perform

testing under existing §115-453(c)(7) or purchase a new system in order to demonstrate

compliance with the application system rule requirement.

The requirement to provide a fiscal analysis of proposed regulations in the Texas

Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature,

1997. The intent of SB 633 was to require agencies to conduct a regulatory impact

analysis of extraordinary rules. These are identified in the statutory language as major

environmental rules that will have a material adverse impact and will exceed a

requirement of state law, federal law, or a delegated federal program, or are adopted

solely under the general powers of the agency. With the understanding that this

requirement would seldom apply, the commission provided a cost estimate for SB 633

concluding that "based on an assessment of rules adopted by the agency in the past, it is

not anticipated that the bill will have significant fiscal implications for the agency due to

its limited application." The commission also noted that the number of rules that would

8

## require assessment under the provisions of the bill was not large. This conclusion was

based, in part, on the criteria set forth in the bill that exempted proposed rules from the

full analysis unless the rule was a major environmental rule that exceeds a federal law.

As 

## discussed earlier in this preamble, the FCAA does not always require specific

programs, methods, or reductions in order to meet the NAAQS; thus, states must

develop programs for each area contributing to nonattainment to help ensure that those

areas will meet the attainment deadlines. Because of the ongoing need to address

nonattainment issues, and to meet the requirements of 42 USC, §7410, the commission

routinely proposes and adopts SIP rules. The legislature is presumed to understand this

federal scheme. If 

## each rule proposed for inclusion in the SIP was considered to be a

major environmental rule that exceeds federal law, then every SIP rule would require

the full regulatory impact analysis contemplated by SB 633. This conclusion is

inconsistent with the conclusions reached by the commission in its cost estimate and by

the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed

to understand the fiscal impacts of the bills it passes, and that presumption is based on

information provided by state agencies and the LBB, the commission believes that the

intent of SB 633 was only to require the full regulatory impact analysis for rules that are

extraordinary in nature. While the SIP rules will have a broad impact, the impact is no

greater than is necessary or appropriate to meet the requirements of the FCAA. For

these reasons, rules adopte<l for inclusion in the SIP fall under the exception in Texas

Government Code, §2001.0225(a), because they are required by federal law.

The commission has consistently applied this construction to its rules since this statute

was enacted in 1997. Since that time, the legislature has revised the Texas Government

9

## Code, but left this provision substantially unamended. It 

## is presumed that "when an

agency interpretation is in effect at the time the legislature amends the laws without

making substantial change in the statute, the legislature is deemed to have accepted the

agency's interpretation." 

## Central Power & 

## Light Co. v. Sharp, 919 S.W.2d 485,489

(Tex. App. Austin 1995), 

## writ denied with per curiam opinion respecting another issue,

960 S.W.2d 617 (Tex. 1997); 

## Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex.

App. Austin 1990, 

## no writ). Cf Humble Oil & 

## Refining Co. v. Calvert, 414 S.W.2d 172

(Tex. 1967); 

## Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App.

Austin 2000); 

## Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and 

## Coastal Indust. Water Auth. v. Trinity Portland Cement

Div., 563 S.W.2d 916 (Tex. 1978).

The commission's interpretation of the regulatory impact analysis requirements is also

supported by a change made to the Texas Administrative Procedure Act (AP A) by the

legislature in 1999. In an attempt to limit the number of rule challenges based upon APA

requirements, the legislature clarified that state agencies are required to meet these

sections of the APA against the standard of "substantial compliance." The legislature

specifically identified Texas Government Code, §2001.0225, as falling under this

standard. The commission has substantially complied with the requirements of Texas

Government Code, §2001.0225.

The specific intent of the adopted rulemaking is to incorporate airless and air-assisted

airless spray systems into the list of approved application systems in §115-453(c) and

eliminate the need for affected owners and operators to perform testing under

10

## §115-453(c)(7) in order to demonstrate compliance with the application system rule

requirement. The adopted rulemaking does not exceed a standard set by federal law or

exceed an express requirement of state law. No contract or delegation agreement covers

the topic that is the subject of this adopted rulemaking. Therefore, this adopted

rule making is not subject to the regulatory analysis provisions of Texas Government

Code, §2001.0225(b).

The commission invited public comment regarding the draft regulatory impact analysis

determination during the public comment period. No comments were received.



## Takings Impact Assessment

Under Texas Government Code, §2007.002(5), concerning Definitions, taking means a

governmental action that affects private real property, in whole or in part or temporarily

or permanently, in a manner that requires the governmental entity to compensate the

private real property owner as provided by the Fifth and Fourteenth Amendments to the

United States Constitution or §17 or §19, Article I, Texas Constitution; or a

governmental action that affects an owner's private real property that is the subject of

the governmental action, in whole or in part or temporarily or permanently, in a manner

that restricts or limits the owner's right to the property that would otherwise exist in the

absence of the governmental action; and is the producing cause of a reduction of at least

25% in the market value of the affected private real property, determined by comparing

the market value of the property as if the governmental action is not in effect and the

market value of the property determined as if the governmental action is in effect.

11

## The commission completed a takings impact analysis for the adopted rulemaking under

Texas Government Code, §2007.043. The specific purpose of the adopted rule is to

incorporate air less and air-assisted airless spray systems into the list of approved

application systems in §115-453(c) and eliminate the need for affected owners and

operators to perform testing under existing §115-453(c)(7) or purchase another system

in order to demonstrate compliance with the application system rule requirement. The

adopted rule will not create any additional burden on private real property. The adopted

rule will not affect private real property in a manner that would require compensation to

private real property owners under the United States Constitution or the Texas

Constitution. The adopted rule also will not affect private real property in a manner that

restricts or limits an owner's right to the property that would otherwise exist in the

absence of the governmental action. Therefore, the adopted rule making will not cause a

taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that the adoption is

subject to the Texas Coastal Management Program (CMP) in accordance with the

Coastal Coordination Act, Texas Natural Resources Code, §§33.201 

## et seq., and therefore

must be consistent with all applicable CMP goals and policies. The commission

conducted a consistency determination for the adopted rule in accordance with Coastal

Coordination Act Implementation Rules, 31 TAC §505.22, and found the adopted

rulemaking is consistent with the applicable CMP goals and policies.

The CMP goal applicable to the adopted rulemaking is the goal to protect, preserve, and

12

## enhance the diversity, quality, quantity, functions, and values of coastal natural resource

areas (31 TAC §501.12(1)). The CMP policy applicable to the adopted rulemaking is the

policy that commission rules comply with federal regulations in 40 CFR, to protect and

enhance air quality in the coastal areas (31 TAC §501.32). The adopted rulemaking

would not increase emissions of air pollutants and is therefore consistent with the CMP

goal in 31 TAC §501.12(1) and the CMP policy in 31 TAC §501.32.

Promulgation and enforcement of the rule will not violate or exceed any standards

identified in the applicable CMP goals and policies because the adopted rule is

consistent with these CMP goals and policies and because the rule does not create or

have a direct or significant adverse effect on any coastal natural resource areas.

Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this

rulemaking action is consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the CMP during

the public comment period. No comments were received regarding consistency with the

CMP.



## Effect on Sites Subject to the Federal Operating Permits Program

Chapter 115 is an applicable requirement under 30 TAC Chapter 122, Federal Operating

Permits Program. Owners or operators that elect to comply with the control

requirement in §115-453(c)(7) may need to revise their operating permit.

13

## Public Comment

The commission held public hearings in Austin on June 25, 2013; in Fort Worth on June

27, 2013; and in Houston on July 2, 2013. The comment period closed on July 8, 2013.

The commission received no oral comments during the public hearings and received one

written comment from the EPA supporting the amendment made in this rulemaking.



## Response to Comments

The EPA commented that it concurs with the revision being made in this

rulemaking to include airless and air-assisted air less to the list of approved

coating application systems in §115.453(c).

The commission appreciates the comment and support ofthe revision to §115-453(c).

14

# RECOMMENDATION

## SUBCHAPTER E: SOLVENT-USING PROCESSES

DIVISION 5: CONTROL REQUIREMENTS FOR SURFACE

COATING PROCESSES

§115·453



## Statutory Authority

The amended section is adopted under Texas Water Code (TWC), §5.102, 

## concerning

General Powers, that provides the commission with the general powers to carry out its

duties under the TWC; TWC, §5.103, 

## concerning Rules, that authorizes the commission

to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105,



## concerning General Policy, that authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas Health and Safety Code

(THSC), §382.017, 

## concerning Rules, that authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air Act. The amended section

is also adopted under THSC, §382.002, 

## concerning Policy and Purpose, that establishes

the commission's purpose to safeguard the state's air resources, consistent with the

protection of public health, general welfare, and physical property; §382.011, 

## concerning

General Powers and Duties, that authorizes the commission to control the quality of the

state's air; and §382.012, 

## concerning State Air Control Plan, that authorizes the

commission to prepare and develop a general, comprehensive plan for the proper

control of the state's air. The amended section is also adopted under THSC §382.016,



## concerning Monitoring Requirements; Examination of Records, that authorizes the

commission to prescribe reasonable requirements for the measuring and monitoring of

air contaminant emissions; and §382.021, 

## concerning Sampling Methods and

1

## Procedures, that authorizes the commission to prescribe the sampling methods and

procedures to determine compliance with its rules. The amended section is also adopted

under Federal Clean Air Act (FCAA), 42 

## United States Code (USC), §§7401, 

## et seq.,

which requires states to submit state implementation plan revisions that specify the

manner in which the National Ambient Air Quality Standards will be achieved and

maintained within each air quality control region of the state.

The amended section implements THSC, §§382.002, 382.011, 382.012, 382.016, 

## and

382.017, 382.021, 

## and FCAA, 42 

## USC, §§7401 

## et seq.

§115.453. Control Requirements.

(a) The following control requirements apply to surface coating processes subject

to this division. Except as specified in paragraph (3) of this subsection, these limitations

are based on the daily weighted average of all coatings, as defined in §101.1 

## of this title

(relating to Definitions), as delivered to the application system.

(1) 

## The following limits must be met by applying low-volatile organic

compound (VOC) coatings to meet the specified VOC content limits on a pound ofVOC

per gallon of coating basis (lb VOC/gal coating) (minus water and exempt solvent), or by

applying coatings in combination with the operation of a vapor control system, as

defined in §115.10 

## ofthis title (relating to Definitions), to meet the specified VOC

emission limits on a pound ofVOC per gallon of solids basis (lb VOC/gal solids). If 

## a

2

## coating meets more than one coating type definition, then the coating with the least

stringent VOC limit applies.

(A) Large appliances. If 

## a coating does not meet a specific coating

type definition, then it can be assumed to be a general-use coating and the VOC limit for

general coating applies.

Figure: 30 TAC §115-453(a)(1)(A) (No change to the figure as it currently exists in TAC.)

(B) Metal furniture. If 

## a coating does not meet a specific coating

type definition, then it can be assumed to be a general-use coating and the VOC limit for

general coating applies.

Figure: 30 TAC §115-453(a)(1)(B) (No change to the figure as it currently exists in TAC.)

(C) Miscellaneous metal parts and products. If 

## a coating does not

meet a specific coating type definition, then it can be assumed to be a general-use

coating and the VOC limit for general coating applies.

Figure: 30 TAC §115-453(a)(1)(C) (No change to the figure as it currently exists in TAC.)

(D) Miscellaneous plastic parts and products. If 

## a coating does not

meet a specific coating category definition, then it can be assumed to be a general-use

coating and the VOC limit for general coating applies.

3

## Figure: 30 TAC §115-453(a)(1)(D) (No change to the figure as it currently exists in TAC.)

(E) Automotive/transportation and business machine plastic parts.

For red, yellow, and black automotive/transportation coatings, except touch-up and

repair coatings, the VOC limit is determined by multiplying the appropriate limit in

Table 1 of this subparagraph by 1.15.

Figure: 30 TAC §115-453(a)(1)(E) (No change to the figure as it currently exists in TAC.)

(F) Pleasure craft. If 

## a coating does not meet a specific coating

category definition, then it can be assumed to be a general-use coating and the VOC

limits for other coatings applies.

Figure: 30 TAC §115-453(a)(1)(F) (No change to the figure as it currently exists in TAC.)

(2) The coating VOC limits for motor vehicle materials applied to the metal

and plastic parts in paragraph (1)(C)- (F) of this subsection, as delivered to the

application system, must be met using low- VOC coatings (minus water and exempt

solvent).

Figure: 30 TAC §115-453(a)(2) (No change to the figure as it currently exists in TAC.)



## 4

## (3) The coating VOC limits for automobile and light-duty truck assembly

surface coating processes must be met by applying low- VOC coatings.

Figure: 30 TAC §115-453(a)(3) (No change to the figure as it currently exists in TAC.)

(A) The owner or operator shall determine compliance with the

VOC limits for electrodeposition primer operations on a monthly weighted average in

accordance with §115-455(a)(2)(D) of this title (relating to Approved Test Methods and

Testing Requirements).

(B) As 

## an alternative to the VOC limit in Table 1 of this paragraph

for final repair coatings, if an owner or operator does not compile records sufficient to

enable determination of the daily weighted average, compliance may be demonstrated

each day by meeting a standard of 4.8lb VOC/gal coating (minus water and exempt

solvent) on an occurrence weighted average basis. Compliance with the VOC limits on

an occurrence weighted average basis must be determined in accordance with the

procedure specified in §115-455(a)(2) of this title.

(C) The owner or operator shall determine compliance with the

VOC limits in Table 2 of this paragraph in accordance with §115-455(a)(1) or (2)(C) of

this title, as appropriate.

(4) The coating VOC limits for paper, film, and foil surface coating

processes must be met by applying low- VOC coatings to meet the specified VOC content

5

## limits on a pound ofVOC per pound of coating basis, as delivered to the application

system, or by applying coatings in combination with the operation of a vapor control

system to meet the specified VOC emission limits on a pound ofVOC per pound of solids

basis, as delivered to the application system.

Figure: 30 TAC §115-453(a)(4) (No change to the figure as it currently exists in TAC.)

(5) An owner or operator applying coatings in combination with the

operation of a vapor control system to meet the VOC emission limits in paragraph (1) 

## or

(4) of this subsection shall use the following equation to determine the minimum overall

control efficiency necessary to demonstrate equivalency. Control device and capture

efficiency testing must be performed in accordance with the testing requirements in

§115-455 (a)(3) and (4) of this title.

Figure: 30 TAC §115-453(a)(5) (No change to the figure as it currently exists in TAC.)

(b) 

## Except for the surface coating process in subsection (a)(2) of this section, the

owner or operator of a surface coating process may operate a vapor control system

capable of achieving a 90% overall control efficiency, as an alternative to subsection (a)

of this section. Control device and capture efficiency testing must be performed in

accordance with the testing requirements in §115-455(a)(3) and (4) of this title. If 

## the

owner or operator complies with the overall control efficiency option under this

subsection, then the owner or operator is exempt from the application system

requirements of subsection (c) of this section.



## 6

## (c) The owner or operator of any surface coating process subject to this division

shall not apply coatings unless one of the following coating application systems is used:

(1) 

## electrostatic application;

(2) 

## high-volume, low-pressure (HVLP) spray;

(3) flow coat;

(4) roller coat;

(5) dip coat;

(6) brush coat or hand-held paint rollers;

(7) for metal and plastic parts surface coating processes specified in

§115-450(a)(3) and (4) of this title (relating to Applicability and Definitions), airless

spray or air-assisted airless spray; or ·

(8) other coating application system capable of achieving a transfer

efficiency equivalent to or better than that achieved by HVLP spray. For the purpose of

this requirement, the transfer efficiency of HVLP spray is assumed to be 65%.

7

## (d) The following work practices apply to the owner or operator of each surface

coating process subject to this division.

(1) 

## For all coating-related activities including, but not limited to, solvent

storage, mixing operations, and handling operations for coatings and coating-related

waste materials, the owner or operator shall:

(A) store all VOC-containing coatings and coating-related waste

materials in closed containers;

(B) minimize spills ofVOC-containing coatings;

(C) convey all coatings in closed containers or pipes;

(D) close mixing vessels and storage containers that contain VOC

coatings and other materials except when specifically in use;

(E) clean up spills immediately; and

(F) for automobile and light-duty truck assembly coating processes,

minimize VOC emissions from the cleaning of storage, mixing, and conveying

equipment.

8

## (2) 

## For all cleaning-related activities including, but not limited to, waste

storage, mixing, and handling operations for cleaning materials, the owner or operator

shall:

(A) store all VOC-containing cleaning materials and used shop

towels in closed containers;

(B) ensure that storage containers used for VOC-containing

cleaning materials are kept closed at all times except when depositing or removing these

materials;

(C) minimize spills ofVOC-containing cleaning materials;

(D) conveyVOC-containing cleaning materials from one location to

another in closed containers or pipes;

(E) minimize VOC emissions from cleaning of storage, mixing, and

conveying equipment;

(F) clean up spills immediately; and

(G) for metal and plastic parts surface coating processes specified in

§115-450(a)(3)- (5) of this title (relating to Applicability and Definitions), minimize VOC

emission from the cleaning of application, storage, mixing, and conveying equipment by

9

## ensuring that equipment cleaning is performed without atomizing the cleaning solvent

and all spent solvent is captured in closed containers.

(3) The owner or operator of automobile and light-duty truck assembly

surface coating processes shall implement a work practice plan containing procedures to

minimize VOC emissions from cleaning activities and purging of coating application

equipment. Properties with a work practice plan already in place to comply with

requirements specified in 40 

## Code of Federal Regulations (CFR) §63.3094(b) 

## (as

amended through April 20, 2006 (71 

## FR 20464)), 

## may incorporate procedures for

minimizing non-hazardous air pollutant VOC emissions to comply with the work

practice plan required by this paragraph.

(e) A surface coating process that becomes subject to subsection (a) of this

section by exceeding the exemption limits in §115-451 

## of this title (relating to

Exemptions) is subject to the provisions in subsection (a) of this section even if

throughput or emissions later fall below exemption limits unless emissions are

maintained at or below the controlled emissions level achieved while complying with

subsection (a) of this section and one of the following conditions is met.

(1) 

## The project that caused throughput or emission rate to fall below the

exemption limits in §115-451 

## of this title must be authorized by a permit, permit

amendment, standard permit, or permit by rule required by Chapters 106 

## or 116 

## of this

title (relating to Permits by Rule; and Control of Air Pollution by Permits for New

Construction or Modification, respectively). If 

## a permit by rule is available for the

10

## project, the owner or operator shall continue to comply with subsection (a) of this

section for 30 

## days after the filing of documentation of compliance with that permit by

rule.

(2) 

## If 

## authorization by permit, permit amendment, standard permit, or

permit by rule is not required for the project, the owner or operator shall provide the

executive director 30 

## days notice of the project in writing.

11**0~ ~'~**  €_::;:- /'.

---·- r··,**~--** '--**--~-** '"

....**-~;.** -- _:.t-**,.-.,._,....-,_~ ::>-~_:-;-\.f**  --

..**·~--.--,-** ·- _, . 

## TEXAS COMMISSION ON ENVIRONMENTAL

# QpA.IJT~',, 

# . , . . - · ·· :,,

ORDER ADOPTING AMENDED RULE 

## AND

REVISION TO THE STATE IMPLEMENTATION PLAN

Docket No. 2013-0413-RUL

Rule Project No. 2013-012-115-AI . _ _:;



## On October 23, 2013, 

## the Texas Commission on Environmental Quality (Commission),

during a public meeting, considered adoption of amended § 115-453. 

## The Commission adopts

this amendment, in Chapter 115, 

## Control of Air Pollution from Volatile Organic Compounds;

Subchapter E, Solvent- Using Processes; and corresponding revision to the state

implementation plan (SIP). The adopted rule making will allow the use of air less and airassisted air less spray application systems for the coating of miscellaneous metal parts and

products, miscellaneous plastic parts and products, and automotive/transportation and

business machine plastic parts, and for the application of motor vehicle materials in the

Dallas-Fort Worth and Houston-Galveston-Brazoria 1997 

## eight-hour ozone nonattainment

areas. The adopted rulemaking implements reasonably available control technology

requirements consistent with the United States Environmental Protection Agency's 2008



## Miscellaneous Metal and Plastic Parts Coatings Control Techniques Guidelines

recommendations. Under Tex. Health & 

## Safety Code Ann. §§ 382.011, 382.012, 

## and 382.023



## (Vernon 2011), 

## the Commission has the authority to control the quality of the state's air and

to issue orders consistent with the policies and purposes of the Texas Clean Air Act, Chapter

382 

## of the Tex. Health & 

## Safety Code. The proposed rule was published for comment in the

June 7, 2013 

## issue ofthe 

## Texas Register (38 

## TexReg 3499).



## Pursuant to Tex. Health & 

## Safety Code Ann.§ 382.017 

## (Vernon 2001), 

## Tex. Gov't Code

Chapter 2001 

## (Vernon 2008), 

## and 40 

## Code of Federal Regulations§ 51.102, 

## and after proper

notice, the Commission conducted public hearings to consider the amended rule and revision

to the SIP. Proper notice included prominent advertisement in the areas affected at least 30



## days prior to the dates of the hearings. Public hearings were offered in Austin on June 25,

2013, 

## in Fort Worth on June 27, 2013, 

## and in Houston on July 2, 2013.



## The Commission circulated hearing notices of its intended action to the public,

including interested persons, the Regional Administrator of the EPA, and all applicable local

air pollution control agencies. The public was invited to submit data, views, and

recommendations on the proposed amended rule and SIP revision, either orally or in vvriting,

at the hearing or during the comment period. Prior to the scheduled hearings, copies of the,-·,·**~** 

### .**~** . '

. ' '



### . ' ' ' '

. / '

..**~** > '

, ',

# prop~~ed.;a~neridea d:tle and SIP revision were available for public inspection at the**Co~iri}s~ihiil'~,~~ir~l.l·office** 

## and on the Commission's Web site.**~** 0 ·., \ ;,;

### ~•\e,• ,:

, -'

.. )t! / /

### '~ ; .:



## ' :

· ·.'Data\**-vl.~$;-·apd** 

## recommendations of interested persons regarding the proposed

amendeg

## r-:u;l,~·**~md.SiP** revision were submitted to the Commission during the comment

period and**w~re** 

## considered by the Commission as reflected in the analysis of testimony

incorporated by reference to this Order. The Commission finds that the analysis of testimony

includes the names of all interested groups or associations offering comment on the proposed

amended rule and the SIP revision and their position concerning the same.

IT IS THEREFORE ORDERED BY 

## THE COMMISSION that the amended rule

and revision to the SIP incorporated by reference to this Order are hereby adopted. The

Commission further authorizes staff to make any non-substantive revisions to the rule

necessary to comply with 

## Texas Register requirements. The adopted rule and the preamble

to the adopted rule and the revision to the SIP are incorporated by reference in this Order as

if set forth at length verbatim in this Order.

IT IS FURTHER ORDERED BY 

## THE COMMISSION that on behalf of the

Commission, the**Chairm~n** 

## should transmit a copy of this Order, together with the adopted

rule and revision to the SIP, to the Regional Administrator of EPA as a proposed revision to

the Texas SIP pursuant to the Federal Clean Air Act, codified at 42 

## U.S. Code Ann. §§ 7401-

7671q, 

## as amended.

This Order constitutes the Order of the Commission required by the Administrative

Procedure Act, Tex. Gov't Code,§ 2001.033 

## (Vernon 2008).

·



## If any portion of this Order is for any reason held to be invalid by a court of competent

jurisdiction, the invalidity of any portion shall not affect the validity of the remaining

portions.

Issueddate: 

# OCT 

# 2 8 2013

TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

## ♦ ♦ ♦

♦ ♦ ♦ Filed with the Office of the Secretary of State on October 28,

2013.

TRD-201304896

Kerri Lewis

General Counsel

Texas Real Estate Commission

Effective date: January 1, 2014

Proposal publication date: August 30, 2013

For further information, please call: (512) 936-3092



## CHAPTER 539. RULES RELATING TO THE

RESIDENTIAL SERVICE COMPANY ACT

SUBCHAPTER Q. ISSUES AFFECTING

CONSUMERS

22 TAC §539.162

The Texas Real Estate Commission adopts new §539.162,

concerning Contract Requirements, without changes to the

proposed text as published in the August 30, 2013, issue of

the Texas Register (38 TexReg 5676). The rule will not be

republished.

The new section is adopted to require companies to provide a

disclosure in all contracts regarding how to file a complaint with

the Texas Real Estate Commission.

The reasoned justification for the new section is enhanced con

sumer protection for purchasers of residential service contracts.

No comments were received on the proposed new section.

The new section is adopted under Texas Occupations Code,

§1303.051, which authorizes the Texas Real Estate Commission

to adopt rules necessary to implement Texas Occupations Code,

Chapter 1303.

The statute affected by the new section is Texas Occupations

Code, Chapter 1303. No other statute, code or article is affected

by the new section.

The agency certifies that legal counsel has reviewed the adop

tion and found it to be a valid exercise of the agency's legal au

thority.

Filed with the Office of the Secretary of State on October 28,

2013.

TRD-201304897

Kerri Lewis

General Counsel

Texas Real Estate Commission

Effective date: November 17, 2013

Proposal publication date: August 30, 2013

For further information, please call: (512) 936-3092



## TITLE 30. ENVIRONMENTAL QUALITY



# PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY CHAPTER 115. CONTROL OF AIR

POLLUTION FROM VOLATILE ORGANIC

COMPOUNDS

SUBCHAPTER E. SOLVENT-USING

PROCESSES

DIVISION 5. CONTROL REQUIREMENTS

FOR SURFACE COATING PROCESSES

30 TAC §115.453

The Texas Commission on Environmental Quality (commission

or agency) adopts the amendment to §115.453 with changes to

the proposed text as published in the June 7, 2013, issue of the

Texas Register (38 TexReg 3499).

The amendment will be submitted to the United States Environ

mental Protection Agency (EPA) as a revision to the State Im

plementation Plan (SIP).

Background and Summary of the Factual Basis for the Adopted

Rule

The 1990 Federal Clean Air Act (FCAA) Amendments (42 United

States Code (USC), §§7401 et seq.) require the EPA to estab

lish primary National Ambient Air Quality Standards (NAAQS)

that protect public health and to designate areas exceeding the

NAAQS as nonattainment areas. For each designated nonat

tainment area, the state is required to submit a SIP revision to

the EPA that provides for attainment and maintenance of the

NAAQS.

FCAA, §172(c)(1), concerning Nonattainment Plan Provisions

in General, requires that the SIP incorporate all reasonably

available control measures, including reasonably available

control technology (RACT), for sources of relevant pollutants.

The EPA defines RACT as the lowest emission limitation that

a particular source is capable of meeting by the application

of control technology that is reasonably available considering

technological and economic feasibility (44 FR 53761, Septem

ber 17, 1979). For nonattainment areas classified as moderate

and above, FCAA, §182(b)(2), concerning Plan Submissions

and Requirements, requires the state to submit a SIP revision

that implements RACT for sources of volatile organic com

pounds (VOC) addressed in a control techniques guidelines

(CTG) document issued between November 15, 1990 and

the area's attainment date. Under the 1997 eight-hour ozone

NAAQS, the Dallas-Fort Worth (DFW) area (Collin, Dallas,

Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant

Counties) is classified as a serious nonattainment area and the

Houston-Galveston-Brazoria (HGB) area (Brazoria, Chambers,

Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller

Counties) is classified as a severe nonattainment area.

CTG documents provide information to assist states and local

air pollution control authorities in determining RACT for specific

emission sources. The CTG documents describe the EPA's

evaluation of available information, including emission control

options and associated costs, and provide the EPA's RACT

recommendations for controlling emissions from these sources.

The CTG documents do not impose any legally binding regula

tions or change any applicable regulations. The EPA's guidance

on RACT indicates that states can choose to implement the

CTG recommendations, implement an alternative approach, or

demonstrate that additional control for the CTG emission source



## 38 TexReg 7956 November 8, 2013 Texas Registercategory is not technologically or not economically feasible in

the area.

FCAA, §183(e), concerning Federal Ozone Measures, directs

the EPA to regulate VOC emissions from certain consumer and

commercial product categories by issuing national regulations

or by issuing CTG documents in lieu of regulations. In 2008, the

EPA published CTG documents in lieu of national regulations

for VOC emissions from Miscellaneous Metal and Plastic Parts

Coatings (EPA-453/R-08-003).

In December 2011, the commission adopted rules (Rule Project

No. 2010-016-115-EN) to implement the EPA's 2008 Miscella

neous Metal and Plastic Parts Coating CTG recommendations

that the commission determined to be RACT in the DFW and

HGB 1997 eight-hour ozone nonattainment areas. The pream

ble to the 2011 rulemaking specifically discusses any differences

between the EPA's CTG recommendations and the RACT rules

adopted by the commission. The 2011 rulemaking required af

fected owners and operators to use one of the approved applica

tion systems listed in §115.453(c)(1) - (6) or another application

system capable of achieving a transfer efficiency equivalent to or

better than the transfer efficiency of high-volume, low-pressure

(HVLP) spray, which for the purpose of this rule is assumed to

be 65%.

Although the EPA's 2008 CTG recommended airless spray and

air-assisted airless spray application systems as RACT, the 2011

rulemaking omitted these two types of systems from the list of

approved application systems under the consideration that com

panies using these systems could demonstrate equivalency to

HVLP systems. However, demonstrating equivalency to HVLP

systems may be more difficult for airless spray and air-assisted

airless spray application systems than was anticipated during

the 2011 rulemaking. The intent of the 2011 rulemaking was to

implement RACT requirements consistent with the EPA's CTG

recommendations except for the specific deviations explicitly dis

cussed in the rule preamble. The rule preamble did not discuss

the omission of airless and air-assisted airless spray application

systems for the miscellaneous metal and plastic parts coating

CTG category. For these reasons, the commission has deter

mined that incorporating airless and air-assisted airless spray

systems into §115.453(c) is consistent with the EPA's 2008 CTG

recommendations and implements RACT as intended by the De

cember 2011 rulemaking.

The adopted rulemaking will revise §115.453(c) to incorporate

airless and air-assisted airless spray systems into the list of ap

proved application systems. The adopted rulemaking will elimi

nate the need for affected owners and operators to perform test

ing under existing §115.453(c)(7) or purchase a new application

system in order to demonstrate compliance with the application

system rule requirement. The adopted rulemaking will also in

clude non-substantive changes that are necessary to conform

to Texas Register formatting requirements.

Section Discussion

The commission adopts the amendment to §115.453(c) to ac

commodate listing airless and air-assisted airless spray applica

tion systems. The commission adopts amended paragraph (7)

to accommodate incorporating airless spray and air-assisted airless spray systems into the approved list of coating application

systems for metal and plastic parts surface coating processes specified in §115.450(a)(3) and (4). Adopted paragraph (7) will

allow the use of airless or air-assisted airless coating applica

tions systems for the coating of miscellaneous metal parts and products, miscellaneous plastic parts and products, and auto

motive/transportation and business machine plastic parts and for

the application of motor vehicle materials.

The commission also adopts renumbering existing paragraph (7)

to adopted paragraph (8) without changes to the existing lan

guage. Furthermore, while not included in the proposed rulemaking, the commission adopts a non-substantive revision to

subsection (a)(1) to conform to Texas Register formatting and

style requirements.

Final Regulatory Impact Determination

The commission reviewed the adopted rulemaking in light of the

regulatory impact analysis requirements of Texas Government

Code, §2001.0225, and determined that the adopted rulemak

ing does not meet the definition of a "major environmental rule"

as defined in that statute. A "major environmental rule" means

a rule, the specific intent of which is to protect the environment

or reduce risks to human health from environmental exposure,

and that may adversely affect in a material way the economy, a

sector of the economy, productivity, competition, jobs, the envi

ronment, or the public health and safety of the state or a sector of

the state. The specific intent of the adopted rulemaking is to in

corporate airless and air-assisted airless spray systems into the

list of approved application systems in §115.453(c) and eliminate

the need for affected owners and operators to perform testing

under existing §115.453(c)(7) or purchase a new system in or

der to demonstrate compliance with the application system rule

requirement. The adopted rulemaking is not anticipated to add

any significant additional costs to affected individuals or busi

nesses beyond what is already required to comply with current

standards on the economy, a sector of the economy, productiv

ity, competition, jobs, the environment, or the public health and

safety of the state or a sector of the state.

Additionally, the adopted rulemaking does not meet any of the

four applicability criteria for requiring a regulatory impact anal

ysis for a major environmental rule, which are listed in Texas

Government Code, §2001.0225(a). Texas Government Code,

§2001.0225, applies only to a major environmental rule, the re

sult of which is to: 1) exceed a standard set by federal law, un

less the rule is specifically required by state law; 2) exceed an

express requirement of state law, unless the rule is specifically

required by federal law; 3) exceed a requirement of a delega

tion agreement or contract between the state and an agency or representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specific state law.

The adopted rulemaking implements requirements of 42 USC,

§7410, which requires states to adopt a SIP that provides for the

implementation, maintenance, and enforcement of the NAAQS

in each air quality control region of the state. While 42 USC,

§7410 generally does not require specific programs, methods,

or reductions in order to meet the standard, the SIP must include

enforceable emission limitations and other control measures,

means, or techniques (including economic incentives such as

fees, marketable permits, and auctions of emissions rights), as

well as schedules and timetables for compliance as may be

necessary or appropriate to meet the applicable requirements of

this chapter (42 USC, Chapter 85, Air Pollution Prevention and

Control). The provisions of the FCAA recognize that states are

in the best position to determine what programs and controls

are necessary or appropriate in order to meet the NAAQS.

This flexibility allows states, affected industry, and the public,

to collaborate on the best methods for attaining the NAAQS for



## ADOPTED RULES November 8, 2013 38 TexReg 7957the specific regions in the state. Even though the FCAA allows

states to develop their own programs, this flexibility does not

relieve a state from developing a program that meets the re

quirements of 42 USC, §7410. States are not free to ignore the

requirements of 42 USC, §7410, and must develop programs

to assure that their contributions to nonattainment areas are

reduced so that these areas can be brought into attainment on

schedule.

Additionally, states have further obligations under FCAA,

§172(c)(1) and §182(b)(2) to provide for RACT, for sources of

relevant pollutants in nonattainment areas, such as DFW and

HGB 1997 eight-hour ozone nonattainment areas. The EPA

defines RACT as the lowest emission limitation that a particular

source is capable of meeting by the application of control tech

nology that is reasonably available considering technological

and economic feasibility (44 FR 53761, September 17, 1979).

For nonattainment areas classified as moderate and above,

FCAA, §182(b)(2) requires the state to submit a SIP revision

that implements RACT for sources of VOC addressed in a CTG

document issued between November 15, 1990 and the area's

attainment date. FCAA, §183(e) directs the EPA to regulate

VOC emissions from certain consumer and commercial product

categories by issuing national regulations or by issuing CTG

documents in lieu of regulations. The EPA published CTG

documents in lieu of national regulations for VOC emissions

in 2008 for Miscellaneous Metal and Plastic Parts Coatings

(EPA-453/R-08-003).

In December 2011, the commission adopted rules (Rule Project

No. 2010-016-115-EN) that implemented requirements based

on recommendations in the EPA's 2008 Miscellaneous Metal and

Plastic Parts Coating CTG that the commission had determined

to be RACT in the DFW 1997 serious eight-hour ozone nonat

tainment area and in the HGB 1997 severe eight-hour ozone

nonattainment area. The intent of the 2011 rulemaking was to

implement requirements consistent with the EPA's RACT rec

ommendations except where explicitly discussed in the rule pre

amble. Airless and air-assisted airless spray application sys

tems were not discussed in the preamble for the miscellaneous

metal and plastic parts coating CTG category. The purpose

of this adopted rulemaking is to incorporate airless and air-as

sisted airless spray systems into the approved list in §115.453(c)

consistent with the EPA's 2008 Miscellaneous Metal and Plastic

Parts Coating CTG recommendations and implement RACT as

intended by the December 2011 rulemaking. The adopted rulemaking will incorporate airless and air-assisted airless spray sys

tems into the list of approved application systems in §115.453(c)

and would eliminate the need for affected owners and operators

to perform testing under existing §115.453(c)(7) or purchase a

new system in order to demonstrate compliance with the appli

cation system rule requirement.

The requirement to provide a fiscal analysis of proposed regula

tions in the Texas Government Code was amended by Senate

Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB

633 was to require agencies to conduct a regulatory impact anal

ysis of extraordinary rules. These are identified in the statutory

language as major environmental rules that will have a material

adverse impact and will exceed a requirement of state law, fed

eral law, or a delegated federal program, or are adopted solely

under the general powers of the agency. With the understanding

that this requirement would seldom apply, the commission pro

vided a cost estimate for SB 633 concluding that "based on an

assessment of rules adopted by the agency in the past, it is not

anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also

noted that the number of rules that would require assessment

under the provisions of the bill was not large. This conclusion

was based, in part, on the criteria set forth in the bill that ex

empted proposed rules from the full analysis unless the rule was

a major environmental rule that exceeds a federal law.

As discussed earlier in this preamble, the FCAA does not al

ways require specific programs, methods, or reductions in or

der to meet the NAAQS; thus, states must develop programs

for each area contributing to nonattainment to help ensure that

those areas will meet the attainment deadlines. Because of the

ongoing need to address nonattainment issues, and to meet the

requirements of 42 USC, §7410, the commission routinely pro

poses and adopts SIP rules. The legislature is presumed to un

derstand this federal scheme. If each rule proposed for inclusion

in the SIP was considered to be a major environmental rule that

exceeds federal law, then every SIP rule would require the full

regulatory impact analysis contemplated by SB 633. This con

clusion is inconsistent with the conclusions reached by the com

mission in its cost estimate and by the Legislative Budget Board

(LBB) in its fiscal notes. Since the legislature is presumed to

understand the fiscal impacts of the bills it passes, and that pre

sumption is based on information provided by state agencies and

the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules will have a broad im

pact, the impact is no greater than is necessary or appropriate

to meet the requirements of the FCAA. For these reasons, rules

adopted for inclusion in the SIP fall under the exception in Texas

Government Code, §2001.0225(a), because they are required

by federal law.

The commission has consistently applied this construction to its

rules since this statute was enacted in 1997. Since that time,

the legislature has revised the Texas Government Code, but

left this provision substantially unamended. It is presumed that

"when an agency interpretation is in effect at the time the legisla

ture amends the laws without making substantial change in the

statute, the legislature is deemed to have accepted the agency's

interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d

485, 489 (Tex. App. Austin 1995), writ denied with per curiam

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997);

Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App.

Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert,

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); South

western Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).

The commission's interpretation of the regulatory impact anal

ysis requirements is also supported by a change made to the

Texas Administrative Procedure Act (APA) by the legislature in

1999. In an attempt to limit the number of rule challenges based

upon APA requirements, the legislature clarified that state agen

cies are required to meet these sections of the APA against the

standard of "substantial compliance." The legislature specifically

identified Texas Government Code, §2001.0225, as falling under

this standard. The commission has substantially complied with

the requirements of Texas Government Code, §2001.0225.

The specific intent of the adopted rulemaking is to incorporate

airless and air-assisted airless spray systems into the list of

approved application systems in §115.453(c) and eliminate the

need for affected owners and operators to perform testing under



## 38 TexReg 7958 November 8, 2013 Texas Register§115.453(c)(7) in order to demonstrate compliance with the

application system rule requirement. The adopted rulemaking

does not exceed a standard set by federal law or exceed an

express requirement of state law. No contract or delegation

agreement covers the topic that is the subject of this adopted

rulemaking. Therefore, this adopted rulemaking is not subject to

the regulatory analysis provisions of Texas Government Code,

§2001.0225(b).

The commission invited public comment regarding the draft reg

ulatory impact analysis determination during the public comment

period. No comments were received.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), taking means a governmental action that affects private real property, in whole or

in part or temporarily or permanently, in a manner that requires

the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to

the United States Constitution or §17 or §19, Article I, Texas Con

stitution; or a governmental action that affects an owner's private

real property that is the subject of the governmental action, in

whole or in part or temporarily or permanently, in a manner that

restricts or limits the owner's right to the property that would oth

erwise exist in the absence of the governmental action; and is

the producing cause of a reduction of at least 25% in the market

value of the affected private real property, determined by com

paring the market value of the property as if the governmental

action is not in effect and the market value of the property deter

mined as if the governmental action is in effect.

The commission completed a takings impact analysis for the

adopted rulemaking under Texas Government Code, §2007.043.

The specific purpose of the adopted rule is to incorporate airless

and air-assisted airless spray systems into the list of approved

application systems in §115.453(c) and eliminate the need for

affected owners and operators to perform testing under existing

§115.453(c)(7) or purchase another system in order to demon

strate compliance with the application system rule requirement.

The adopted rule will not create any additional burden on pri

vate real property. The adopted rule will not affect private real

property in a manner that would require compensation to private

real property owners under the United States Constitution or the

Texas Constitution. The adopted rule also will not affect private

real property in a manner that restricts or limits an owner's right

to the property that would otherwise exist in the absence of the

governmental action. Therefore, the adopted rulemaking will not

cause a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found

that the adoption is subject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination

Act, Texas Natural Resources Code, §§33.201 et seq., and

therefore must be consistent with all applicable CMP goals

and policies. The commission conducted a consistency de

termination for the adopted rule in accordance with Coastal

Coordination Act Implementation Rules, 31 TAC §505.22, and

found the adopted rulemaking is consistent with the applicable

CMP goals and policies.

The CMP goal applicable to the adopted rulemaking is the goal

to protect, preserve, and enhance the diversity, quality, quantity,

functions, and values of coastal natural resource areas (31 TAC

§501.12(1)). The CMP policy applicable to the adopted rulemaking is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the

coastal areas (31 TAC §501.32). The adopted rulemaking would

not increase emissions of air pollutants and is therefore consis

tent with the CMP goal in 31 TAC §501.12(1) and the CMP policy

in 31 TAC §501.32.

Promulgation and enforcement of the rule will not violate or ex

ceed any standards identified in the applicable CMP goals and

policies because the adopted rule is consistent with these CMP

goals and policies and because the rule does not create or have

a direct or significant adverse effect on any coastal natural re

source areas. Therefore, in accordance with 31 TAC §505.22(e),

the commission affirms that this rulemaking action is consistent

with CMP goals and policies.

The commission invited public comment regarding the consis

tency with the CMP during the public comment period. No com

ments were received regarding consistency with the CMP.

Effect on Sites Subject to the Federal Operating Permits Pro

gram

Chapter 115 is an applicable requirement under 30 TAC

Chapter 122, Federal Operating Permits Program. Owners or

operators that elect to comply with the control requirement in

§115.453(c)(7) may need to revise their operating permit.

Public Comment

The commission held public hearings in Austin on June 25, 2013;

in Fort Worth on June 27, 2013; and in Houston on July 2, 2013.

The comment period closed on July 8, 2013. The commission re

ceived no oral comments during the public hearings and received

one written comment from the EPA supporting the amendment

made in this rulemaking.

The EPA commented that it concurs with the revision being made

in this rulemaking to include airless spray and air-assisted airless spray to the list of approved coating application systems in

§115.453(c).

Response to Comment

The commission appreciates the comment and support of the

revision to §115.453(c).

Statutory Authority

The amendment is adopted under Texas Water Code (TWC),

§5.102, concerning General Powers, that provides the commis

sion with the general powers to carry out its duties under the

TWC; TWC, §5.103, concerning Rules, that authorizes the com

mission to adopt rules necessary to carry out its powers and du

ties under the TWC; TWC, §5.105, concerning General Policy,

that authorizes the commission by rule to establish and approve

all general policy of the commission; and under Texas Health

and Safety Code (THSC), §382.017, concerning Rules, that au

thorizes the commission to adopt rules consistent with the policy

and purposes of the Texas Clean Air Act. The amended sec

tion is also adopted under THSC, §382.002, concerning Policy

and Purpose, that establishes the commission's purpose to safe

guard the state's air resources, consistent with the protection of

public health, general welfare, and physical property; §382.011,

concerning General Powers and Duties, that authorizes the com

mission to control the quality of the state's air; and §382.012,

concerning State Air Control Plan, that authorizes the commis

sion to prepare and develop a general, comprehensive plan for

the proper control of the state's air. The amendment is also

adopted under THSC §382.016, concerning Monitoring Require

ments; Examination of Records, that authorizes the commis

## ADOPTED RULES November 8, 2013 38 TexReg 7959sion to prescribe reasonable requirements for the measuring and

monitoring of air contaminant emissions; and §382.021, con

cerning Sampling Methods and Procedures, that authorizes the

commission to prescribe the sampling methods and procedures

to determine compliance with its rules. The amended section

is also adopted under Federal Clean Air Act (FCAA), 42 United

States Code (USC), §§7401, et seq., which requires states to

submit state implementation plan revisions that specify the man

ner in which the National Ambient Air Quality Standards will be

achieved and maintained within each air quality control region of

the state.

The amendment implements THSC, §§382.002, 382.011,

382.012, 382.016, 382.017, and 382.021; and FCAA, 42 USC,

§§7401 et seq.

§1 15.453. Control Requirements.

(a) The following control requirements apply to surface coating processes subject to this division. Except as specified in paragraph

(3) of this subsection, these limitations are based on the daily weighted

average of all coatings, as defined in §101.1 of this title (relating to

Definitions), as delivered to the application system.

(1) The following limits must be met by applying

low-volatile organic compound (VOC) coatings to meet the specified

VOC content limits on a pound of VOC per gallon of coating basis (lb

VOC/gal coating) (minus water and exempt solvent), or by applying

coatings in combination with the operation of a vapor control system,

as defined in §115.10 of this title (relating to Definitions), to meet the

specified VOC emission limits on a pound of VOC per gallon of solids

basis (lb VOC/gal solids). If a coating meets more than one coating

type definition, then the coating with the least stringent VOC limit

applies.

(A) Large appliances. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use

coating and the VOC limit for general coating applies.

Figure: 30 TAC §115.453(a)(1)(A) (No change.)

(B) Metal furniture. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use

coating and the VOC limit for general coating applies.

Figure: 30 TAC §115.453(a)(1)(B) (No change.)

(C) Miscellaneous metal parts and products. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use coating and the VOC limit for general coating applies.

Figure: 30 TAC §115.453(a)(1)(C) (No change.)

(D) Miscellaneous plastic parts and products. If a coating does not meet a specific coating category definition, then it can

be assumed to be a general-use coating and the VOC limit for general

coating applies.

Figure: 30 TAC §115.453(a)(1)(D) (No change.)

(E) Automotive/transportation and business machine

plastic parts. For red, yellow, and black automotive/transportation

coatings, except touch-up and repair coatings, the VOC limit is

determined by multiplying the appropriate limit in Table 1 of this

subparagraph by 1.15.

Figure: 30 TAC §115.453(a)(1)(E) (No change.)

(F) Pleasure craft. If a coating does not meet a specific

coating category definition, then it can be assumed to be a general-use

coating and the VOC limits for other coatings applies.

Figure: 30 TAC §115.453(a)(1)(F) (No change.) (2) The coating VOC limits for motor vehicle materials applied to the metal and plastic parts in paragraph (1)(C) - (F) of this

subsection, as delivered to the application system, must be met using

low-VOC coatings (minus water and exempt solvent).

Figure: 30 TAC §115.453(a)(2) (No change.)

(3) The coating VOC limits for automobile and light-duty

truck assembly surface coating processes must be met by applying lowVOC coatings.

Figure: 30 TAC §115.453(a)(3) (No change.)

(A) The owner or operator shall determine compliance

with the VOC limits for electrodeposition primer operations on a monthly weighted average in accordance with §115.455(a)(2)(D) of

this title (relating to Approved Test Methods and Testing Requirements).

(B) As an alternative to the VOC limit in Table 1

of this paragraph for final repair coatings, if an owner or operator

does not compile records sufficient to enable determination of the

daily weighted average, compliance may be demonstrated each day

by meeting a standard of 4.8 lb VOC/gal coating (minus water and

exempt solvent) on an occurrence weighted average basis. Compliance with the VOC limits on an occurrence weighted average basis

must be determined in accordance with the procedure specified in

§115.455(a)(2) of this title.

(C) The owner or operator shall determine compliance

with the VOC limits in Table 2 of this paragraph in accordance with

§115.455(a)(1) or (2)(C) of this title, as appropriate.

(4) The coating VOC limits for paper, film, and foil surface

coating processes must be met by applying low-VOC coatings to meet

the specified VOC content limits on a pound of VOC per pound of

coating basis, as delivered to the application system, or by applying

coatings in combination with the operation of a vapor control system

to meet the specified VOC emission limits on a pound of VOC per pound of solids basis, as delivered to the application system.

Figure: 30 TAC §115.453(a)(4) (No change.)

(5) An owner or operator applying coatings in combination

with the operation of a vapor control system to meet the VOC emission

limits in paragraph (1) or (4) of this subsection shall use the following

equation to determine the minimum overall control efficiency necessary to demonstrate equivalency. Control device and capture efficiency

testing must be performed in accordance with the testing requirements

in §115.455(a)(3) and (4) of this title.

Figure: 30 TAC §115.453(a)(5) (No change.)

(b) Except for the surface coating process in subsection (a)(2)

of this section, the owner or operator of a surface coating process may

operate a vapor control system capable of achieving a 90% overall control efficiency, as an alternative to subsection (a) of this section. Control

device and capture efficiency testing must be performed in accordance

with the testing requirements in §115.455(a)(3) and (4) of this title. If

the owner or operator complies with the overall control efficiency option under this subsection, then the owner or operator is exempt from

the application system requirements of subsection (c) of this section.

(c) The owner or operator of any surface coating process subject to this division shall not apply coatings unless one of the following

coating application systems is used:

(1) electrostatic application;

(2) high-volume, low-pressure (HVLP) spray;

(3) flow coat;

(4) roller coat;



## 38 TexReg 7960 November 8, 2013 Texas Register

## ♦ ♦ ♦ (5) dip coat;

(6) brush coat or hand-held paint rollers;

(7) for metal and plastic parts surface coating processes specified in §115.450(a)(3) and (4) of this title (relating to Applicability and Definitions), airless spray or air-assisted airless spray; or

(8) other coating application system capable of achieving a

transfer efficiency equivalent to or better than that achieved by HVLP

spray. For the purpose of this requirement, the transfer efficiency of

HVLP spray is assumed to be 65%.

(d) The following work practices apply to the owner or operator of each surface coating process subject to this division.

(1) For all coating-related activities including, but not limited to, solvent storage, mixing operations, and handling operations

for coatings and coating-related waste materials, the owner or operator shall:

(A) store all VOC-containing coatings and coating-related waste materials in closed containers;

(B) minimize spills of VOC-containing coatings;

(C) convey all coatings in closed containers or pipes;

(D) close mixing vessels and storage containers that

contain VOC coatings and other materials except when specifically in

use;

(E) clean up spills immediately; and

(F) for automobile and light-duty truck assembly coating processes, minimize VOC emissions from the cleaning of storage,

mixing, and conveying equipment.

(2) For all cleaning-related activities including, but not

limited to, waste storage, mixing, and handling operations for cleaning

materials, the owner or operator shall:

(A) store all VOC-containing cleaning materials and

used shop towels in closed containers;

(B) ensure that storage containers used for VOC-containing cleaning materials are kept closed at all times except when depositing or removing these materials;

(C) minimize spills of VOC-containing cleaning materials;

(D) convey VOC-containing cleaning materials from

one location to another in closed containers or pipes;

(E) minimize VOC emissions from cleaning of storage,

mixing, and conveying equipment;

(F) clean up spills immediately; and

(G) for metal and plastic parts surface coating processes specified in §115.450(a)(3) - (5) of this title, minimize VOC emission

from the cleaning of application, storage, mixing, and conveying equipment by ensuring that equipment cleaning is performed without atomizing the cleaning solvent and all spent solvent is captured in closed

containers.

(3) The owner or operator of automobile and light-duty

truck assembly surface coating processes shall implement a work

practice plan containing procedures to minimize VOC emissions from

cleaning activities and purging of coating application equipment.

Properties with a work practice plan already in place to comply with

requirements specified in 40 Code of Federal Regulations (CFR)

§63.3094(b) (as amended through April 20, 2006 (71 FR 20464)), may incorporate procedures for minimizing non-hazardous air pollutant

VOC emissions to comply with the work practice plan required by

this paragraph.

(e) A surface coating process that becomes subject to subsection (a) of this section by exceeding the exemption limits in §115.451 of

this title (relating to Exemptions) is subject to the provisions in subsection (a) of this section even if throughput or emissions later fall below

exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with subsection (a)

of this section and one of the following conditions is met.

(1) The project that caused throughput or emission rate to

fall below the exemption limits in §115.451 of this title must be authorized by a permit, permit amendment, standard permit, or permit by

rule required by Chapters 106 or 116 of this title (relating to Permits

by Rule; and Control of Air Pollution by Permits for New Construction

or Modification, respectively). If a permit by rule is available for the

project, the owner or operator shall continue to comply with subsection (a) of this section for 30 days after the filing of documentation of

compliance with that permit by rule.

(2) If authorization by permit, permit amendment, standard

permit, or permit by rule is not required for the project, the owner or operator shall provide the executive director 30 days notice of the project

in writing.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 25,

2013.

TRD-201304860

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 14, 2013

Proposal publication date: June 7, 2013

For further information, please call: (512) 239-2548



## CHAPTER 336. RADIOACTIVE SUBSTANCE

RULES

SUBCHAPTER L. LICENSING OF SOURCE

MATERIAL RECOVERY AND BY-PRODUCT

MATERIAL DISPOSAL FACILITIES

30 TAC §336.1115

The Texas Commission on Environmental Quality (TCEQ,

agency, commission) adopts an amendment to §336.1115.

Section 336.1115 is adopted with changes to the proposed text

as published in the July 5, 2013, issue of the Texas Register (38

TexReg 4300), as corrected in the July 19, 2013, issue of the

Texas Register (38 TexReg 4653), and will be republished.

Background and Summary of the Factual Basis for the Adopted

Rule

In response to a petition for rulemaking, the commission adopts

this rulemaking to amend the decommissioning standards appli

cable to radioactive source material (i.e., uranium mining) sites



## ADOPTED RULES November 8, 2013 38 TexReg 7961