$; KathleenHartnettWhite, Chairman R. B. "Ralph" Marquez,Commissioner Larry R. Soward,Commissioner Glenn Shankle,Executive Director 

# TEXAS COMMISSION ON 

# ENVIRONMENTAL QUALITY Protecting 

### TerasbyReducingandPreventing Pollution 

### Docket

### No. 2005-0792RUL
January 23,2006
Richard

### E. Greene, Regional Administrator U.S. Environmental ProtectionAgency 

## - Region 

### 6 1445Ross Avenue Dallas, Texas 75202-2733 Dear Mayor Greene: On 

### December 14, 2005, the Texas Commission on Environmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP). The Commission adopted amendments to 

## $8 101.1, 101.201, 101.211, and 101.221, 

## - 101.223 in 30 TAC Chapter 101, General Air Quality Rules, and corresponding revisions to the SIP. The adopted rulemaking modifies existing and adds new definitions, revises the notification and reporting requirements for emissions events and scheduledmaintenance, startup, and shutdown (MSS) activities. The adopted rulemaking adds the concepts ofunplanned andplannedMSS activities. The adoptedrulemakingprovidesfor an affirmative defense for certain 

### emissions and revises some of the demonstration criteria for qualifying for 

### an affirmative defense. The adopted rulemaking alsoprovidesthat the affirmative defenseforplanned MSS activities would be phase'd out for various groups of industries over several years, based on the applicable listed Standard Industrial Classification Codes. Finally, the adopted rulemaking incorporatesapplicable statutorychanges inHouse Bill 2129, 79th Legislature, 2005. 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 SIEtrevi&~. cn 

### =:r. 

# - cJ. 

### Sincerely,

lathleen HartnettWhite Chairman

Enclosures
cc: 

### The Honorable Rick Perry, Governorof Texas Mr. Zak 

### Covar, Office ofBudget, Planning and Policy, Officeofthe Governor Mr. Glenn Shankle,Executive Director, Texas Commissionon Environmental Quality P.0. Box 13087 Austin, Texas78711-3087 512/239-1000 Internetaddress:www.tceq.state.tx.us

, ., " .,*, , t3 .s?\--,..< -8Texas Commissionon Environmental Quality Public Hearings August 2, 3,4,5,and 8,2005 30TAC Chapter 101 Emission Events andthe State Implementation Plan Rule Project No. 2005-024-101-CE 

### Volume 

### 2 of 

### 2

### INTRODUCTION

TheTexas Commissionon Environmental Quality (commission)held public hearings on the followingdates: August 2, 2005, at 2:00 p.m., inAustin; August 3, 2005, at 10:OO a.m., inArlington; August 4, 2005, at 7:00 p.m., in Houston; August 5, 2005, at 1.00 p.m., in Corpus Christi,; and August 8, 2005, at 10:OO a.m., in Midland to receive testimony regarding revisions to 30 TAC Chapter 101, General Air Quality Rules; and corresponding revisions to the

# exa as state implementation plan (SIP).

The amendments to §§I01.I, 101.201, 101.211

### ,.101.221 

## - 101.223 modify existing definitions, add new definitions, and revise the notification and reporting requirements for emissions events and scheduled maintenance,startup,and shutdown(MSS) activities. Theamendmentsalsoaddthe conceptsof unplanned and planned MSS activities; providefor an affirmative defense for certain emissions from upset events and unplanned MSS activities, including excess opacity associated with upset events and unplanned MSS activities; and revisesomeof the demonstration criteriafor qualifyingfor an affirmative defense. Inaddition, the amendments provide that the affirmative defense for planned MSS activities would be phased out according to a prescribedpermit application schedule, and replaced byenforcement discretion untilthere is final action on the permit. Finally, the amendments incorporateapplicable statutory changes in House Bill 2129, 79th Legislature, 2005.

The comment period closed on August 8, 2005. All testimony and comments have been reviewed and seriously considered. This hearing record contains a complete recordof the public hearings and is divided intothefollowing four sections:



# . Public Notificationand Proposal



# . Written and Oral Testimony



# . Evaluationof Testimony



# . Staff Recommendations

Additional copies of this hearing record are maintained in the TCEQ central office at 121 00 Park 35 Circle, Austin, Texas 78753. Forfurther information, contact Ramiro Garcia at (512) 239-4481 or Steve Ligon at (51 2) 239-1527.

# EVALUATION 

# OF TESTIMONY

# Texas Commission on Environmental Quality INTEROFFICEMEMORANDUM



### To: Commissioners Date: November 22, 2005 Thru: LaDonna Castaiiuela, Chief Clerk Glenn Shankle, Executive Director From: John F. Steib, Jr., Deputy Director Office of Compliance and Enforcement Docket No.: 2005-0792-RUL Subject: Commission Approval for Rulemaking Adoption Chapter 101, General Air Quality Rules Emissions Events Revisions Rule Project No. 2005-024-101-CE Reasons for the rule package: The adopted rulemaking modifies existing definitions, adds new definitions, and revises the notification andreporting requirementsfor emissions eventsand scheduledmaintenance, startup, and shutdown(MSS) activities. It adds the concepts of unplanned and planned MSS activities. It also provides for an affirmative defense for certain emissions from emissions events and MSS activities, and revises the demonstrationcriteria for an affirmative defense. The adopted rulemaking also incorporates applicable statutory changes in House Bill (HB) 2129, 79th Legislature, 2005. Sections 101.221 - 101.223 were amended in December 2003 and submitted to the United States Environmental Protection Agency (EPA) as revisions to the Texas state implementation plan (SIP), and received limited SIP approval from EPA. Those revisions included an expiration date of June 30, 2005, for $5101.221 - 101.223. An earlier adopted rulemaking extended the expiration date to January 15, 2006, unless the commission submits a revised version of 99101.221 - 101.223 to the EPA for review and approval. If the commission submits these adopted revisions to the EPA, these sectionswould expire on June 30, 2006. This rulemaking will be submittedto EPA as a SIP revision; current rules have only limited approval into the SIP.

• 

### Ullderwhatauthorityareweproposing these changes? Texas Water Code, 95.103and 95.105; and Texas Health and Safety Code (THSC), 59382.002, 382.011, 382.012, 382.017, 382.0215, 382.0216, and 382.085.

• 

### Is this rulemaking required by federal rule or state statute? Which ones? The rules concerning emissions events and MSS activities were required by 

### HB 2912, $5.01 and 

## 918.14, 77th Legislature,2001 and HB 2129,79thLegislature,2005. Changes to the affirmative defense sections are required in order to obtain full SIP approval.

• 

### Are there any legaldeadlines by which these rules must be adopted or effective? The current rules containan expirationdate ofJanuary 15, 2006,unless the commission submits amendments for consideration to the EPA. With the submittal of this package, the deadline for these sections would not expireuntil June 30,2006. If EPA approves the submittal by June 30, 2006, the rules will not expire.

### Commissioners Page 2 November 22, 2005 Re: Docket No. 2005-0792-RUL


### What issue(@or problem(@are we trying to solve? The current rules have received only limited approval as a revisionto the SIPby EPA. Therefore, these amendmentswill be submitted to EPA to obtain full SIP approval. In addition, the rules address issues with reporting. 

### Why is it important that we do this rule package? These rules provide specificity for implementingthe statutesregarding emissions events reporting. These rules alsoprovide specific outcomes for proving specific criteria regarding certain unauthorized emissions. Changes to the affirmative defense sections are required in order to obtain full SIP approval. 

### Other important background or historical information. The commission has extended the expirationof 

## $5101.221

### - 101.223to January 15, 2006, unless the commission submits a revised version of these sectionsto the EPA for review and approval. With the submittal ofthis package the sections would expire on June 30, 2006. 

### Scope of the rulemaking: The adopted ruleinaking modifies existing definitions, adds new definitions, and revises the notificationand reporting requirements for emissions events and MSS activities. It adds the concepts of unplanned and planned MSS activities. It also provides for an affirmative defense for certain emissions fromemissionsevents and MSS activitiesandrevises some ofthe demonstration criteria for qualifying for an affirmative defense. The adopted rulemaking also incorporates applicable statutory changes in HB 2129, 79th Legislature, 2005. 

### Project scope: The adopted rulemaking will: incorporate applicablestatutory changes in HB 2129, 79th Legislature, 2005, by adding the term "regulated entity," and replacing the terms "facility" and "site" with "regulated entity" where appropriate; incorporate applicable statutory changes in HB 2129, 79th Legislature, 2005, by adding that MSS activities will not be considered unscheduled if the actual emissions do not exceed the estimates submitted in the notice by more than a reportable quantity (RQ); incorporateapplicable statutory changesinHB 2129, 

### 79th Legislature,2005, 

### by allowing owners/operators to report emissions events by regulated entity, on one report per common cause; introduce the concepts of unplanned and planned MSS activities. It also limits the affirmative defense to non-excessive upset events (rather than for all emissions events), unplannedMSS activities(ratherthan scheduledMSSactivities), excessopacityeventsdue to an upset (rather than all excess opacity events), and opacity events resulting from unplanned MSS activities (rather than from scheduled MSS activities); revise affirmative defense demonstration criteria by requiring all possible steps be taken to minimize air quality impacts, and, for opacity, that the opacity was causedby a sudden

### Commissioners Page 3 November 22, 2005 Re: Docket No. 2005-0792-RUL
unavoidable breakdown of equipment or process, beyond the control of the ownerloperator; provide an affirmative defense for emissionsor opacity events from MSS activities. The affirmative defense will be phased out for planned activities for various groups of industries over several years, based on the applicable listed Standard Industrial Classification(SIC) Code; require certain regulated entitiesto submit an annual report to the commissiondetailing emissionsfromall emissions eventsand scheduledMSS activities. Thiswill inclbdemajor sources statewideand minor sources in nonattainment, maintenance, early action compact areas, and Nueces and San Patricio Counties; add the RQ for oxides of nitrogen of 200 pounds 

### in nonattainment, maintenance, early action compact areas, and in Nueces and San Patricio Counties, and 5,000 for all other areas of the state; add language in $101.201that allows regulated entities to report the best known cause at the time of the notification; addlanguage in $101.201 that allowsreporting without speciationofair contaminants that have an 

### RQ greater than or equal to 100 pounds and the amount released is less than ten pounds 

### in a 24-hour period; and additionof languagein $101.222(b)and (c) that statesthe failure ofthe owneroroperator of a facilityto report information that does not impair the commission's ability to review the event will not result in enforcement action and loss of opportunity to claim the affirmative defense. Changes required by federal rule: The changes are not directly requiredby federal rule, however, the changesarenecessary because the rules expires on June 30,2005. Changesto the rules and the associated SIPmustbe approved by EPA. In addition, the concept of planned MSS is introduced to ensure that an affirmative defense meets EPA guidance. Changes required by state statute: HB 2129, 79th Legislature, 2005, requires changes, as noted in the first three bullets of the "Project Scope" section previously mentioned. Staffrecommendations that are not expressly required by federal rule or state statute: Require certain regulated entities to submit an annual report to the commissiondetailing emissionsfrom all emissions events and scheduledMSS activities. This includes major sources statewideandminor sourcesin nonattainment,maintenance, early actioncompact areas, and Nueces and San Patricio Counties.

### Coininissioners Page 4 

### November 22, 2005 Re: Docket No. 2005-0792-RUL 

### Impact on the regulated community: Who will be affected? Any person who violatesemissionsand opacity limitationsassociatedwith emissions events and MSS activities.


### Does it create a group of affected persons who were not affected previously? How? Yes, minor sources in nonattainment, maintenance, early action compact areas, and Nueces and San Patricio Counties. 

### Willtherebe a fiscalimpact? Ifso, estimate. Minor impactto the regulated community. This impactwill be in the form oflimitedextra workhours to compiledatathat is alreadykept in-house forminor sources in nonattainrnent, maintenance, early action compactareas, and Nueces and San Patricio Counties. 

### Impact on the public: Who will be affected? The public will have access to annual reports of all emissions events. 

### Does 

### it create a group of affected persons who were not affected previously? How? No. 

### Will there be a fiscal impact? If so, estimate. NIA 

### Impact on agency programs: Air Permits Division and OfficeofCompliance andEnforcement. Commission enforcementpolicy issues such as the enforcement initiation criteria andpenaltypolicies are affectedby this rulemaking. The Field Operations Division's standard operating procedures regarding investigationswill also be affected. In addition, air quality permitting policy regarding authorizationof emissions from planned MSS activities is affected; this is being addressed in a rulemaking concurrently presented for proposal. 

### Stakeholdermeetings: Have any stakeholder meetings been held? Yes. Three stakeholder meetings were held to solicit comments on the rulemaking. The meetings were held in Austin, Houston, and Midland. Four subsequentmeetings were held to discuss the commentsreceived froin the first round. The meetings were held in Austin, Houston, Corpus Christi, and Midland. 

### With whom? The regulated community and interested citizens. 

### What were the general sentiments? The regulated community was concerned about losing the affirmative defense forminor reporting omissions,the amountofreporting required for recordable events, and how the rule requirements treated metropolitan areas the same as rural areas. The

### Commissioners Page 5 November 22, 2005 Re: Docket No. 2005-0792-RUL
interested citizens wanted to ensure the local air agencies with jurisdiction were included in reports,defineboilersand combustionturbines, ensurethe affirmative defense doesnotadversely affect the agency's ability to protect and maintain air quality, does not affect citizens' or EPA's right to enforce the Clean Air Act, and otherwise meets the requirements of EPA's guidance, exclude excess emissions fromplanned MSS activities emissions from affirmative defense, and clarify that affirmative defense does not apply to exceedences of New Source Performance Standardsand National Emission Standards for Hazardous Air Pollutants. 

### Were any changes made 

### in response to stakeholder concerns? Yes. The additionof 

### RQ for oxides of nitrogen of 200 pounds in nonattainment maintenance, early action compact areas, and in Nueces and SanPatricioCounties, and 5,000 for all other areas of the state. Also added was language in $101.201that allows regulated entitiesto report the best known cause at the time of the notification. In addition, language was added to $101.201 that allows reporting without speciationof aircontaminantsthathave anRQgreaterthan or equal to 100pounds and the amount released is less than ten pounds in a 24-hour period. 

### Policy issues: Whatpolicy issuesareaffected? Commission enforcementpolicy issuessuch asthe enforcement initiation criteria and penalty policies are affected by this rulemaking. The Field Operations Division's standard operating procedures regarding investigations will also be affected. In addition, air quality permitting policy regarding authorization of emissions from planned MSS activities is affected; this is being addressedin arulemaking concurrently presentedfor proposal. 

### Are any policies that are not currentlybased on rule being made into a rule? No. 

### What are the consequences if this rulemaking is not approved to go forward? If this rulemaking does not go forward, the commission will be unable to fully address comments receivedin two rounds of stakeholder meetings. In addition,the commission recently adopted an extension of the June 30, 2005, expiration of $5101.221 - 101.223. The expiration date was extended to January 15, 2006, unless the commission submits a revised package for EPA consideration, which would extend the expiration date to June 30, 2006. 

### Are there alternatives? There are no alternatives other than rulemaking if expiration of the current rule is to be avoided. 

### Potentially controversialmatters:
HB 

### 2129 amended THSC, 5382.0215 to allow emissions events stemming from a common cause to be provided in a single report by a regulated entity. The bill did not amend THSC, $382.0216, which requires the commission to make excessive determinations for emissions events on a facility by facility basis. Industry commented that the commission missed the intent of HB 2129, and that the revisions to THSC, $382.0215implythatthe determinationsby the commissionshouldbebased onthe emissionsfrom the regulated entity, and not from each facility involved in the event. Industry generally prefers to report the total emissions from the regulated entity and not to identify specific facilities. Staff suggests that the

### Coininissioners Page 6 

### November 22, 2005 Re: Docket No. 2005-0792-RUL statutory requirements for reporting and for making excessive determinations can be met by allowing owner/operators to report total emissions from each emission point, and to include the identification of each facility involved. Thisprocedure was included in the provisions of the rulemaking. Based upon the comments received, it appears that this may be an acceptable compromise. Industry expressed concerns that making initial reports of emissions events and scheduled activities available to the public causes a competitive disadvantage. Modificationsfor electronic reporting through STEERS are planned that will alleviate this concern for planned activities, but emissions event notifications will continue to be inade readily available. Industry doesnot supportthe requirement for annual reports tothe commissiondetailing emissions froin all emissions events and scheduled MSS activities. Comments are that much of this information is currently provided to the coinmission. This includes major sources statewide and minor sourcesinnonattainment, maintenance, early actioncompactareas, andNueces andSan PatricioCounties. The rules eliminate the opportunity for an affirmative defense for certain planned MSS activities on a schedule that is based on the SIC code of the regulated entity. Finally, the rules proposed that the RQ for oxides of nitrogen be established at 5,000 pounds in a 24-hour period for areas of Texas that are not nonattainment, maintenance areas, early action compact areas, and outside of Nueces and San Patricio Counties. 

### Key points in adoption rulemaking schedule: 

### TexasRegister proposal publication date: July 15, 2005 

### Anticipated effective date: January 5, 2006
• 

### Six-month 

### TexasRegister filing deadline: January 15,2006 

### Public comment: Public commentwasreceived during public hearingsconducted in the citiesofAustin, Arlington, Houston, Corpus Christi, and Midland. The comment period ended August 8, 2005. Written comrneilts were received from 548 individuals, 20 industries or industry groups, three governmental entities, and representatives for nine environmentalgroups. Commentswere also received from State Representative Scott Hochberg. Concerns fromthe industrial sectors wereforthe scheduled eliminationof an affirmative defenseforplanned maintenance activities, streamlining the reportingprocess, and limiting the amount of information required in reports and records. Comments from environmental groups centeredon concerns for reducing the reporting requirements, for increasing reportable quantities, the need for increased enforcement, immediate accessto emissions events reports, andchangesto thedemonstration criteriamade to meet EPA guidance. Thereporting process was further streamlinedwith modificationsto requirethattotalemissionsbe reported from each emissions point, rather than from each facility. Theproposed amendmentto increasethe default RQ for contaminants that do not have a listed RQ from 100pounds in a 24-hour period to 5,000pounds was deleted. The concepts for planned and unplanned MSS were incorporatedand staff also revised some of the affirmative defense criteria.

### Commissioners Page 7 November 22, 2005 Re: Docket No. 2005-0792-RUL 

### Significant changes from proposal: The reporting process was further streamlinedwith modifications to require that total emissions shall be reported fromeach emissionspoint, rather than fromeach facility. The proposed amendmentto increase the defaultRQ for contaminants that donot have a listed RQ from 100 pounds in a 24-hourperiod to 5,000 pounds was deleted. The concepts for planned and unplanned MSS were incorporated and staff also revised some of the affirmative defense criteria. 

### Agency contacts: Ramiro Garcia, Jr., Rule Project Manager, Field Operations Division, 239-4481 Janis Hudson, StaffAttorney, 239-0466 Patricia Dur6n, Texas Register Coordinator, GeneralLaw Division, 239-6087 Attachments

cc: Chief Clerk, 

### 5 copies Executive Director's Office David C. Schanbacher, P.E. Jason Skaggs Ashley 

### K. Wadick Brent Wade Office of General Counsel Ramiro Garcia, Jr. Patricia Dur6n

### Commissioners Page 8 

### November 22, 2005 Re: Docket No. 2005-0792-RUL

cc (without attachments): Janis Hudson, StaffAttorney Debra Barber, OCE Program Liaison Jim Reed, Field Operations Division Program Liaison Booker Harrison, Senior Attorney, Environmental 

### Law Division Russ Kiinble, Regulation Development Liaison

### EVALUATION OF TESTIMONY

The Texas Commission on Environmental Quality (TCEQ or commission) adopts amendments to 99101.1, 101201, 101.21 1, and 101.221 

### - 101.223. Sections 101.1, 101.201, 101.21 1, 101.221, and 101.222 are adopted with changes to the proposed text as published inthe July15, 2005,


### . issue of the Texas Register (30TexReg4090). Section 101.223 

### is adopted without change tothe proposed text and will not be republished.

These amendmentsare beingadopted as revisions to the Texas state implementation plan (SIP)that will be submitted tothe United States Environmental ProtectionAgency (EPA).

BACKGROUND AND SUMMARY 

### OF THE FACTUAL BASIS FOR THE ADOPTED RULES The rules concerningemissions events and maintenance, startup, and shutdown activities were required by House Bill (HB)2912, 95.01 and 518.14, 77th Legislature, 2001 and HB2129, 91, 79th Legislature, 2005. Rules implementing HB291 2 were adopted in 2002. Chapter 101, Subchapter F, Division 3 was amended in December 2003, and one of the amendments was inclusion of an expiration date ofJune30, 2005, for 95101.221 

### - 101.223, inanticipation that these rules might require further consideration and revisions. In a subsequent rulemakingeffective june 23, 2005, the commission extended the expiration date ofjune 30, 2005, to January 15, 2006, unlessthe commission submitted a revised version of 59101.221 

### - 101.223 tothe EPA for review and approval intothe SIP. Upon submittal of the revisions to the EPA, these sections would expire
onjune 30, 2006. This rulemakingaction removes the expiration clause; modifies and adds definitions and revisesthe notification and reporting requirements for emissions events and scheduled maintenance, startup, and shutdown activities; adds the concepts of unplanned and planned maintenance, startup, and shutdown activities; and provides for an affirmative defense forcertain emissions from planned maintenance, startup, and shutdown activities, which would be phased out according to a prescribed permit application schedule, and replaced by enforcement discretion until there is final action on the permit. The adopted rulemakingwould also incorporate applicable statutory changes in HB 2129, 51, 79th Legislature, 2005, including adoptingthe definition of "Regulated entity" to incorporate statutory requirements of HB 2129.
In development of this adopted rulemaking, the commission sought comment from stakeholders at meetings held between March 4, 2005, and April 1, 2005. Numerous oral comments were received at seven stakeholder meetings and written comments were acceptedthrough April 6, 2005. All comments were considered and evaluated by commission staff. These adopted revisions implement many of the concepts from the comments received. Some comments are best able to be addressed through operational changes and currently many of these changes are underway. For example, the commission 

### iscurrently modifyingthe electronic reporting system to implement several changes including allowingfor a single incident report for emissions events covering multiple facilities. Other revisionswere suggested that are beyond the scope of the commission's authority and have not been adopted.

The commission's Annual Enforcement Report, which can be found at http://www.tceq.state.tx.us/compliance/enforcement~reports/AER~annenfreport.htmI,includes information about trends in excess emissions from both emissions events and maintenance, startup, and shutdown activities. Significant reductions in reported emissions have been observed over the past three fiscal years (FYs), for example, in the Amarillo, Beaumont, Corpus Christi, Houston, and Midland Regions. Between FY 2003 and FY 2005, the total quantities of reported emissions were reduced by 94% in the Amarillo Region, 68% inthe Midland Region, 62% in the Beaumont Region, 76% in the Houston Region, and 39% in the Corpus Christi Region. This data indicatesthat these rules have resulted in the reduction of unauthorizedemissions. In addition to implementing legislation, these rules are adopted to provide additional incentive for further reductions by phasingout the affirmative defense for certain emissions.

SECTION BY SECTION DISCUSSION GeneralAdministrative Rule Language Changes The commission adopts changingthe word "which" to "that" and the word "shall" to "must" in
numerous locations in the rule languageto conform to the drafting standard in the Texas Legislative Council Drafting Manual, November 2004.

The commission adopts spelling out acronyms the first time they are used ina section and deleting acronyms that are used only once in a section. The commission also adopts replacingthe words "site" or "facility" with "regulated entity" in numerous sectionsto comply with 

### HB 2129. Additionally, some text 

### is revisedto recognizethat emissions events would now be contained within one report instead of a reportfor each facility.

SUBCHAPTER A, DEFlNlTlONS The adopted amendmentto 5101 .I, concerning Definitions, adds the definitions of "Agency establishedfacility identification number," "Boiler," "Combustionturbines," "Excess opacity event," "Regulated entity," and "Unplanned maintenance, startup, or shutdown activity." The definition of "Agency established facility identification number" 

### isto be used only for purposes of Chapter 101, Subchapter F. An agency established facility identification number isa unique alphanumeric code requiredto be assigned by the owner or operator of a regulated entity that is required to report an emission inventory, and 

### is applicable to each facility at that regulated entity. The definition of "Boiler" in 

### 30TAC Chapter 11

### 7 

### is duplicated in these general definitions since the term 

### is used inmultiple state air regulations. The definition of "Stationary gas turbine" 

### isalso duplicated inthe general definitions and renamed in Chapter 101 as "Combustion turbine" since the term 

### isalso used in multiple state air regulations. theterm "Excess opacity event" 

### isadoptedto be defined so that it 

### is clear what 

### is meant by an excess opacity event. Adopted 5101

### .I (86)defines "Regulated entity" as all regulated units, facilities, equipment, structures, or sources at one street address or location that are owned or operated by the same person. The term includes any property under common ownership or control identified in a permit or used in conjunction with the regulated activity at the same street address or location. Owners or operators of pipelines, gathering lines, and flow lines under common ownership or control in a particular county may be treated as a single regulated entity for purposes of assessment and regulation. These changes were required by 

### HB 

### 2129. The commission adopts the new definition of unplanned maintenance, startup, or shutdown activity in 5101.1(1

### 09). Activities with unauthorized emissions that are expected to exceed a reportable quantity 

### (RQ) or with excess opacity would be one of two types. The first type of unplanned maintenance, startup, or shutdown activity 

### isa startup or shutdown activity that 

### is not part of normal or routinefacility operations, 

### is unpredictable as to timing, and 

### is not the type of event normally authorized by permit. The second type of unplanned activity is a maintenance activity that arises from sudden and unforeseeable events beyond the control of the operator that requires immediate corrective action to minimize or avoid an upset or malfunction. This 

### is consistent with EPA guidance, which provides that scheduled maintenance 

### is a predictable event, that can be scheduled at the discretion of the operator, and can be coordinated with maintenance and, therefore, can be permitted. Examplesof activities that would be considered to be planned would include plantturnarounds, scheduled plant outages, and preventative maintenancesuch as routine replacement of facility parts that are regular and quantifiable. Planned activities are the type that can be authorized by a permit, standard permit, or permit by rule. Evidence ofpredictability could includewhether procedures and/or personnel assignments existwell in advance of the event.
Adopted 5101.1(25), renumbered as 5101.1 (28),amends the definition of "Emissions event" to clarify that any upset event or unscheduled maintenance, startup, or shutdown activity from a
common cause 

### is considered one event. In addition, the unauthorized emissions from the event
can also result from one or multiple emission points at a regulated entity.
Adopted 5101.1(68), renumberedas 5101.1(72), amends the definition of "Non-reportable emissions event" to no longer simply state that non-reportableemissions events are those that are not reportable emissions events, but to more clearly define them as any emissions event in a 24- hour periodthat does not result in an unauthorized emission equal to or in excess of an RQ.
Adopted 5101.1(83), renumbered as 5101.1(88), amends the definition of "Reportable emissions event" to clarify it 

### isany emissions event that in any 24-hour period, results in an unauthorized emissionfrom any emissions point equalto or in excess of the RQ as defined in this section.

There are several revisions adoptedto the definition of "Reportable quantity (RQ)" in 5101.1 (84), renumbered as 5101.1(89). First, as specified in 5101.1(89)(A),when determining if a compound 

### is listed in either 40 Code of Federal Regulation (CFR) Part 302, 5302.4 or 40 CFR Part 355, Appendix A, the owner or operator must use either the listed compound name or the Chemical Abstracts Service (CAS) number, whichever 

### is more specific. Although this concept is already widely being followed, specific rule language is needed because some compounds can have multiple names. The compound name used by the owner or operator might not be the exact compound name listed in the two tables, butthe CAS number should be the same.The Texas specific list of compounds found in 9101.1 (89)(A)(i)(lII) has been revised so that the compounds are now listed in alphabetic order. In addition, 

### §101.1(89)(A)(i)(lll)(-ff-), would provide for an RQ for "oxides of nitrogen." The new RQ for oxides of nitrogen combines all of the oxides of nitrogen, including nitrogen oxide and nitrogen dioxide. The RQ 

### is 200 pounds in ozone nonattainment areas, ozone maintenance areas, ozone early action compact areas, Nueces County, and San Patricio County. Nueces and San Patricio Counties are included because design value for that area 

### is close to exceeding the national ambient air quality standard (NAAQS) for ozone. The 200-pound figure 

### is based upon adding the current RQs for nitrogen oxide and nitrogen dioxide together. For all other areas of the state, where ozone levels are not approachingthe ozone NAAQS, the RQ 

### is 5,000 pounds.

The commission 

### is also adopting establishment of a statewide specific RQ of 5,000 pounds for certain compounds, all of which are either chlorofluorocarbons (CFC), hydrofluorocarbons (HFC),
or hydrochlorofluorocarbons (HCFC) in items (-q-)

### - I-ss-). The compounds are neither criteria pollutants nor precursors of ozone, and thereforethe 100-pound default for the nonattainment,
near nonattainment, maintenance, and early action compact areas should not apply. The following compo~~nds have been added since proposal: pentachlorofluoroethane (CFC-111); 1,1,2,2- 

### tetrachlorodifluoroethane (CFC-112); 1,1 ,I ,2-tetrachlorodifluoroethane (CFC-112a); 1,1,1 -trichloro2,2,2- trilfloroethane (CFC-113a); 1,1,- 

### dichlorotetrafluoroethane (CFC-114a); 1 -chloro-1,1,2,2 tetrafluoroethane (HCFC-124a); and 1,1,1,2,3,3,3-heptafluoropropane (HFC-227ea). All of these compounds are either a CFC, HCFC, or an HFC.
In adopted §101.1(89)(A)(ii), the proposed revisionto establish a default RQ of 5,000 pounds for air contaminantswhen there is not a listed RQ and the regulated entity is not located withinnonattainmentareas, near-nonattainmentareas, maintenance areas, and early action compact areas was not adopted, and the default RQ remains at 100 pounds.
In adopted 5101.1 (89)(B)(iv), the RQ for natural gas 

### is revised, such that it 

### is clear that carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen are excluded from the composition of the natural gas when determining ifan RQ has been exceeded.

In adopted 5101.1(89)(C),the proposed language concerningopacity only reportingfor boilers and combustionturbines that are fueled by gaseous fuels other than natural gas (are allowed to report only opacity), provided that the fuel being burned does not contain hazardousair pollutants or highly reactive volatile organic compounds at more than 0.02°/~by weight, was notadopted. The commission added language notingthat the terms "boilers" and "combustion turbines" are now defined in 5101.1(6) and (14).

The adopted amendmentto 5101.1(86), renumberedas §101.1(91), clarifies that the emissions from a scheduled maintenance, startup, or shutdown activity will be considered as part of the activity ifthey do not exceed the estimates in the notification by more than an RQ. The term "facility" 

### is replaced with "regulated entity." These changeswere required by HB 2129. Additionally, the phrase "whether performing or otherwise affected bythe activity," was added to clarify that ifthe actions of another regulatedentity actions caused a regulated entity the needto conduct a maintenance, startup, or shutdown activity, then that activity would be considered part of this definition.The commission adopts the amendment to 5101.1(87)that deletes the definition of "Site" in order to incorporate the definition of "Regulated entity" to comply with applicable statutory provisions of 

### HI3 2129.

The commission also adopts the amendment to 

### 5 101.1(105), renumbered as 

### 5 101.1(11 O), the definition of "Upset event." The amendment replacesthe phrase "or unanticipated occurrence" with "and unavoidable breakdown." This clarifies that upset events are those that are beyondthe control of the operator. A sentence has been added to the definition of "Upset event" due to changes inthe structure of 5101.222(b). Section 101.222(b) previously covered emissions events, but will now only cover upset events. This change 

### is important to make clear that a certain set of events that begin as maintenance, startup, or shutdown events are still covered by 

## 5 101.222(b). These events are instances where a maintenance, startup, shutdown or activity 

### is reported prior to its beginning and the emissions are estimated, but the emissions exceed the estimate by more than
an RQ due to an upset condition. these types of events have historically been covered by 5101.222(b) and this change ensures that they are'still covered under this subsection. This change tailors the events that are ofthe type that will meet EPA's criteria for an affirmative defense. EPA allows an affirmative defense for malfunctions that are sudden, unavoidable, and unpredictable in nature. Essentially, an affirmative defense 

### is allowed for true emergency-type upset events, which
are determined on a case-by-case basis. An example might be a release from a pressure relief valve due to an unplanned and unpredicted pressure surge ina pipeline carrying natural gas or liquids or unanticipatedand unpredicted damage or breaks to a pipeline facility. The remaining definitions in 5101 .I are renumbered accordingly.
Subchapter 

### F: Emissions Events andScheduled Maintenance, Startup, andShutdown Activities Division I : Emissions EventsSection 707.207 

### - Emissions Event Reporting and Recordkeeping Requirements The commission adopts the requirements for reporting to local air pollution control agencies with jurisdiction to 5101.201(a)(l)(B) to clarify that localair pollution agencies should receive initial notifications and final reports.

The commission adopts the amendment to 5101.201(a)(2)to clarify that owners and operators of regulated entities, except for boilers or combustion turbines, are requiredto reportemissions events for each emissions point with unauthorized emissions that exceed an RQ. The revised definition of "Emissions event" could cause confusion about whether emissions from each facility involved in a reportable emissions event should be included inthe notification and report.

Referencesto "notification," "initial notification," and "24-hour notification" have been revisedto read "initial 24-hour notification" in 5101.201 (a)(2)and (2)(H), (3), and (4), (c), (e), and (g).

The commission adopts the amendment to 5101.201 (a)(2)(B) and (3)(B)to provide new language that requires identification ofthe commission Regulated Entity Number (RN)of the regulated entity experiencing an emissions event. Ifthe regulated entity does not have an RN, then the air account number will be identified. Now that the commission has changedto a Central Registry system, the air account number 

### is no longer the primary identifier ofthe regulated entity. The RN 

### is necessary to report incidents via the agency's electronic reportingsystem. Ifthe regulated entity does not have an RN or air account number, the location of a release and acontact telephone number in notifications and final .reports must be reported. Accordingly, 5101.201 (a)(2)(C) and (3)(C)

### is deleted, since this information is required by 5101201(b)(l)(C) for final reports and is sufficient information regarding location. Subsequent subparagraphs are relettered accordingly in 

### 5 101201(a)(2)and (3).The commission adoptsthe deletion of the word "event" in §101.201 (a)(2)(E) to ensure that the duration of the actual emissions 

### is reported.

The commission adopts the deletion ofthe language requiringthe reportingof authorized emissions limits and ifapplicable, the estimated opacity and the authorized opacity limit in 5101.201(a)(2)(H),relettered as subparagraph 

### (G).

The commission adopts the addition of the term "best known" and "at the time of the notification" to existing 5101.201 (a)(2)(1),relettered as subparagraph (H),and to existing §101.201 (a)(3)(D), relettered as subparagraph 

### (C). This revision clarifies that the cause of the emissions event 

### is based
on best available information at the time of the notification.

The commission adopts the amendment to 5101.201 (a)(3)to clarify that owners and operators of boilers and combustion turbines are required to report emissions events for each emissions point with emissions that exceed an 

### RQ. The revised definition of "Emissions event" could cause confusion about whether emissions from each facility involved in a reportable emissions event should be included in the notification and report.

The commission adopts the amendment to §101.201(a)(3)(E),relettered as.subparagraph(D), to
remove the requirement to report the facility identification numbers or emission point numbers.

The commission adopts the deletion of the "event" in 5'101.201(a)(3)(F) to ensure that the duration of the actual emissions 

### is reported.The commission adopts the amendment to 5101.201 (a)(3)(1) to delete the provision to report the authorized opacity limit inthe initial notification. Opacity 

### is not an emission, and therefore not necessaryfor evaluation of impacts. The subsequent subparagraphs of 5101.201(a)(3)are relettered accordingly.

The commission deletes 5101.201(a)(4),movingthe language to 5101.201

## (0. Section 101.201(a)(5) 

### is renumbered as 5101.201 (a)(4).

The commission adopts the amendment to 5101.201 (b)to delete the phrase, "such records shall identify."

The commission adopts the amendment to 5101.201(b)to separate subsection (b) intotwo paragraphs, subsection (b)(l)and (2). The commission adopts the amendment to 5101.201(b)(l)to outline the provisions required infinal records of reportable emissions events. The existing paragraphs in 5101.201 (b)are relettered as subparagraphs (A)

### - (L).

The commission adopts the amendment to 5101.201 (b)(l)(B)and (2)(B)to provide new language that requires identification of the commission RN of the regulated entity experiencingan emissions event. Ifthe regulatedentity does not have an RN, then the air account number will be identified. Nowthat the commission has changedto a Central Registry system, the air account number 

### is no longer the primary identifier of the regulated entity. the RN 

### is necessaryto report incidents via the agency's electronic reporting system. Ifthe regulated entity does not have an RN or air account number, the location of a releaseand a contact telephone number in prior notifications and final reports must be reported.The commission adopts the deletion of the word "event" in 5101.201(b)(l)(F)to ensure that the duration of the actual emissions 

### is reported.

'The commission adopts the amendment to 510120'1 (b)(7), renumbered as subsection (b)(l)(G),to require the reporting of air contaminants by emissions point, rather than by facility. This was in response to comments that emissions should be reported and evaluated intotal from the entire event, as opposed to reporting the emissions contributed by each facility experiencingthe emissions event. However, it 

### is necessary that the commission evaluate the potential excessive impact by facility to meet the statutory requirement.
Adopted 5101.201 (b)(7), renumbered as subsection (b)(l)(G),provides languagethat requiresthe reporting ofair contaminants from all emissions points involved inthe emissions event, and allows reporting of air contaminants in the final report that have an 

### RQ greater than or equal to 100 pounds andthe amount released 

### is less than ten pounds in a 24-hour period without speciation, instead these compounds or mixtures of air contaminants may be identified together as "other." This provision addresses concerns expressed at the stakeholder meetingsthat it is difficult and unnecessaryto speciate and report very small quantities of chemicals involved in a reportable event.
Adopted 

### 5101.201 (b)(8), renumbered as subsection (b)(l)(H),

### isamendedto eliminate reportingof the authorized opacity limitand opacity estimate inthe final report. The commission adopts a clarification that estimates of emissions for final records must be based on good engineering practice and methods to provide reasonably accurate representations for emissions and opacity. Language has also been added to allow the compounds or mixtures of air contaminants listed as "other" under 5101.201(b)(l)(G) to be treated as a group for estimating emissions. The reportshould only include facilities that have unauthorizedemissions. The commission does not require information about facilities involved inthe event that do not have unauthorized emissions. The phrase "if any" has been addedto clarify that the preconstruction authorization and associated emissions limits 

### isapplicable only ifthose exist and are applicableto emissionsfrom that event. These must only be reported ifthose emissions were evaluated and included in the authorization. In addition, where the words "experienced," "incurred," or "involved" are used in 5101.201 and 5101.211 regarding reporting of facilities, the commission intends that only those facilities that have unauthorizedemissions must be included in the report.

The commission adopts the amendmentto 5101.201 (b)(1 O), renumberedas 5101.201(b)(l)(J), to add the terms "best known" and "at the time of the notification" to clarify that the cause of the emissions event 

### is based on best available information at the time of reporting.

The commission adopts 5101.201 (b)(2)to outline the provisions required in records of nonreportable emissionsevents. The commissionalso adopts the amendment to 5101.201 (b)(2)(A) 

### - (J) to provide separate provisions for required recordsfor non-reportableemissions events.

The adopted requirements in 5101.201 (b)(2)(A) 

### - (L) are the same as the language in 5101.201(b)(l)(A) 

### - (L).

The commission adopts 5101.201(b)(2)(D) to requirethe reporting of the common name ofthe process unit or area, the common name and the agency-establishedfacility identification number of the facilitiesthat experienced the emissions event, and the common name and the agencyestablished emission point numbers where the unauthorizedemissions were released to the atmosphere. Section 101.201(b)(2)(D) also providesthat owners and operators of those facilitiesand emission points for which the commission has not establishedfacility identification numbers or emission point numbers are not required to providethe facility identification numbers and emission point numbers inthe report, but are required to providethe common name inthe report.

The commission adopts the deletion of the word "event" in 5101.201 (b)(2)(F) to ensurethat the duration of the actual emissions is recorded.

The commission adopts 5101.201 (b)(2)(G) to require the reportingof air contaminantsfrom all emission points involved inthe emissions event that are known through common process knowledge or past engineering analysis, except for boilers or combustion turbines, and that were unauthorized. It allows reporting of air contaminants in the final report that have an RQ greater than or equal to 100 pounds and the amount released 

### is less than ten pounds in a 24-hour period without speciation, instead these compounds or mixtures of air contaminants may be identified together as "other." This provision is intended to address concerns expressed at the stakeholder meetings that it 

### is difficult and unnecessaryto speciate and report very small quantities of chemicals involved in a reportable event.
In adopted 5101.201 (b)(2)(H), the commission requires, for those compounds or mixtures described in 5101.201(b)(2)(G), the recording of the estimated total quantities and the authorized emissions limitsfor those compounds or mixtures, the preconstruction authorization number or rule citation of the standard permit, permit by rule (PBR), or rule governing the regulatedentity involved in the emissions event, authorized emissions limits for the facilities involved inthe emissions events, except for boilers and combustion turbines which record only the opacity limit and estimated opacity from the event. The report should only include facilities that have unauthorized emissions. The commission does not require information about facilities involved inthe eventthat do not have unauthorizedemissions. The phrase "if any" has been added to clarify that the preconstruction authorization and associated emissions limits 

### is applicable only ifthose exist and are applicable to emissions from that event. These must only be reported ifthose emissions were evaluated and included in the authorization. In addition, where the words "experienced," "incurred," or "involved" are used in 5101.201 and 5101.21 1 regarding reporting of facilities, the commission intendsthat only those facilities which have unauthorized emissions must be included inthe report. The commission deleted the requirement that when estimating total quantities and the authorized emissions limits, the methods of estimates for facilities with authorizations should be consistentwith the methods used in the applicable permit application, rule, or order of the commission, and that for all other situations, good engineering practiceshould be utilized. The commission adopts a clarification that estimates of emissions for records of nonreportableemissions events must be based on good engineering practice and methods to provide reasonably accurate representationsfor emissions and opacity.
Adopted 5101.201 (b)(2)(H)allows for the compounds or mixtures of air contaminants listed as "other" under 5101.201 (b)(2)(G) to betreated as a group for estimatingemissions.

The commission adopts 5101.201 (b)(2)(1) to requirethe recordingof the best known cause ofthe emissions event at the time of recording.

The commission adopts 5101.201(bI(2)U)to require the recording of the best known cause ofthe emissions event at the time of recording.

The commission adopts 5101.201(b)(2)(K) to require the recording of the actions taken, or being taken, to correct the emissions event and minimize emissions.The commission adopts 5101.201 (b)(2)(L) to require the recordingof any additional information necessary to evaluate the emissions event.

The commission adopts the addition of the requirement to reportto local air pollution control agencies withjurisdiction to 5101.201(c)to clarify that local air pollution agencies should receive initial notifications and final reports.
In adopted §101.201 (d), the proposed languagethat allows for the use of gaseous fuels other than natural gas, provided the hazardous air pollutants or highly reactive volatile organic compound content of the fuel does not exceed 0.02°/~by weight, was not adopted.

The commission adopts the amendment to 5101.201(e)to delete duplicative languagethat 

### is now covered inthe definition of "Excess opacity event" in 5101 .l. thecommission adopts the amendment to add reportingto local air pollution control agencies with jurisdiction to §I01201(e)



### - (g)to clarify that local air pollution agencies should receive initial notifications and final reports.

The commission adopts the amendment to 5101.201(e)(2)to add the requirementto identify the commission RN of the regulated entity experiencing an excess opacity event. If the regulatedentity does not have an RN, then the air account number will be identified. Nowthat the commission has changed to a Central Registry system, the air account number 

### is no longer the primary identifier of the regulated entity. The RN is necessaryto report incidentsvia the agency's electronic reporting system. Ifthe regulated entity does not have an RN or air account number, the location of a release and a contact telephone number in notifications and final reports must be reported.The commissionadopts the amendment to §101.201(e)(8) to changethe term "source" to "facilities" to make this reporting requirement consistentwith other uses of the term "facility" inthe rule as well as the changes of the term "facility" to "regulated entity."

The commissionadopts the amendmentto §101.201(e)(9)to add the term "best known" and "at the time ofthe notification" to clarify that the cause of the excess opacity event 

### is based on the best known information at the time of the notification.

The commission adopts the amendment to §101.201(f) to add language requiring the submittal of a technical analysis of emissions events tothe appropriate local air pollution agencies with jurisdiction. In addition, the commission added the requirement, previously in 5101.201 (a)(4),that the owner or operator of a regulated entity experiencing an emissions event must provide, in writing, additional or more detailed information regardingthe emissionsevent when requested by the executive director or any air pollution control agency with jurisdiction, within the time established in the request.

The commission received inputfrom regulated entities that input ofthe 24-hour report into the commission's Web server has caused many personnel and operational problems. To address this concern, the commission has added languageto 5101.201(g)to allow submittal byfacsimile, or electronic mail to meet the 24-hour requirementas longas the same information 

### is input intothe commission's Web server within 48 hours of discovery of the event. 'This is not meant to be an opportunity to modify information in the report as the first submittal must meet the 24-hour reporting requirements on its own.The citation for the definition of "small business" in 5101.201(g) and (h)(3)is corrected to refer to Texas Water Code, 55.135(g)(2).

The commission adopts the amendment to delete the existing language in 5101201(h) and add languageto require annual emissions event reporting by March 31 of each calendar year or as directed by the executive director. the reporting requirement would begin in 2007to allow for a full year of recordsfollowing adoption of this rule. This report 

### is required for owners or operators that are subject to reporting under 5101

## .lo, Emissions Inventory Requirements, and owners and operators that are not subject to repotting under 5101.10 and are located in nonattainment, maintenance, early action compact areas, Nueces County, and San Patricio County, that experience at least one emissions event duringthe calendar year. For those entities that already submit an emission inventory report, this information would be included inthat report. For entities that do not submit an emission inventory report, this report must be submitted electronically except that small businesses may submit by other viable means. Adopted 5101.201(h)(l)specifies that the report must include the total number of reportable and the total number of non-reportable emissions events experienced at the regulated entity. Adopted 5101.201(h)(2)specifies that the report must include estimated total quantities for all compounds or mixtures of air contaminants, by compound or mixture that were emitted, except for compounds or mixtures that have an RQ greater than or equal to 100 pounds and the amount released 

### is less than one pound in a 24-hour period. The commission added the requirements to report the quantities of emissions based on good engineering practice and methods to provide reasonably accurate representations for emissions. Adopted 5101.201 (h)(2)does not apply to boilers and combustion turbines referenced inthe definition of RQ in 5101 .l, that must report only the estimated opacities during emissions events and duration of unauthorized opacity.Division 2: Maintenance, Startup, andShutdown Activities Section 707.27 7 

### - Scheduled Maintenance, Startup, andShutdown Reporting andRecordkeeping Requirements.

The commission adopts the amendment to 5101.21 1(a)to clarify that actual emissionsfrom maintenance, startup, or shutdown activities that exceed the estimated emissions inthe initial notification by more than an RQ are either upsets or unplanned startup, shutdown, or maintenance activities. This change 

### is required by HB2129. The factor determining whether the event becomes an emissions event or an unplanned startup, shutdown, or maintenance activity will be the cause ofthe exceedance. Ifthe unanticipated emissions resultfrom a sudden breakdown of equipmentthat occurs duringthe scheduled activity the event would be treated as an upset. However, if duringa siheduled maintenance activity additional maintenance 

### is required that results inthe unanticipated emissions, and that maintenance was unforseeable and requires immediate corrective action to avoid a malfunction, then the event would betreated as an unplanned maintenance activity. thisdistinction 

### is made to reflect the changes to 5101222, which provide a different list of demonstration criteria for upsets and for unplanned maintenance, startup, and shutdown activity.

The commission adopts the amendment to 5101.21 1(a)to add "by emissions point" to clarify the RQ applies to each emissions point and to ensure consistencywith the requirements for emissions events.

The commission adopts the amendment to 5101.211(a)to add "with jurisdiction" to clarify that local air pollution agencies should receive initial notifications and final reports.The commission adopts the amendment to §101.211 (a)to add a referenceto §I01.l, where excess opacity isdefined, and accordingly deletes the referenceto 5101.201 (e)for excess opacity.

The commission adopts 

### 3101.21 1(a)to clarify that for facilities with emissions authorizations, the determination for reportingof emissions must be based on good engineering practice and methods to provide reasonably accurate representationsfor emissions and opacity.

-the commission adopts the amendment to §101.211 (a)(l )(B)and (2)(B)and (b)(l)(B) and (2)(B)to add language that requiresthe identificationof the commission RN of the regulated entity experiencingthe activity. If the regulated entity does not have an RN, then the air account number will be identified. Ifthe regulated entity does not have an RN or air account number, the location of a release and a contact telephone number in prior notifications and final reports must be reported.

'the commission adopts the amendment to §101.211 (a)(l)(E) to require the reporting of the expected duration of any maintenance activity. The commission also adopts the amendment to 01.21 1(a)(l)(G) to clarify that the duration of the emissions from the scheduled maintenance, startup, and shutdown activity must be reported.

The commission adopts the amendment to §101.211 (a)(l)(F) to denote that these scheduled maintenance, startup, and shutdown activities are not emissions events, but are emissions activities.

The commission adopts the amendment to §101.211(a)(l)(H)to provide languagethat requires the reporting of air contaminants by all emissions points involved inthe activity, and to allow the reporting of compounds or mixtures of air contaminants inthe final reportthat have an RQ greaterthan or equal to 100 pounds and the amount released 

### is less than ten pounds in a 24-hour period without speciation, insteadthese compounds or mixtures of air contaminants may be identified together as "other."

The commission adopts the amendmentto S101.211(a)(l)(l) and existing language in subsection (b)(9), renumberedas subsection (b)(l)(l), to add language requiringthe reporting of the quantities of emissions by utilizinggood engineering practiceand methodsto provide reasonably accurate representationsfor emissions and opacity. Language has also been added to allow for the compounds or mixtures of air contaminants listedas "other" under S101.211(a)(l)(H) to betreated
as a group for estimatingemissions. The report should only include facilities that have unauthorized emissions. thecommissiondoes not require information about facilities involved in the activity that do not have unauthorized emissions. The phrase "if any" has been added to clarify that the preconstruction authorization and associated emissions limits 

### is applicable only ifthose exist and are applicable to emissionsfrom that activity. These must only be reported ifthose emissions were evaluated and included inthe authorization. In addition, where the words "experienced," "incurred," or "involved" are used in S101.201 and S101.211 regarding reporting of facilities, the commission intendsthat only those facilitiesthat have unauthorized emissions must be included inthe report.

The commission adopts the amendmentto S101.211(a)(2)(F) to requirethe reporting of the expected duration of any maintenanceactivity. The commission also adopts the amendmentto S101.211(a)(2)(G) to clarify that the duration of the emissionsfrom the scheduled maintenance, startup, and shutdown activity must be reported.The commission adopts the amendment to 5101.21 1(a)(2)(H) to specify that the estimated opacity and the authorized opacity limit must be reported for those emissions points for which unauthorized opacity is expected.

The commission adopts the amendment to 5101.21 1(b)to separate subsection (b) into two paragraphs, paragraphs (1)and (2). The commission adopts 5101.211(b)(l)to outline provisions regardingfinal records for regulated entities that are required to notify of scheduled maintenance, startup, or shutdown activities. The existing paragraphs in 5101.211(b) are relettered as subparagraphs (A)

### - (K).
Adopted 5101.21 1(b)(2), renumbered as subsection (b)(l)(B), 

### isamended to provide language that requires identification of the commission 

### RN of the regulatedentity experiencingthe activity. If the regulated entity does not have an 

### RN or air account number, the location of a release and a contact telephone number in notifications and final reports must be reported.
Adopted 5101.21 1(b)(5),relettered as subsection (b)(l 

### HE), is amended to add "experienced the emissions activity" and accordingly delete "experienced the emissions event" to denote that the associated scheduled maintenance, startup, and shutdown activities are not emissions events, but
are emissions activities.
Adopted 5101.21 1(b)(6),renumbered as subsection (b)(l)(F),

### is amended to require the reporting of the expected duration of any maintenanceactivity. The commission also adopts the amendment to 5101.21 1(b)(7),renumbered as subsection (b)(l)(G), to clarify that the duration of the emissions from the scheduled maintenance, startup, and shutdown activity must be reported.Adopted 5101.21 1(b)(8),renumbered as subsection (b)(l)(H), 

### isamended to provide languagethat requires the reportingof air contaminants involved inthe emissions activity, and to allow for the reporting of air contaminants inthe final reportthat have an 

### RQ greater than or equal to 100 pounds and the amount released 

### is less than ten pounds in a 24-hour period without speciation, insteadthese compounds or mixtures of air contaminants may be identifiedtogether as "other."

The commission adopts the amendment to 5101.21 1(b)(9),reletteredas subsection (b)(l)(l), to delete the referenceto existing paragraph (8)and to referto the relettered subparagraph (H). Also, the commission adopts the requirementthat good engineeringpractice and methods must be used to provide reasonably accurate representationsfor emissions and opacity. Language has also been added to allow the compounds or mixturesof air contaminants listedas "other" under 5101.21 1(b)(8) to be treated as a group for estimatingemissions. The report should only include facilitiesthat have unauthorized emissions. The commission does not require information about facilities involved in the activity that do not have unauthorizedemissions. The phrase "if any" has been added to clarify that the preconstruction authorization and associated emissions limits 

### is applicable only ifthose exist and are applicable to emissions from that activity. These must only be reported ifthose emissions were evaluated and included in the authorization. In addition, where the words "experienced," "incurred," or "involved" are used in 5101201 and 5101.211 regarding reporting of facilities, the commission intends that only those facilities that have unauthorized emissions must be included inthe report.

The commission adopts 5101.21 l(b)(2)to outline the provisions required in recordsof nonreportableemissions events. The commission also adopts 5101.21 1(b)(2)(A) 

### - (I) to add provisions regardingfinal recordsfor facilities that were not required to notify of scheduled maintenance,startup, or shutdown activities. The adopted requirements in 5101.21 1(b)(2)(A) 

### - (I) are the same as the requirements in 

## 5 101.211(b)(l)(A) - (I).
Adopted 

### 5 101.2 1 1(b)(2)(F) 

### is amendedto require the reportingof the expectedduration of any maintenance activity. The commission also adopts the amendment to 5101.21 1(b)(2)(G) to clarify that the duration of the emissions from the scheduled maintenance, startup, and shutdown activity must be recorded.

The commission adopts 5101.21 1(b)(2)(H) to require the recordingof the compound descriptive type of the individually listed compounds or mixtures of air contaminants, in the definition of RQ in 5101 .I, that are known through common process knowledge, past engineering analysis, except for boilers or combustion turbines referenced in the definition of RQ in 5101 .l, and that were unauthorized. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period may be reported without speciation, instead these compounds or mixtures of air contaminants may be identified together as "other."

In adopted 5101.21 1(b)(2)(1), the commission added the requirements to record the quantities of emissions determined utilizinggood engineering practice and methodsto provide reasonably accurate representations for emissions and opacity, the commission adopts the amendment to 5101.21 1(b)(2)(1) to add languageto allow for the compounds or mixtures of air contaminants listed
as "other" under 5101.21 1(b)(2)(H) to be treated as a group for estimating emissions.The commission adopts the amendmentto add languageto 5101.21 1(c)to require that reporting for scheduled maintenance, startup, or shutdown activities must also be reportedto the appropriate local air pollution agencies with jurisdiction.
In adopted 5101.21 1(d), the proposed languageallowing boilers and combustion turbines equippedwith a continuous emission monitoringsystem usingfuels with less than 0.02°/~ hazardous air pollutants or highly reactive volatile organic compounds, are exempt from creating and submittingfinal records ifthe'information inthe initial notification isthe same as inthe final report, was not adopted.

The commission adopts the amendmentto 5101.21 1(e)to require that a copy of the requested technical plan for a scheduled maintenance, startup, or shutdown activity be sent to the local air pollution agency with jurisdiction.

The commission adopts the amendmentto 5101.211

### (f)to require annual reporting of emissions resulting from scheduled maintenance, startup, and shutdown activities by regulated entity. The reporting requirementwould begin in 2007to allow for a full year of records following adoption of this rule. This report 

### is required for owners or operators that are subjectto reporting under 5101

## .lo, and owners and operators that are not subjectto reporting under 5101.10 and are located in nonattainment, maintenance, early action compact areas, Nueces County, and San Patricio County, that experience at least one scheduled maintenance, startup, or shutdown activity during the calendar year. For those entities that already submit an emission inventory report, this information would be included in that report. For entities that do not submit an emission inventory report, this report must be submitted electronically, except that small businesses may submit by other viable means. Adopted 5101.201 (h)(l)specifies that the report must includethe totalnumber of reportable and the total number of non-reportable emissions events experienced at the regulated entity. Adopted 5101.201(h)(2)specifies that the report must include estimated total quantities for all compounds or mixtures of air contaminants, by compound or mixturethat were emitted for each facility, except for compounds or mixtures that have an RQ greater than or equal to 100 pounds and the amount released 

### is less than one pound in a 24-hour period. The commission added requirements to report the quantities of emissions determined utilizinggood engineering practice and methods to provide reasonably accurate representationsfor emissions. Section 101.201(h)(2)does not apply to boilers and combustion turbines referenced in the definition of RQ in 5101 .l, that must report only the estimated opacities during emissions events and duration of unauthorized opacity. In addition, the citation for the definition of "small business" in 5101.2 1 1(f)(3)

### is corrected to refer to Texas Water Code, 55.135(g)(2).

Division 

### 3: Operational Requirements, Demonstrations, andActions to Reduce Excessive Emissions Section 

### 70

### 7.227 

### - Operational Requirements The adopted amendment to 5101.221 (d)adds the phrase "including New Source Performance Standards (40Code of Federal Regulations Part 60) and National Emission Standardsfor Hazardous Air Pollutants (40 Code of Federal Regulations Parts 61 and 63)" to specify particular federal requirements that also regulate emissions from maintenance, startup, and shutdown activities.

The commission adopted the amendment to 5101221 (e! to be a general reference to the demonstration criteria in §101.222 instead of listing each by subsection. This change was needed to reflect some ofthe changes in 5101.222.

-the commission adopted the deletion of 5101.221(g),which concerned expiration ofthe section.Section 10 1.222

## - Demonstrations The commission adopted several changes to 5101.222. The changes, in part, address comments made by EPA regarding approval of these rules as a revisionto the SIP. These changes meet EPA's guidance for when an affirmative defense or enforcement discretion can be used with regardto
excess emissions. Specifically, the changes reflectthe commission's incorporation of the new category of unplanned maintenance, startup, and shutdown activities, which 

### is newly defined in §101.1(109)with the existing unscheduled maintenance, startup, and shutdown activities, which 

### is defined inTexas Health and Safety Code (THSC), S382.0216. This distinction 

### is incorporated so that these rules meet EPA's criteria for an affirmative defense. Under state law, maintenance, startup, and shutdown activities are not unscheduled ifthe emissions are not at least an 

### RQ of unauthorizedemissions, and the activity 

### is reported or recorded, as provided in 5101.201 and 5101.21 1. This statutory definition does not limit these activitiestothose that are sudden, unavoidable, and unpredictable. In other words, scheduled maintenance, startup, and shutdown activities are determined only with regardto reporting requirements, and not as to whether they are those that could be planned. EPA guidance describes scheduled maintenanceas a predictable event that can be scheduled at the discretion of the operator, and that can be made to coincide with maintenance on production equipment. EPA views startup and shutdown of process equipment as part of the normal operation of a source that should be accounted for inthe design and implementation of the operating procedure for process and control equipment. Therefore, EPA's view of the applicability of an affirmative defense of what types of maintenance, startup, and shutdown activities 

### is narrowly tailored to apply only to those excess emissions that could not have been preventedthrough careful planningand design, and when bypassingcontrol equipment 

### is unavoidableto prevent loss of life, personal injury, or severe property damage.Therefore, these distinctions as to categories of maintenance, startup, and shutdown activities are implemented by the new definition of "Unplanned maintenance, startup, or shutdown activity" and the revision to the definition of "Upset event," as well as changes in 5101.222(b) 

### - (e)and (h). First, 5101.222(b) provides an affirmative defense for non-excessive upset events, rather than all emissions events. This allows for scheduled maintenance, startup, and shutdown activities that are not unplanned maintenance, startup, and shutdown activities to have an affirmative defense ifthe demonstration criteria are proven. Similarly, 5101.222(c) 

### is revised to provide an affirmative defense for unplanned maintenance, startup, and shutdown activities, rather than for scheduled maintenance, startup, and shutdown activities. Because the commission 

### is distinguishing between scheduled and planned activities, maintenance activities have been retained in 5101.222(c), rather than be deleted as was proposed. Similar changes were made for excess opacity in §101.222(d) and (e). In addition, 5101.222(h) provides a phased-out affirmative defense for planned maintenance, startup, and shutdown activities, rather than for only scheduled maintenance. Due to the need for the distinction previously discussed, the commission 

### is distinguishing between scheduled and planned activities, by adding startup and shutdown activities to 5101.222(h), rather than be omitted as originally proposed.

EPA's limitations on use of an affirmative defense are addressed by these changes as well as the changes in §101.222(h), and in the addition of subsections 

### (i) and 

### (j). Those subsections address the phase-out of an affirmative defense with specific permit application deadlines, and the subsequent use of the commission's enforcement discreti.on until final action on the application. Section 101.222(h) - 

### (j)also requires the executive director to process the permit applications as provided for in 30 TAC 51 16.1 14. These changes regarding applicability of the affirmative defense do not affect the reporting requirements in 5101201and 5101.21 1. In addition, as part of the revisions to the State of Texas Environmental Electronic Reporting System (STEERS), discussed laterinthis preamble, the commission 

### isadding aquestion to the reporting requirementsthat will allow the reporterto answer "yes" or "no" as to whether the regulated entity assertsthe reportedevent or activity meets the applicable affirmativedefense criteria.
Adopted §101.222(b) 

### is revised to designate that this subsection concerns non-excessive upset events, rather than non-excessiveemissionsevents. A sentence has been addedtothe definition of "Upset event" due to changes inthe structure of §101.222(b). Section 101.222(b)had previously covered all emission events, butwill now only cover upset events. Upset events are, by definition,
a subset of emissions events. Due to this change, itwas important to make clear that a certain set of events that are initially reported as maintenance, startup, or shutdown activitiesare still covered by §101.222(b). These events are instances where a maintenance, startup, or shutdown activity 

### is reported priorto the beginning of activity and the emissions are estimated, butthe emissions exceed the estimatedamount by morethan an 

### RQ due to an upset-typecondition. These types of events have historically been covered by 5101.222(b) and this change 

### is meant to ensurethat they
are still covered underthat subsection.

The commission adopted the amendmentto §101.222(b)(1)to clarify when the commission will initiate enforcement for failure to report and for the underlying emissions event itself. The amendment also provides that subsection (b) does not apply for minor omissions or inaccuracies that do not impair the commission's ability to review the event accordingto this rule, unlessthe
owner or operator knowingly or intentionallyfalsified the information inthe report. Upon adoption, the commission deleted the words "of a facilityr1 to clarify that these reports are not on a facility by facility basis.The adopted amendment to 5101.222(b)(2) adds the term "unavoidable" for consistency with EPA's affirmative defense criteria. this criteria was also added to 5101.222(d)(2).

The adopted amendment to 5101.222(b)(3)does not include the proposed reasonableness standard for determining this criteria. The amendment revisesthe criteria to add that the unauthorized emissions did not stem from any activity or event that could have not only been foreseen and avoided, but also planned for. The adopted amendment also changes the criteria of "could not have been avoided by good design, operation, and maintenance practices" to "could not have been avoided by better operation and maintenance practices or by technically feasible design consistent with good engineering practice."
Adopted §101.222(b)(5)is amended to add the requirement that any necessary repairs must be made as expeditiously as practicable. Section 101.222(b)(6)

### is amended to add the requirement that all possible steps are taken to minimizethe impact of the unauthorized emissions on ambient air quality.

The adopted amendment to 5101.222(c) changes the applicability of this subsection from scheduled startup and shutdown activities to unplanned maintenance, startup, and shutdown activities. The amendment also deletes languagethat provides that emissionsfrom scheduled maintenance, startup, and shutdown activities are required to be included in certain permits unless the owner or operator proves the criteria in subsection (c)(l)

### - (9). The adopted language provides that an affirmative defense isavailable for all claims in enforcement actions for these emissions, other than claims for administrative technical orders and actions for injunctive relief, ifthe owner or operator proves that the emissions were from an unplanned activity and also proves the criteria listed in subsection (c)(l)

### - (9). As required by 5101.222(f), the affirmative defense applies only tothe emissions from these activities, and does not apply to subsequent or independent obligations, such as recordkeeping or reporting.
Adopted 9101.222(~)(1), 

### (d)(l), and (e)(l)

### is amended by adding languagethat provides that failure to report information that does not impair the commission's ability to review the activity or event, such as minor omissions or inaccuracies,will not result in enforcement action and loss of opportunity to claim the affirmative defense unlessthe owner or operator knowingly or intentionallyfalsified the information in the report. Section 101.222(~)(1) and (e)(l)require that for scheduled maintenance, startup, and shutdown activities, the owner or operator must demonstrate compliance with 9101.21 1. Additionally, 9101.222(~)(1) and (e)(l)has been modifiedto reflect the fact that unscheduled maintenance, startup, and shutdown activities are now covered under subsections (c) and (e) instead of subsections (b) and (e). By definition, maintenance, startup, or shutdown emissionsthat are not reported prior totheir occurrence are considered unscheduled, and therefore are emissions events. Therefore, because these are a type of unplanned maintenance, startup, and shutdown activities, the appropriate criteria for an affirmative defense are those in 9101.222(c), rather than those in 9101.222(b). Unscheduled maintenance, startup, and shutdown activities must be reported as emissions events as required by 9101.201. Inaddition, if the owner or operator wants toassert an affirmative defense, the owner or operator must demonstrate not only that the notification requirements of 9101.201 were complied with, but also that reporting required under 9101.21 1(a)was not reasonably possible, as well as the remaining criteria in 9101.222(~)(2) 

### - (9).

The commission adopted the amendmentto 9101.222(~)(2), 

### (3),(4), (6), and (8)that replaces "any scheduled maintenance, startup, or shutdown activity" with "any unplanned maintenance, startup, or shutdown activity" to ensure consistencywith the new applicability of subsection (c).The commission adopted the amendment to 5101.222(~)(6) that adds the requirement that all possible steps were taken to minimizethe impact of the unauthorized emissions on ambient air quality.

The commission amended the applicability of adopted 5101.222(d) to excess opacity events as those due to an upset, ratherthan applyingto all excess opacity events. 'The commission also adopted 

### 5 101.222(d)(2), which adds a demonstration criteria that requires that the opacity was caused by a sudden, unavoidable breakdown of equipment of process beyond the control of the
owner or operator.

The adopted amendment to 5101.222(d)(2), renumbered as subsection (d)(3), does not include the proposed reasonableness standardfor determiningthis criteria. theamendment revisesthe criteria to add that the unauthorized emissions did not stem from any activity or event that could have not only been foreseen and avoided, but also planned for. The adopted amendment also changes the criteria of "could not have been avoided by good design, operation, and maintenance practices" to "could not have been avoided by better operation and maintenance practices or by technically feasible design consistentwith good engineering practice."

Section 101.222(d)(4), renumbered as subsection (d)(5), is amended to add the requirement that any necessary repairs be made as expeditiously as practicable. Section 101.222(d)(5), renumbered
as subsection (d)(6), 

### isamended to add the requirement that all possible steps are taken to minimize the impact of the unauthorized emissions on ambient air quality. The remaining paragraphs in subsection (d)are relettered accordingly.The adopted amendment to 5101.222(e) changes the applicability of this subsection from opacity events resultingfrom scheduled startup, and shutdown activities to opacity events resultingfrom unplanned maintenance, startup, and shutdown activities. The adopted amendment to 5101.222(e) also deletes the languagethat provides that emissionsfrom scheduled maintenance, startup, and shutdown activitiesare requiredto meet the requirementsof 5111 .l 11(a), unless the owner or operator provesthe criteria in subsection (e)(l)

### - (9). The adopted language providesthat an affirmativedefense 

### isavailable for all claims in enforcement actions for certain emissions, other than claims for administrative technical orders and actions for injunctive relief, ifthe owner or operator proves that the excess opacity resultedfrom an unplanned maintenance, startup, or shutdown activity and also proves the criteria listed in subsection (e)(l) 

### - (9). As required by 5101.222(f), the affirmative defense applies only to the emissionsfrom these activities, and does not apply to subsequent or independentobligations, such as recordkeeping or reporting. The adopted amendmentto 

### 5 101.222(e) also removes referencesto maintenance emissions, which 

### is addressed in 5101.222(h).

The adopted amendmentto 5101.222(f) providesthat 5101.222(b) 

### - (e) and (h)does not remove any obligations to comply with any other existing permit, rule, or order provisionsthat are applicableto an emissions event or a maintenance, startup, or shutdown activity. To comply with EPA policy, subsection 

### (f) is also amendedto provide that the affirmative defense 

### isavailable only for emissions that are reported or recorded. Those entities that are not required by 5101.201 and 5101.21 1to record or report unauthorized emissions may voluntarily comply with the recording requirements of those sections to ensure the availability ofthe affirmativedefense.The adopted amendment to §101.222(h) revises the applicability of this subsection to maintenance, startup, and shutdown activities that are not unplanned. As previously discussed in this preamble, the commission 

### is adopting a definition of unplanned maintenance, startup, and shutdown activity.

The commission intendsto begin allowingauthorization of emissionsfrom these types of activities according tothe schedule in §101.222(h)(l)(A) 

### - (F). This new schedule, which provides for a seven-year application period depending on the type of facility, replacesthe proposed schedule which had provided the affirmative defense be phased out as permits come in for renewal, amendment, or issuance, or intwo years for facilities authorized through other mechanisms such as PBRs, standard permits, standard exemptions, and special exemptions. For facilities in major group Standard Industrial Classification (SIC) code 28 (Chemicalsand Allied Products), except SIC code 2895, the affirmative defense will expire intwo years from the deadline for filing an application. For all other facilities, the affirmative defense will expire one year from the deadline for filingan application. The affirmative defense will continue to apply to all claims inenforcement actions broughtfor these activities, other than claims for administrative technical orders and actions for injunctive relief, for which the owner or operator proves all of the criteria in §101.222(~)(1) 

### - (9). Opacity events resulting from maintenance activities are also included in §101.222(h) and will be treated in the same way as emissions from planned maintenance, startup, and shutdown activities, subject to meeting the criteria in §101.222(e)(1) 

### - (9). Chapter 101 does not authorize emissions, and therefore the permittingschedule does not authorize emissions from planned maintenance, startup, and shutdown emissions. However, concurrent with this adoption, the commission 

### is proposing rules regarding a variety of options to address concerns about obtaining authorization for historically excess emissions.Specifically, the schedule for phase out of the affirmativedefense in subsection 

### (i)istied to the schedule for submitting applications. The application submittal schedule 

### isa tiered schedule, tied tocertain SIC codes. thefirst deadline, one year after the effective date of this section, 

### isfor facilities in SIC code 2911 (Petroleum Refining). The second deadline, two years after the effective date of this section, 

### isfor facilities in major group SIC code 28 (Chemicals and Allied Products), except SIC code 2895. The deadline for facilities in SIC code 2895 (Carbon Black), 

### isfour years afterthe effectivedate of this section. The deadline for facilities in SIC code 491 1 (Electric Services), 

### isfive years after the effective date of this section. The next deadline for facilities in SIC codes 1311 (Crude Petroleum and Natural Gas), 1321 (Natural Gas Liquids), 4612 (Crude Petroleum Pipelines), 4613 (Refined Petroleum Pipelines), 4922 (NaturalGas Transmission), and 4923 (NaturalGas Transmission and Distribution), 

### issix years after the effective date of this section. For all other facilities, the deadline for filing an application 

### isseven years after the effective date of this section.

In addition, adopted 5101.222(h)(2)requires, that in addition to meetingthe application deadline, the owner or operator must provide prompt responsesto the executive director's requests for information regardingan application filed accordingto the schedule in subsection (h)(l)(A) 

### - (F).
Finally, the adopted amendment to 5101'.222(h) deletes the current language providing an expiration date for the section.

The commission adopts 5101.222(i)to provide the schedulefor the phase out of the affirmative defense in 5101.222(h). Itwill expire upon the earlier of one year after the application deadlines in subsection (h)(l )(A)and (C)

## - (F), or the issuance or denial of a permit applied for under subsection (h)(l)(A) and (C)

### - (F), or voidance of an applicationfiled under subsection (h)(l)(A) and (C)

### - (F).The affirmative defense in subsection (h)will expire upon the earlier of twoyears after the application deadline in subsection (h)(l)(B) or the issuanceor denial of a permit applied for under subsection (h)(l)(B),or voidance of an application filed under subsection (h)(l)(B). If the permit application remains pendingafter the affirmative defense expires, the commission will use enforcement discretion for all claims in enforcement actions brought for excess emissions from planned maintenance, startup, or shutdown activities, other than claims for administrative technical orders and actions for injunctive relief for which the owner or operator proves the criteria in the applicable 5101.222(c) and (e), until the issuanceor denial of a permit applied for under subsection (h)(l),or voidance of an application filed under subsection (h)(l).

The commission adopts 5101.222(j), which provides that the executive director shall process permit applications referenced in subsection (h) in accordance with the schedule set out in 51 1 6.1 14, Application Review Schedule.

Section 107.223 

### - Actions to Reduce Excessive Emissions The adopted amendment to 5101.223(a)(1)adds the requirement to submit a corrective action plan to the local air pollution agency with jurisdiction to clarify that local air pollution agencies should receive the corrective action plan.

The commission adopted the deletion of §101.223(e), which concerned expiration of the section.

FINAL REGULATORY IMPACTANALYSIS 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 rulemakingdoes not meet the definition of a "major environmental rule." -the adopted rulemakingdoes not meetany of the four applicability requirements listed in Texas GovernmentCode, §2001.0225(a). A "major environmental rule" means a rule, the specific intent of which, 

### isto protect the environment
or reduce risks to human health from environmental exposure, and that may adversely affect in a materialway 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 adopted amendments revise the notification and reporting requirements and demonstration criteria for emissions events and scheduled maintenance, startup, and shutdown activities. The adopted rulemakingadds the concepts of unplanned and planned maintenance, startup, and shutdown activities. The adopted rulemakingalso provides for an affirmative defense for certain emissions from upset events and unplanned maintenance, startup, and shutdown activities, includingexcess opacity associated with upset events and unplanned maintenance, startup, and shutdown activities. The adopted rulemaking also revises some of the demonstration criteria for qualifying for an affirmative defense. The adopted rulemaking provides that the affirmative defense for planned maintenance, startup, and shutdown activitieswould be phased out accordingto a prescribed permit application schedule, and replaced by enforcement discretion until there 

### isfinal action on the permit. The adopted rulemaking modifiesand adds definitions, and also implements 

### HB 2129, 51. The adopted amendmentswill not adversely affect, in a materialway, 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.
In addition, Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which 

### isto: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirementof state law, unless the rule 

### is specifically required by federal law; 3) exceed a requirementof a delegation agreement or contract betweenthe state and an agency or representative of the federal government to implement a state and federalprogram; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. 'the adopted amendments do not exceed a standard set by federal law or exceed an express requirement of state law. There is no contract or delegation agreement that covers the topic that 

### isthe subject ofthis rulemaking. Finally, this rulemaking was not developed solely under the general powers of the commission, but 

### is authorized by specific sections of the THSC and Texas Water Codethat are cited inthe STATUTORY AU'THORITY section of this preamble. Therefore, this rulemaking 

### is not subject to the regulatory analysis provisions of Texas Government Code, 52001.0225(b), becausethe adopted amendments do not meet any ofthe four applicability requirements.

The commission did not receive any public comment regardingthe draft regulatory impact analysis determination duringthe public comment period.

TAKINGS IMPACTASSESSMENT The commission completed atakings impact analysis for the adopted amendments. The specific purpose of this rulemaking 

### isto revise the notification and reporting requirements and demonstration criteria for emissions events and scheduled maintenance, startup, and shutdown activities; add the concepts of unplanned and planned maintenance, startup, and shutdown activities; and provide for an affirmative defensefor certain emissions from upset events and unplanned maintenance, startup, and shutdown activities, includingexcess opacity associatedwith upset events and unplanned maintenance, startup, and shutdown activities. The adopted rulemaking also revises some of the demonstration criteria for qualifying for an affirmative defense. -the adopted rulemaking providesthat the affirmative defense for planned maintenance, startup, and shutdown activities would be phased out accordingto a prescribed permit application schedule, and replaced by enforcement discretion until there 

### isfinal action on the permit. The

### adopted rulemaking modifies and adds definitions, and also implements HB 2129, 51. Promulgation and enforcementof the adoptedamendments would be neither a statutory nor a constitutional taking because they do not affect private real property. Specifically, the adopted amendments do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist inthe absence of a governmental action. Therefore, the adopted amendments do not constitute atakings under Texas GovernmentCode, Chapter 2007.

CONSISTENCYWITH THE COASTAL MANAGEMENT PROGRAM The commissiondetermined that this rulemaking action relatesto an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, 5533.201 et seq.),and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistencywith the CMP. As required by 5281.45(a)(3)and 31 TAC 5505.1 1(b)(2), relatingto Actions and Rules Subjectto the Coastal Management Program, commission rules governing air pollutant emissions must be consistentwith the applicable goals and policiesof the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordancewith the rules of the Coastal Coordination Council, and determined that the action 

### is consistentwith the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is

### the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31TAC 5501.12(1)). No
new sources of air contaminants will be authorized and the amendments will maintainthe same level of emissions control as the existing rules. The CMP policy applicable to this rulemaking action is

### the policy that commission rules comply with federal regulations in CFR, to protect and enhance air quality inthe coastal areas (31TAC §501.14(q)). This rulemaking action complieswith 40 CFR Part 51, Requirementsfor Preparation, Adoption, and Submittal of Implementation Plans.Therefore, in accordance with 31 TAC 5505.22(e), the commission affirms that this ruiemaking action 

### is consistentwith CMP goals and policies.

EFFECT ONSITES SUBJECTTO 'THE FEDERAL OPERATING PERMITS PROGRAM Sections 101.201 

### - 101.223 are applicable requirements under 30 TAC Chapter 122, Federal Operating Permits Program. Uponthe effectivedate of this rulemaking, owners or operators subjectto the Federal Operating Permit Program will be required to certify compliance with amended 55101.201 

### - 101.223.

PUBLIC COMMENT Public hearings for this rulemaking were held August 2, 2005, in Austin; August 3, 2005, in Arlington, August 4, 2005, in Houston; August 5, 2005, in Corpus Christi; and August 8, 2005, in Midland. The comment period ended August 8, 2005. Written comments were received from 548 individuals, State RepresentativeScott Hochberg, Arkema, The Association of Electric Companies of Texas, Inc. (AECT), Baker Botts L.L.P., on behalf ofthe Texas lndustry Project (TIP), Baker Petrolite Corporation (BPC), BASF FlNA Petrochemicals (BASF), Calpine Corporation (Calpine), Devon Energy Corp. (Devon), Dow Chemical Corporation (Dow), Duke Energy Field Services (Duke), DuPont Fluoroproducts (DuPont), Environmental Integrity Project (EIP), on behalf of Galveston-Houston Association for Smog Prevention (GHASP), Community In-Power and Development Association (CIDA), Public Citizen's Texas Office, Citizens for Environmental Justice (CEJ), Texas Public Interest Research Group, Blue Skies Alliance (BSA), ExxonMobil Downstream and Chemical (ExxonMobil Downstream), ExxonMobil Production, Harris County Public Health & Environmental Services (HCPHES), lndustry Professionalsfor Clean Air (IPCA), Kinder Morgan Energy Partners (Kinder Morgan), the Lower Colorado River Authority (LCRA), Mothers for Clean Air (MCA), Occidental Permian LTD (Occidental), Public Citizen, Pure Resources (Pure), SierraClub

### - Lone Star Chapter (Sierra Lone Star), Sierra Club

## - Houston Region (Sierra Houston), Texas Chemical Council (TCC),Texas Oil and Gas Association (TxOGA),Texas Pipeline Association (TPA), TOTAL Petrochemicals USA, Inc. (TOTAL), and EPA. Oral comments were presented by the National Refinery Reform Campaign (NRRC), CEJ,Texas Public Citizen, Seed Coalition (SEED), ClDA (Hilton Kelly), ClDA (Tashika Miles), Sierra Lone Star, BSA, Sierra Houston Club, GHASP, MCA, and two individuals. 546 individuals submitted letters that stated the commission should require that routine predictableemissions be subject to permitting, no routine or predictable emissions should qualify for an exemption or defense to penalties, and all excess emissions should be promptly reported.
BASF, Dow, Duke, Kinder Morgan, ExxonMobil Production, and Arkema endorsed the comments submitted by TIP. Arkema and ExxonMobil Downstream endorsedthe comments submitted by TCC. Devon, Duke, Kinder Morgan, and ExxonMobil Productionendorsed the comments submitted by TxOGA. Dukeand Kinder Morgan endorsed the comments submitted by the TPA.

MCA commentedthat itsupports the commission's efforts to reduce excess emissions resulting from malfunctions (or upsets), maintenance, startups, and shutdowns, however, more significant changes must be made to the rules for them to result in the improvementof Houston's air quality necessaryto meet federal standards to protect human health.

RESPONSE The commission appreciatesthe support. However, these rules only address the actions based
on receivingreports of unauthorizedemissions stemming from emissions events and maintenance, startup, and shutdown activities. Although these rules have provisions for requiring corrective action plans, authorizations,and other measures, the improvement andprotection of air quality 

### isattained through a number of measures, including permitting, SIPS, monitoring, and compliance investigations.



### GENERAL COMMENTS TIP, TCC, ExxonMobil Downstream, and EIP commented that they appreciatethe commission's efforts to improve episodic emissions reporting requirements, but recommend improvements. TxOGA asked the commission to withdraw this rulemaking and republish in a manner that will allow the commission to fully address the issues surrounding emission events and scheduled maintenance, startup, and shutdown activities. TxOGA urged the commission to reissuethe proposed rulesto carry outthe letter and intent of 

### HB 2129

RESPONSE The commission appreciatesthe support, and specific suggestions are addressed later inthis preamble. The commission declines towithdraw this rulemaking. The commission 

### iscommitted totimely submittingthe rules to EPA as a revision to the SIP so that there 

### is no gap inthe opportunity to claim an affirmative defense for certain unauthorized emissions. Two sets of stakeholder meetings were held throughout the state priorto the commission's proposed rules were published for comment. Those concerns are addressed by these rules and operational changes which implement the rules. Inaddition, concurrent with this adoption, the commission is proposing rules regardinga variety of options toaddress concerns about obtaining authorization for historically excess emissions.
,Dukeapplauds the commission for the proposed changes that are consistentwith the spirit of 

### HB 2129, commentingthat these changes focus on the environmental benefits instead of reporting format.

### RESPONSE The commission appreciatesthe support.

EIP commented that the commission should ensurethat these rules meet

### all Federal Clean Air Act (FCAA), EPA, and legislative requirements, and that they provide an effective framework for reducingexcess emissions to the maximum extent possible.



### RESPONSE These rules providean incentivefor owners and operators to seek authorization for a significant portion of emissionsthat are currently unauthorized, allowing for the orderly transition of planned maintenance, startup, and shutdown emissionsfrom a vast number of facilitiesto become authorized. The transition schedule will allow time for a meaningful reviewof permit applications. These rules meet the applicable legal requirementsand have been revisedto ensure approval by EPA as a revisionto the SIP.

EPA requestedthat the commission confirm that it interpretsall unauthorized emissions above allowable limitations in permits, rules, and orders a subjectto 

### 5122.145(2), regardingdeviation reporting for sources subjectto the commission's Federal Operating Permit Program.



### RESPONSE The commission agrees that owners and operators of facilities that are subject tothe Federal Operating Permit Programwith unauthorized emissionsare subject to deviation reporting.

EIP commented that regulation of excess emissions 

### is essential because a significant quantity of unpermittedair pollutants are released as a result of emissions events and scheduled maintenance,startup, and shutdown activity. Forty-three individuals requested that the commission abide bythe following basic principles when regulating upsets, specifically that all routine or predictable emissions should be subject to all permitting requirements; no routine or predictable emissions should qualify for an exemption from or defense to penalties; large or repeat emitters should automatically face enforcement action; and all excess emissions should be promptly reported. Several individuals voiced concerns regarding air pollution and adverse health effects and others urged the commission to hold regulated entities accountable for all emission episodes. These commenters also suggested that the proposed rules illegally allow emissions from so-called "upsets" to escape punishment. 

### MCA commented that the commission needs to provide a stronger incentive for companies to make significant reductions in predictable excess emissions.

RESPONSE These rules providean incentive for owners and operators to seek authorization for a significant portion of emissions that are currently unauthorized, allowing for the orderly transition of planned maintenance, startup, and shutdown emissions from a vast number of facilities to becomeauthorized. thetransition schedule will allowtime for a meaningful review of permit applications. The rules do not limitthe commission's authority to obtain corrective action and seek injunctive relief. Inaddition, the amendments do not change the determinations of excessive emissions under §101.222(a) or chronic excessive emissions events under §101.223. These rules will continueto holdthe owners and operators responsiblefor their unauthorized emissions and requirethem to come intocompliance. The rules apply to all owners and operators, regardless of size, and if they cannot prove the criteria in 5101.222, they remain subject to penalties, as well as to corrective action and injunctive relief. Sections 101.201(h) and 101.211(f) require additional reporting by certain owners or operators of facilities to submit annual emissions event and maintenance, startup, and shutdown activity emissions reportingtoensure more accountability for excess emissions. Nospecific changes were madeto the rules in response tothese comments.
BSA, Public Citizen, and Sierra Lone Star commentedthat some upsets go beyond the effects screening levels (ESLs), and therefore the ESLs should be enforceable standards so that the commission will take enforcement action against a facility emitting air contaminants at levels that harm public health.

RESPONSE This comment 

### is beyondthe scope of this rulemaking. However, as a general responsetothe comment, ESLs, while not enforceable standards, are used to establish permit limits that are enforceable standards. Ifan ambient level of a chemical exceeds its 

### ESL, it is highly likely that the permit limit for that chemical was also exceeded. Therefore, enforcement can be taken on that exceedanceof the permit limit once a full investigation has been completed. Nochanges
were made tothe rules in responsetothis comment.
BSA, Public Citizen, and Sierra Lone Star commented that modelingfor the SIP should include air contaminantsfrom emissions events and maintenance, startup, and shutdown activitie's, and this 

### is particularlytrue for modelingfor the Dallas-FortWorth (DFW) SIP. BSA also expressed concern regarding how permit limits, particularly those with 30-day rolling average limits, are included in the SIP modelingwhen a huge spike of ozone precursor emissions 

### is an upset, but 

### is not a permit violation.

RESPONSEPhotochemical modelingfor the Texas SIP revisions incorporates the reported emissions inventories that includeall authorized and unauthorizedemissions. Inaddition, hourly special inventories were developedfor the Houston-Calveston-Brazoria (HCB) and Beaumont-Port Arthur (BPA) SIP attainment modelingdemonstrations, providing hourly emissions quantifications and chemical speciationfor all deviations from normal operations, including emissions from emissions events and maintenance, startup, and shutdown activities. Additionally, the predecessor of the ComprehensiveCompliance Enforcement Database System (CCEDS) was queried for emissions events and added tothe hourly inventory if such emissions
were not already captured by the hourly special inventory. Future modeling

### isexpectedtotake advantage of the emissions events data from CCEDS {see Section 3.5.1.1, "Base Case Point Source Modeling lnventory Development" and Appendix D, "Point Source Modeling lnventory Development," of the HCB December 2004 SIP revision for additional information on the special inventories). Other special inventories may be preparedfor the Texas Air Quality Field Study IIthat 

### is currently taking place (Spring2005

# - October 2006.)

Because of the magnitude and nature of the industries inthe DFW area, emissionevents inthe DFW area are not expected to play a role inthe majority of high ozone events inthe area. However, emissions variability from major oxides of nitrogen sources undoubtedly play a role in determiningthe ozone concentrations seen across East Texas, including downwind areas of DFW. The 30-day rollingaverage permit limits are applied only to those sources that demonstrate a high level of variability intheir load or emissions. For those sources, instead of permittinga high hourly emission limit that the source can comply with under all circumstances, it 

### is preferablefor the sourceto comply with a permit ratethat 

### issubstantially lower when averaged over a 30-day rolling period. One way the commissionaddressed this variability 

### is through the use of the Acid Rain Program Database inSIP modeling. These data provide hourly
-46-emissions from all large electric generating units inTexas and elsewhere. Inaddition, the commission has recently undertakena study of variability in cement kiln emissions and expects to use the results of this study infuture modelingapplications. No changes were made to the rules in responseto this comment.

BSA stated that the commission's schedulingof the rulemaking hearing on a weekday morningwas at atime which 

### is not available for most citizensto attend. The commission should start incorporatingtime for citizen involvement because citizens have the biggest burdento make sure the law 

### is enforced, because the commission and EPA cannot do all ofthe enforcement.

RESPONSE With regard to this rule project, due to the schedule, time constraints, and availability and access to appropriatefacilities, the commission had limited opportunity to schedule hearings inthe evening. The commission strives to give all citizens of Texas appropriate prior notification and several opportunitiesto comment, including the ability to submit written comments.

EPA requested confirmation that the commission included all emissions from startup, shutdown, maintenance, and malfunction periods when determiningcompliance with emission limitations in SIP-approved permits, rules, and orders.

RESPONSE The commission responds that all emissions events and maintenance, startup, and shutdown activitiesare subject to review for determinations of compliance with all permits, rules, and orders.An individual commented that an inspection should be conducted after a plant isconstructed to make sure that it 

### is meeting its permit requirements.

RESPONSE The commission responds that in most situations compliance testing is required after startup following the issuance of a permit. Regulated entities are subject to periodic compliance investigationson an ongoing basis.



### EIP commented that recent regulatory and operational experience confirms that significant emission reductions are feasible when operators have the proper incentives to deploy the most effective control technology and operating procedures. California's tighter controls on flares and flaring already have resulted 

### in a 75% reduction inflare em~issions of volatile organic compounds. Similarly, the proceedings of the Episodic Emissions Reduction Initiative reflect discussions among federal and state regulators, and industry, on effective ways to control {i.e., predict, monitor, and reduce 

### - episodic emissions). To enforce these rules, the commission should require video monitoringof flares and data logging of other pertinent data to ensure that e~nissions events and smoking flares are beingaccurately reported.

RESPONSE The coinmission responds that the commenter's suggestion to require video monitoringand data loggingonflares 

### is beyond the scope of this rulemaking. Inaddition, there is currently no available video monitoring technology that would allow long-term continuous direct monitoring and quantification of emissionsfrom flares by any practical means. Therefore, direct determination of emissions from flares by video monitoring to verify the occurrence of excess emissions is not possible, and video indicating an increase inflare activity by itself does notnecessarily indicate that there are excess emissions or that an emission event has occurred. Also, the commission does not currently accept video monitoring as a method of demonstrating compliancewith the visible emission limitations for flares specified in40 CFR §60.18(c)(l). There are technical and practical issues associatedwith the suggested monitoringapproachthat call into question the feasibility and enforceability of implementingvideo monitoring requirementsfor flares. Nochanges were made to the rules in responseto this comment.

An individual commented that inputflow streams to gas plants should be continuously monitored to ensure that the streams do not exceed designed capacity. Vent streams to any vent stack should be monitored. These results should be reportedtothe commission, with deviations resulting in punitive action.

BSA commentedthat the commission simply isn't able to investigate enough, as demonstrated by the reduction in notices of violation that were issued from 

### 2000 to 

### 2004. There has been a decrease in both budget and staffing, therefore, it 

### is imperativethat records be available for the public to review. Sierra Lone Star commented that better field investigation and enforcement of
excess emissions that harm the public 

### is necessary in a number of regions. Public Citizen commented that there 

### is lack of enforcement for emissionsevents, and that the legislature's intent
was to get these emissions under control. ClDA supports more enforcement.

RESPONSE The commission acknowledges that increased review 

### is necessaryand has made adjustments to the investigation protocolto ensure a timely and consistent review of all emissions events. No changes were madeto the rules in response to this comment.BSA, Public Citizen, and Sierra Lone Star commented that the commission should fine companies that illegally pollute and ensure that penalties are substantial enough that violators are not profiting from pollution. Otherwise, the compliant companies are at a competitive disadvantage. The commission should levy mandatory fines so that enforcement penalties are easily calculated and collected and require supplemental environmental projects to directly benefit the communities affected bythe associated violations. CE] commented that companies are not fined for upsets, or, fines are so small that the companies benefitfrom polluting.

Several individuals commented that fines should be levied regardless of the reason emissions are released and all so called accidental releases should be investigatedthoroughly and action taken to keep itfrom reoccurring; with a second offense, fines should double or be great enough to clean upthe air either through emissions reduction or through controls and purification technology; the commission represents the safety of Texans and 

### is responsiblefor holding entities accountable for their actions/emissions; community service or other donation to society is appropriate to compensate for excess emissions; fines should be based on percentage of gross income; even inadvertent violations should have accountability; no industrial emissions should be allowedto poison the atmosphere; incidents should not go uninvestigated; unenforceable laws are worthless and provide no motivation to change ifthere 

### is no fear of penalty; economic teeth are needed to ensure monetary gains from evading regulations are offset; stricter, aggressive, and immediate controls are necessary; and the results are what counts.

RESPONSE Nochanges were made in responseto these comments. These comments are beyond the scope of this rulemakingbecause these rules do not generally address the enforcement procedures or penalties.BSA, PublicCitizen, and Sierra Lone Star Club commented that the legislatureshould allow cities and countiesthe right to sue the commission and companies if laws are not enforced.

RESPONSE The commission respondsthat these comments are beyond the scope of this rulemaking because the commission cannot adopt rules directing legislative action. No changes were made tothe rules in responseto this comment.

An individual expressed concern about the time ittakes to respondto a complaint. The commenter stated that by the time someone comes out, the wind has changed and the odor 

### is gone.

RESPONSE The commission responds that this comment 

### is beyond the scope of this rulemaking. Complaint investigation procedures are incommission protocols, ratherthan in rules. No changes were made tothe rules in response tothis comment.

An individual commentedthat he was told flaring 

### is not handled by the commission, but it should be becausewe do not know what kind of contaminantsare being put into the air.

RESPONSE The commission responds that emissionsfrom flares are regulated by the commission. For nonemergencyflares, authorization limits the type and amount of emissions allowed. For emergency only flares, a notificationand report of what was emitted is required. No changes were made to the rules in response tothis comment.MCA commented that the commission should make predictable, avoidable emissions in excess of permit limits more expensive in terms of fines and injunctive relief.

RESPONSE The commission 

### iscurrently seeking comments from stakeholders regardingfuture rulemaking for 

### 30TAC Chapter 75, Administrative Penalties, including six stakeholder meetings. More information may befound at http://www.tceq-state. tx.us/compliance/enforcement/stkholder/noticeadmpen. html.
BSA, Public Citizen, and Sierra Lone Star commented that the commission should increase monitoringat facilities' fence lines, including additional monitoringfor facilities that continually report excess emissions.

RESPONSE Ambient monitoring of air quality 

### is beyond the scope of this rulemaking. However, the commission conducts mobile monitoring of ambient air quality at facility fence lines and inother
areas in responseto excess emissions and for other reasons. The commission 

### isalso incorporating new monitoringtechnologies, such as infrared camera technology, to identify and
assess emissions.

IPCA commented that the commission can and should do more to encourage or require facility operatorsto reduce excess emissions by making it more expensive for refineries and petrochemical plants to not do all that they can to reduce harmful emissions released during upsets and scheduled maintenance, startup, and shutdown activities. IPCA cited rules adopted by the Bay Area Air Quality Management District (BAAQMD) that require review of flare operations to develop a flareminimization plan as examples of successful episodic emissions minimization efforts. SEED commented that the commission should tighten the startup and shutdown requirements. ClDA expressed concern regarding the amount of emissions from emissions events and scheduled maintenance, startup, and shutdown activities as compared to emissions from routine operations.

RESPONSE The commission may consider the recent BAAQMD Regulation 12 as a potential control measure infuture eight-hour ozone regionalcontrol strategy development; however, the application of flare requirementssimilar tothe BAAQMD rulesto Chapter 101, Subchapter 

### F is beyond the scope of this rulemaking. These Chapter 101 rules provide incentivesfor owners and operators toavoid excess emissions, without prescribing operational methods or controls that may be expensive. Also, application of the BAAQMDflare rules on a statewide basis via Chapter 101, Subchapter 

### F is impractical and would place an extreme burden on industry as well 

### as commission resources. Inaddition to this burden, the commission does not consider it necessary to apply the BAAQMD rules on a statewide basis. The BAAQMDflare rules only apply to a limited number of flares inCalifornia. The BAAQMD Environmental Impact Report (July8, 2005) indicatesthat 23 flares located at five petroleum refineries in Contra Costa and Solano Counties are subject tothe BAAQMDflare rules. According to BAAQMD's Staff Report, 1.5 fulltime employees were necessaryto implement the flare rules for these 23 flares. Assuming equivalent staffing demands, over 50 additional full-time employees would be needed for the commissionto implement similar rulesfor the 782 activeflares (as of September 2005) injust the HCB and BPA areas. No changes were made tothe rules in response tothis comment.

Public Citizen commented that its recent report, "Industrial Pollution: Who Pays the Price?," examines the impact of unpermitted air emissions on human health and evaluates the role of thecommission in protecting Texas citizens from emissions events. Specifically, the report discusses data that shows there are health concerns, particularly regarding children, often two to four days after emissions events in certain areas of the state, and many of these emissions are carcinogens and other toxins. ClDA expressed concerns about various illnesses due to emissions inthe Port Arthur area. CE] commented on Public Citizen's report, stating that this provides the information that supports the commission protecting public health. CE] noted that after big upsets, many people are sick. Therefore, CE] supports permittingemissions from maintenance, startup, and shutdown.

Public Citizen commented that upset emissions can be upto 37times permitted hazardous air pollutants, and that startup/shutdown emissions can also exceed permitted amounts. Without permittingthese emissions, the commission cannot know how much of the ozone precursors are in the nonattainment and near nonattainment areas. Public Citizen wants to ensure that the commission has an adequate emissions inventory.

Several individuals commented that the emphasis on routine and/or predictable emissions allows exploitable wiggle room for any corporation. Citizens are held accountable for motor vehicle accidents, so entities should be held accountable for their accidents. Poor air quality equates to serious health hazards inTexas. BSA questioned whether the commission had researched the health effects on the surrounding community from upset emissions that are less than 5,000 pounds.

RESPONSE These rules provide an incentive for owners and operators to seek authorization for a significant portion of emissions that are currently unauthorized, allowingfor the orderly transition of planned maintenance, startup, and shutdown emissionsfroma vast number of facilities tobecome authorized. The transition schedule will allow time for a meaningful reviewof permit applicationsfor compliancewith the requirementsof best available control technology and impacts analysis. The commission determinedthat there 

### isa high probability that no negative health effectswould be expectedfrom the 5,000-pound ina 24-hour period levelfor oxides of nitrogen inareas other than ozone nonattainmentareas, ozone maintenanceareas, early action compact areas, Nueces County, and San PatricioCounty. The proposed default RQ of 5,000 pounds for all non-listedcompounds within areas other than nonattainmentareas, nearnonattainmentareas, early action compact areas, and Nueces and San Patricio Counties 

### is not adopted.

TPA commented that the Texas Railroad Commission (RRC), rather than the commission, has jurisdiction of emissions events associated with pipelines.

RESPONSE The commission acknowledges that the RRC hasjurisdiction regardingpipelines, however, the commission hasjurisdiction of air contaminants, and 

### ischargedwith safeguardingthe states's air
resources from pollution by controlling or abatingair pollution and emissions of air contaminants. Therefore, emissions of air contaminants from pipelines, whether authorized or unauthorized, remain subject to the jurisdiction of the commission. This 

### is discussed in detail in the responseto comments regardingthe definition of "Regulated entity."

Devon commented that TPA acknowledges that the commission may request information under the FCAA regarding pipeline emissions. However, upon receipt of this information, there is no substantive action the commission may exercise over pipelines because releases from pipelinesarefrom equipment and procedures required under federal Department of Transportation (DOT) rules, and therefore beyond the scope of the commission.

RESPONSE The commission agrees that it has the authority to require reporting of unauthorized emissions, but disagrees that the commission cannot exercise enforcement authority regarding unauthorized emissions from pipelines. Pipelinesare not the only facilities that are subject to other governmental regulation, and thereforethe fact that DOT regulates certain pipelines does notaffect the commission's jurisdiction with regardto corrective action that may be required to abate air pollution from pipelines or associatedfacilities. Corrective action required by the commission for unauthorized emissionswould not be contrary to RRC or DOT requirements. The issue of jurisdiction 

### isdiscussed later inthis preamble in responseto comments regarding the definition of "Regulated entity."

TCC and ExxonMobil Downstream commented that reportingand evaluation of emissions from emissions events and maintenance, startup, and shutdown activities with emissions only divided up by the emission point number would be consistentwith the authorization process. Evaluation of the emissions event by emission point number rather than facility would make it easier to determine which emissions are above the authorized limits, and therefore unauthorized. TCC, ExxonMobil Downstream, and TxOGA commented that a simple listing of affected facilities without assigning emissions should be sufficient.

RESPONSE The commission revises §101.201(a)(2) and (3) and (b), and S101.21 l(a)(l)(H)and (2)(H)to require that unauthorized emissions be reported intotal for each emission point, and that thefacilities experiencingthe emissions event be identified inthe report. Other subsections of 8101.211 retain the requirementto report by emissions point.

TCC and ExxonMobil Downstream commented that determination of reporting requirements based on the total emissions from the eventwill likely result in additional emission events and maintenance, startup, and shutdown activities being reported.

RESPONSE 'There 

### is no requirement that emissions stemmingfrom a common cause must be reported in total for the regulated entity. The commission revisedthe ruleto requirethat unauthorized emissions be reported intotal for each emission point. The determinationof whether emissions
are reportableshall be based on the comparison of contaminant levels at the emissions point to the RQ for each of the contaminants. It

### is unknownwhether this revisionwill result in significantly more emissions event reports. However, the revisionsto require emissions events reports by common cause for each regulated entity, as opposed to reports for each facility, will significantly reducethe number of required reports.


### -rIP, TCC, and ExxonMobil Downstream commented that the entire program should be simplified and based on emissions from the event, the cause of the event, and the corrective action for the event, rather than the potentially numerousfacilities that could, without benefit, be tied to the event.RESPONSE The commission adopted reductions to the notification, reporting, and recordkeeping requirements inthe 5101.201 and 5101.211. These rules now requirethat a minimum amount of information be reported that allows the commission to makethe initial response evaluation and to makefinal determinations.



### SUBCHAPTERA, 

### DEFINITIONS TxOGA supports the commission's proposed amendment to 5101.1(1)

### - (87)and proposed no other changes to existing language.

RESPONSE The commission appreciatesthe comment.

Sierra Houston commented that it supports the addition of the definition of boiler in 5101.1(5).

RESPONSE The commission appreciates the comment.

Sierra Houston commentedthat it supportsthe addition of the definition of combustion turbine in §101.1(13).

RESPONSE The commission appreciatesthe comment.

Duke supports the proposed definition of an emissions event in 5101.1 (27).

### RESPONSE The commission appreciatesthe comment.

Sierra Houston commented that itdoes not agree with the proposeddefinition for excess opacity event in 5101.1

### (31). Sierra Houston commented the excess opacity action level should be changedto 5% instead of 15% above the authorized limit for no more than 1 5 minutes.



### RESPONSE Opacity is not an emission of air contaminants. Opacity may be, but not always, an indirect indication that unauthorizedemissions may be occurring. For example, opacity exceeding5%

### of
an authorized limit may easily bethe result of increasedparticulatesize, and not necessarilyan increase inthe amount of emissions. Opacity at 15%

### above an authorized level 

### isa point at which the commission requires notification as there may be potential unauthorizedemissions or emissions approaching a potential harmful level. Additionally, owners or operators of facilities should be evaluatingthese emissionsto determine if they are an emissions event and subject to the applicable reporting.

Duke supports the proposed definition of a non-reportableemissions event in 5101.1(71).



### RESPONSE The commission appreciates the comment.

Arkema is concerned that the commission has not clarified all of the issues surrounding opacity emissions events, especiallyconcerning visible emissions that are not caused by those visible emissions sources that were the subject of 30 TAC 51 11.1 11, such as incomplete fuel combustion(i.e., smoke) or particulate-emitting process activities (i.e., handlingdusty materials). Arkema requested that the commission clarify the definition of "OpacityMin §101.1(72) to directly reference the definition of "smoke" to clarify when an opacity event 

### is reportable and when an opacity event that is not caused by smoke 

### is not reportable to the commission. Relieffrom the definition 

### is allowed for acid gas flares servicing natural gas sweetening processes.

RESPONSE -thedefinition of the term "opacity" 

### issimply a statement of what opacity is consideredand is consistent with the federal definition of opacity. Also, definitions are not the proper locationfor exemptions. Any potential exemptions should be provided inthe specific chapters or permit. As tothe comment of when opacity events are reportable under the emissions event rules, those requirements are provided in 5101.201 and 9101.21 1. 

### It should be noted that flares, with the exception of acid gas flares, do not have an opacity limit under 5111.11 1, instead the requirement is concernedwith visible emissions. Finally, the commenter could have misinterpreted the visible emission requirements of Chapter 111. Section 111.1 11 establishes visible emission standards for all sources and 

### is considered an all-exclusive rule, inthat 5111.111(a)(8) establishes an opacity limit for all other sources that have not already been listed in 9111.111(a)(l)

# - (7), however, permits and other regulations may establish lower limits. The commission made no changes to the definition based on this comment.

TPA commented that pipelines are not facilities, as defined in THSC, §382.003(6), that are subject to the requirement to obtain a permit or other authorization under THSC, Texas Clean Air Act (TCAA), Chapter 382. TPA suggested that the commission delete the last sentence of the definition of regulated entity in §101.1(85), and add a sentence that states that the term excludes transportation pipelines. Duke supported the proposed definition of regulated entity. However,

### the definitiondoes not differentiate between DOT pipelines, which are regulated by the Natural Gas Pipeline Safety Act and other gathering lines, or flow-lines, which this definition 

### istargeting. The distinctionwould help define where the commission's jurisdiction starts and where it stops.

RESPONSE The commission appreciates the support, and declinesto make the suggested changes to the new definition of regulated entity. 'the last sentence of this definition isadoptedverbatimfrom new THSC, §382.0215(h), added by HB 21 29,79th Legislature.

-thecommission regulatesfacilities, defined as a discrete or identifiablestructure, device, item, equipment, or enclosurethat constitutesor contains a stationary source, including appurtenances other than emission control equipment. 

### A mine, quarry, well test, or road is not considered afacility. 

### A stationary source isa non-mobilepoint of origin of air contaminants, whether privately owned or operated. Therefore, pipelines are facilities. The safetyjurisdiction of the RRC extends to all gas pipeline facilities and pipelines used inthe intrastate transportation and distribution of crude oil, natural gas, hazardous liquids or carbon dioxide; non-rural gathering lines; and all pipeline facilities originating inTexas waters (three marine leagues and all bay areas), including production and flowlines originatingat the well. The safetyjurisdiction of DOT covers pipelines used inthe interstate transportationand distribution of crude oil, natural gas, hazardous liquidsor carbon dioxide. The commission hasjurisdiction over emissions from all types of pipelines, and therefore, there is no basis for makingajurisdictional distinction in this definition.

-thecommission authorizesconstruction of facilities for air quality purposes, but has historically not electedto utilize its jurisdiction to permit the actual pipeline, or oil and gas wells, becausethe construction requirementsestablished by RRC and DOTadequatelyaddress best available control technology. However, although boththe commissionand the RRC havejurisdiction to regulate oiland gas processing and gathering plants, and producingsites, the commission requiresthese facilities to be authorized to emit air contaminants.

Facilitiesthat must have authorization are usually a cluster of emission points associatedwith gathering and distribution, such as valves, flanges, non-weldedjoints, pig-stations, tanks, loading racks, distribution terminals, or compressors. Fugitiveemissionsfrom the pipelines to loading racks or storagetanks must also be authorized. There are four basic levels of authorizations for these facilities. First, pipeline isolation valve sites are on the commission's 

### "De

### Minimis Facilities
or Sources" list, as provided for in 

### 5116.1 19. Larger stations need to claim one or more PBRs, such as 30 TAC 55106.261, 106.262, or 106.355. Ifthe plant includes a compressor station or storage tank, the owner or operator may claim PBRs (30TAC 5106.352 and/or 5106.512); or register the plant usingthe commission's Oil & Gas standard permit. The largest sites or treatment processing stations must obtain permits, and some may be subject to federal prevention of significant deterioration permits.

Unauthorized emissions from facilities associated with pipelinesare subject tothe reporting and recording requirements of 5101.201 and 5101.21 1. Although the commission is not exercising itsjurisdiction to require pipelines to haveauthorizations, any emissions from pipelines of air contaminants tothe atmospherewould be unauthorized and are also subject to the reporting requirements of 5101.201 and 5101.21 1.

BSA questioned how an RQ is determinedfor emissions limits in flexible permits, or with limits that
are based on 30-day rolling averages.RESPONSE The definition of RQ in §101.1(88) is not dependent upon the type of authorization, or even whether the emission 

### isauthorized. The RQ 

### isa thresholdfor identifying unauthorized emissions that are either subject to recordkeepingonly or to reporting requirements.
Arkema, Dow, ExxonMobil Downsteam, TCC, and TxOGA requested that the definition of "Reportable quantity" in 5101.1 (88) not be on afacility basis, but instead be for the total emission from a single event and recommended deleting "for each facility." Arkema requested that the commission maintain consistency between state and federal RQ definitions whenever possible, and that the word "facility" in 5101.1 (88)for emission events be changed to "regulated entity." Dow commented that the proposed revision to the RQ definition in 5101.1(88) makes the RQ reporting requirements applicable to facilities instead of regulated entities. Where morethan one unit 

### is involved in an emissions event, this change could, in effect, increasethe RQ from the current 

### SIP rule. TxOGA suggested that the commission revise the definition to provide that the RQ 

### isfor each emissions event or scheduled maintenance, startup, or shutdown emissions activity. TxOGA commented that the proposal 

### iscontrary tothe legislative intent, which 

### isto eliminate the counterproductive process of "speciating" emissions events by artificial and problematic allocations of emissions to each facility that 

### is in any way involved in the emissions event. TxOGA also commented that such allocations are subjective at best, require much additional work, and produce
no benefit at all. TxOGA suggested that the definition be expanded'to make itapplicable also to scheduled maintenance, startup, or shutdown emissions activities as referenced in 5101.21 1.

RESPONSE The commission 

### is required by statute, THSC, TCAA, 5382.0216, to evaluate each emissions event to determine if it is excessive. In order to make this determination, evaluation on afacility-by-facility basis 

### is required. Therefore, all facilities contributing or emitting unauthorized emissions subject tothis rule must be identified. The commenters' requestedchanges were not made. However, the commission made some changes in reportingtoallow multiplefacilities to be includedwithin a single notification and final report, by regulated entity, where there 

### isa common cause for the emissions event. The commissionalso revised 8101.201 and 8101.21 1to allow emissions to be reported intotal from each emission point that have unauthorized emissions resulting from the common cause, as opposedto separating and identifying emissions toeach facility contributing to those emissions. During such an emissions event, some facilities may experience emissions events directly from a cause that 

### is not common to other facilities. In this situation, there must be separate notification and reporting of these emissions by the
common cause, and can be included ina single notification and final report by regulated entity
as previously described. Finally, the definition of RQ does not need to be expanded to make it applicable to scheduled maintenance, startup, or shutdown emissions activities as referenced in 8101.21 1. Section 101.21 1(a) already referencesto the definition of RQ.

EPA commented that by increasing RQ thresholds in 5101.1 (88)from the existing SIP rule, the commission will receive less information concerning the number of emission events below the 

### RQ at a given facility. EPA is concerned that this change 

### will increasethe number of non-reportable emissions events. Therefore, EPA suggested that the commission establish reporting requirements for non-reportable emission events where the frequency of those emissions events at a given source exceeds a threshold number. Also, EPA would like for the commission to explain how itwill make excessive emissions event determinations required by 

### 5 101.222(b).RESPONSE Sections 101.201(h) and 101.211(f) include the requirementfor an annual emission event reporting of all emissions events, via annual emission inventory report for major sources and annual electronic reportingfor non-major sources. This reporting 

### issufficient to address EPA's comments. Itwould be extremely difficult toestablish athreshold numberfor each type of
source that 

### is regulatedby the commission. Furthermore, the establishment of a single threshold number would not only be technically difficult, but would require a thorough public comment process inorder that the threshold would not be perceivedas arbitrary. As to how the excessive emissions event determinations are made, all reportedemissions events are reviewedto determine ifthey are considered excessive. For non-reportedemissions events, staff conducts records reviews of Title 

### V deviation reports during investigations, or as needed if it 

### is determined that there is a possible recurring patternwith a specific facility or regulated entity.

TxOGA supported the amendmentto 

### 51 01.1 (88)(A) and (B)(iii)and proposed no other changes to the existing language. Arkema, ExxonMobil Downstream, and 

### TCC supported the revisionsto the RQ for oxides of nitrogen and the determination based on total oxides of nitrogen. Duke supported the 5,000- pound RQ for oxides of nitrogen as the default RQ in attainment areas. TPA suggested a 5,000-pound RQ for oxides of nitrogen as a statewide threshold, stating that there should be no distinction between attainment and nonattainment areas because there 

### is no similar area distinction for other air contaminant compounds.

RESPONSE Since oxides of nitrogen emissions significantly contribute to the formation of ozone, the commission determinedthat inozone nonattainment areas, ozone maintenanceareas, early action compact areas, Nueces County, and San Patricio County the RQ for these contaminants
-65-should remain at a lower level than 5,000 pounds. The notification of emissions at a lower RQ level iswarranted inareas where releases to the atmospherethat could affect efforts to maintain
or achieve attainment with the eight-hour NAAQSfor ozone. The 100-pound RQs for nitrogen oxide and for nitrogen dioxide were discontinued, and an RQ is establishedfor oxides of nitrogen. 

### Inthese geographic areas notificationsfor planned maintenance, startup, and shutdown activities with emissions predictedto exceed the 200-pound RQ for oxides of nitrogen should be reported inorder that the commissioncan evaluatethe plan and determine if additional measures should be taken tofurther reduce emissions. Notification and reporting of emissions events inthese areas should occur when emissions exceed the 200-pound RQ for oxides of nitrogen inorder for the commissionto determine if these emissionsare excessive or whether they may be subject to an affirmative defense.

EPA commented that 5101.1 (88)(A)(i)(lIl)(-p-) allows increases in the RQ for nitrogen oxide from 100 pounds in the nonattainment areas to 200 pounds for oxides of nitrogen. At the same time, 5101.l(88)(A)(i)(lll)(-p-) also increases the nitrogen oxide's RQ from 100 pounds for the rest of the state to 5,000 pounds. Given the recognized significant role of oxides of nitrogen in the regional control strategy (Chapter 117 rules for East and Central Texas) and the ozone nonattainmentareas (Chapter 117 rules for attainment demonstration), EPA 

### is concernedthat the increase inthe RQ could impact related SIP requirements. EPA requested that the state supplement the public record to adequately address technical and economical justifications for these significant increases in the RQs. EIP and IPCA requested an explanation for this rule change and requestedthat the RQ for the combined oxides of nitrogen remain 100 pounds.RESPONSE The commission clarifies that there was no prior established RQ inthese rules for oxides of nitrogen. the 100-pound RQ for nitrogen oxide and the 100-pound RQ for nitrogen dioxide have been deleted and insteadan RQ is establishedat 200 pounds for oxides of nitrogen. This revision 

### isadopted to reducethe requirements for speciating compoundswhile continuingto provide the commissionwiththe information necessarytoevaluate emissions subject tothis rule. Inozone nonattainment areas, ozone maintenance areas, early action compact areas, and in Nueces and San Patricio Counties, the commission requires that notificationsand reports be providedfor relatively low-levelemissions of oxides of nitrogen, specifically those emissions that exceed the 200-pound RQ, inorder for the commission to make more immediate determinations inthese sensitive air quality areas. The increase inthe RQ to5,000 pounds incertain areas of the state does not negatively affect the commission's regional control strategy and other work to protect air quality because it does not provide for additional emissions of these compounds. The commission also determined that there is a high probability that no negative health effects would be expected at the 5,000-pound in a 24-hour period level. This revisiondoes establish a different level above which emissions must be reported tothe commission for immediateevaluation. This reducesthe administrative burden on the commission to immediately review relatively low-level emissions, however, emissions not exceedingthis RQ must continuetobe maintained in records and are subject tocommission review for excessive determinations.
Regarding SIP requirements, while emissions variability from major oxides of nitrogen sources plays a role indeterminingthe ozone concentrations experienced across East Texas, unauthorized oxides of nitrogen emissionsare not common. For electric generating utilities, the largest oxides of nitrogensources inattainment counties, the commission uses data fromthe Acid Rain Program Databasetocharacterize emissions, including variability and events, inSIPmodeling. Other special inventories may be prepared for the Texas Air Quality Field Study 

### II that is currently taking place (Spring 2005

# - October 2006). These inventories will help provide data needed for analysis of oxides of nitrogen emissionsvariability due to routine authorized and unauthorized emissions. Future modelingepisodes may well be able to use datafrom the CCEDS, which contains data onemission events.

EPA and EIP commented that 5101.1(88)(A)(i)(lIl)(-q-) 

### - (-ss-), increases the RQ for several of the CFC, HFC, and HCFCs from the default value of 100 pounds to 5,000 pounds. Despite the changes inthe RQs, the environment will continueto experience the impact of such releases. EPA 

### is concerned that the streamlined reporting of excess emissions of these chemicals will increase the number of potential releases of these compounds. EPA acknowledged the commission's statements tothe effect that these compounds are not criteria pollutants or do not contribute to the ozone nonattainment problem as the rationale for increasing the RQ for these compounds. However, the state's SIP reporting requirements address awide range of pollutants that affect human health and the environment, notjust criteria pollutants. For example, hydrochloric acid 

### is neither a criteria pollutant, nor is knownto contributeto the ozone nonattainment problem; however, excess emissions of this compound could potentially have serious health and environmental impacts. EPA and EIP requested that the state supplement the public record to adequately address technical and economicaljustifications for the significant increases of the RQs for these CFC, HFC, and HCFCs compounds.

RESPONSE The establishment of specific RQs for CFC, HFC, and HCFC will not result inadditional releases of these compounds. This revision establishes a compound-specific RQ above which emissions must be reported tothe commission for immediate evaluation. This reducesthe administrativeburdenon the regulatedcommunityfor reporting relatively low levels of emissions, and on the commissionfor havingto immediately reviewthese same emissions. However, emissions not exceeding this RQ must continueto be maintained in recordsand are subject to commission review for excessivedeterminations. The CFCs, HCFCs, and HFCs compounds are neither listed
on EPA's Comprehensive Environmental Responsibility, Compensationand Liability Act (CERCLA)
or Emergency Planningand Community Right-to-KnowAct (EPCRA) 

### list, nor are they criteria pollutantsor precursors of ozone. The commissiondeterminedthat there isa high probability that no negative healtheffects would be expected at the 5,000-pound ina 24-hour period level. Therefore, no revisionto the rule has been made based on this comment.



### Dow commented the that the commission should establish a default RQ of 5,000 pounds, for all contaminants that are CFCs, HFCs, or HCFs. Arkema, Dow, ExxonMobil Downstream, and TCC agreed with the proposal concerningCFCs, HCFCs, and HFCs, however, Dow urged adoption of a default RQ of 5,000 pounds, for any other CFCs, HFCs, or HCFCsthat are not specifically listed in the proposed definition of RQ. Dukeand Dupont also supportthe 5,000-pound RQ for CFCs, HFCs, or HCFCs inall areas. They agreed that these compoundsare neither criteria pollutants nor precursors of ozone. Furthermore, Dupont suggested that the commission include the following
seven fluorocarbon compounds: pentachlorofluoroethane(CFC-111); 1,1,2,2- tetrachlorodifluoroethane (CFC-112); 1,1 ,I 

### ,2-tetrachlorodifluoroethane (CFC-112a); 1,I

### ,1-trichloro2,2,2- trilfloroethane (CFC-113a); 1 ,l,- dichlorotetrafluoroethane (CFC-114a); 1 -chloro-1,1,2,2 tetrafluoroethane (HCFC-124a);and 1,1,1,2,3,3,3-heptafluoropropane 

### (HFC-227ea).

RESPONSE The requested revisions have not been incorporated. These types of case-specific compounds need to be reviewedon an individual basis, inorder to determinewhether there isa toxicproblem, the compound 

### isa listed criteria pollutant, or if the compound 

### is already listed on the EPA's CERCLA or EPCRA list. The CFCs, HCFCs, and HFCs compounds listed by Dupont are neither listed on EPA's CERCLA or EPCRA 

### list, nor are they criteria pollutants or precursorsof
ozone. The commission's Toxicology Section reviewed the toxicity of each compound. Each of the listed compounds are relatively non-toxic such that there was a high probability that no health impact would be expected at the 5,000-pound ina 24-hour period level. Therefore, the following compounds have been added tothe definition of RQ in

### 5101.1(89)(A)(i)(llI): pentachlorofluoroethane (CFR-111); 1,1,2,2-tetrachlorodifluoroethane (CFR-112); 1,1,1,2- tetrachlorodifluoroethane (CFC-112a); 1,1,1-trichloro-2,2,2- trilfloroethane.(CFC-113a); 1,I,- dichlorotetrafluoroethane (CFC-114a); 1-chloro-1,1,2,2 tetrafluoroethane (HCFC-124a); and 1,1,1,2,3,3,3-heptafluoropropane (HFC-227ea). All of the compounds listed in 

### 5101.1(88)(A)(i)(l

### lI) have been reorganized intoalphabetical order.

EPA commented that 5101.1(88)(A)(ii) maintainsthe default RQ for 

### all other air contaminants when there 

### is not a listed RQ for the nonattainment and the early action compact areas at 100 pounds, but such an RQ for all other areas 

### is increased to 5,000 pounds. EPA commented that this proposed change increases certain RQs from those in the currently approved SIP. EPA requested that the commission supplement the public record to adequatelyaddress technical and economical justifications for significant increases of the RQs for these air contaminants. EIP objected to the increase in the default RQ from 100 pounds to 5,000 poundsfor areas other than nonattainment, maintenance, early action compact areas, and Nueces and San Patricio Counties. EIP commented that the commission has notjustified such an increase, which will significantly reduce the information being reported to the commission regarding unauthorized emissions. EIP requested consideration of unauthorized emissions; in particular toxic emissions and their local impacts.RESPONSE The commission had proposedthat the default RQ for non-listed compoundswithin areas other than nonattainmentareas, near-nonattainmentareas, early action compact areas, and Nueces 'and San PatricioCounties could be raised from 100poundsto 5,000 pounds ina 24-hour period.

However, following consideration of comments, and following further review of the proposed change, the commission maintains the default RQ of 100 poundsfor those compounds not specifically identifiedor referenced inthe proposed rule.

The development of RQs for currently non-listedcompounds might, inmany cases, support levels higher than the current default of 100 pounds. However, it

### is not reasonablefor the commission to attempt a comprehensive evaluation for each of the non-listed contaminants and to identify compound-specific RQs. Ininstanceswhere unlisted compounds are common in use and the development of compound-specific RQs 

### isjustified, the commission can do so, such as the RQs adopted inthis rulemakingfor certain refrigerants.

Dow commented that in 5101.1(88)(A)(ii) the commission should establish a default RQ of at least 1,000 pounds, for other volatile organic compounds that are not listed in the federal or state RQ lists, and adefault RQ of 5,000 pounds, for other non-volatile organic compounds air contaminants in the nonattainment, early action compact areas, and selected counties in Texas. ExxonMobil Downstream, TCC, and TIP commented that the default RQ values should be raisedto 5,000 pounds for all unlisted compounds in all areas of the state. The commission should provide specific lower RQs for any compounds it believes are significant issues and such values are rightly lower for compounds that are potentially significant to the ozone issue, but only in ozone nonattainment areas or near-nonattainmentareas.RESPONSE The commission had proposedthat the default RQ for non-listedcompounds within areas other than nonattainment areas, near-nonattainmentareas, early action compact areas, and Nueces and San Patricio Countiescould be raisedfrom 100 poundsto 5,000 pounds ina 24-hour period. However, following consideration of comments, and following further review of the proposed change, the commission maintains the default RQ of 100 pounds for those compounds not specifically identified or referenced inthe rule.
Calpine commentedthat it supported the proposal to raise the default 100-pound RQ for nonCERCLA/EPCRA pollutants to 5,000 pounds in attainment areas found in 5101

### .I (88)(A)(ii). However, Calpine commented that the commission should consider raising the default RQ in all other areas for those substances that are notvolatile organic compounds or reactive compounds from 100 pounds to 5,000 pounds. Releases of less than 5,000 pounds of non-volatile, nonreactive substances do not represent a risk tothe public or environment in ozone nonattainment areas, just as in attainment areas.

RESPONSE The identificationof all currently unlisted compoundsthat would requirea specific RQ to address the air quality status of these areas would be technically challengingand a significant burden. Therefore, the commissiondid not change the RQ for unlisted compounds inthese
areas.
Calpine commented that it is not clear why the commission proposed to include near nonattainment, maintenance, and early action compact areas, as well as Nueces and San Patricio Counties, with nonattainment areas in the definitions section. These areas have not beendesignated as nonattainment for ozone, and therefore should not be subject to the same restrictions on volatile organic compounds RQs as nonattainmentareas.

RESPONSE The commissiondid not proposeto raisethe RQ for volatile organic compounds inthese additional areas because they are identifiedas areas at riskfor becoming nonattainment. No change has been made in responsetothis comment.

TxOGA suggested that 5101.1(88)(B)(iv) should be revised to include the terms "the hydrocarbons in" beforethe phrase "natural gas excluding methane and ethane, or air emissions from crude oil
are known to be in an amount greater than or equal to 5,000 pounds or" and add "the" before "associated hydrogen sulfide and mercaptans" and finally add "are" before "in a total amount greater than 100 pounds, whichever occurs first." TxOGA commented that these changeswould clarify languageto exclude carbon dioxide, nitrogen, hydrogen, and water vapor that 

### is consistent with interpretations given by most of the commission's field inspectors. The clarification 

### is needed becausethere have been inspectorswho said that "natural gas" included carbon dioxide and nitrogen for the purposesof this rule.

RESPONSE The commissionagrees with the commenter's overall suggestion, however, not inthe exact wording suggested by the commenter. Section 101.1(88)(B)(iv) 

### is revisedto clarify the language to exclude carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen. All of these compounds were already excluded under the definition of unauthorized emissions.AECT concurred with the proposed revisionsto 

### 5 101.1(88)(C)inthe definition of "Reportable quantity" regardingboilers and combustion turbines in 

### 5 101.1(88)(C) and requestedthat the commission retain these provisions. AECT commented that failure to do so would be contrary to legislative intent. Calpine, ExxonMobil Downstream, TCC, and TxOGA supported the commission's proposal to add "gaseous fuels other than natural gas" to the definition of "Reportable quantity" under 5101.1 (88)(C). However, TCC commented that the very low threshold values may make this addition of very limited value to most sources. Calpine commented that no limit 

### is neededfor the combustion of hazardous air pollutants or highly reactivevolatile organic compounds and requested that the commission provide the basis for the 0.02% limit being carried
over from the current restriction on the hazardous air pollutants content of fuel oil. If a scientific basisfor such a limit was provided, Calpine suggested that the commission consider adding a provision that ifthe fuel burned inthe boiler or turbine contains 0.02% by weight or more of hazardous air pollutants or highly reactivevolatile organic compounds, then only the RQs for those hazardous air pollutants or highly reactivevolatile organic compounds should apply duringthose periods. The use of gaseous fuel with more than 0.02°/o hazardous air pollutants or highly reactive volatile organic compounds does not necessarily result in higher emissions of oxides of nitrogen, carbon dioxide, or other combustion products. Emissionsof those products are not tied tothe hazardous air pollutants or highly reactivevolatile organic compounds content of the fuel, but rather are dependent on such factors as fuel British Thermal Unitvalue, unit tuning, unit load, ambient temperature, and combustion temperature. Therefore, only emissions that increase as a result of use of the higher hazardous air pollutants and highly reactivevolatile organic compounds fuels should be subject to the RQ and reporting requirements of 

### 5 101.201 and 5101.21 1.



### EIP requesteddeletion of the exemption in 5101.1 (88)(C),stating itviolates the EPA requirement that all excess emissions be reported promptly and the proposed rule contains nojustification. Thecurrent rule states that opacity is the only RQ applicable to certain boilers and combustion turbines. The rule, therefore, seems to allow such boilers and turbinesto emit unlimited amounts of nonopacity pollutantswithout exceedingan RQ and triggering reporting requirements. EPA commented that proposed 5101.1 (88)(C)exempts certain boilersand combustion turbines from reporting requirementsfor all pollutants except unauthorized opacity releases. EPA requested that the commission providethe basis for exemptingthese sources from reporting requirements and explain ifthe proposed rule allows these sources to assert an affirmative defense to emission events for unreported releases.

RESPONSE With regardtothe request from EPA and requestthat the commission provide the basis for the 0.02% limit for hazardous air pollutants, the commissionoriginally adopted the rule language found in§101.1(88)(0 in 1997, which has previously been approved by 

### EPA. Justification provided (July 29, 1997, issue of the 

### Texas Register (22 TexReg 7040)) stated: "The definition of RQ was further modifiedfor boilers and combustion turbines fueled by natural gas, coal, lignite, wood, or fuel oil containinghazardousair pollutants at concentrationof less than 0.02X by weight. The only RQ for these units 

### isopacity which 

### is 15 additional percent above applicable limits. This modification 

### is added in recognition of the fact that boiler and combustionturbine emissions consist primarily of carbon dioxide, nitrogenoxides, water, and small amounts of carbon monoxideand are not acutely harmful if unconfined. The figure of 0.02% by weight 

### is significant becausetrace contaminants, at this concentrationor less, that might be present in used oil fired in boilers and combustion turbines will generally result in emissions below an RQ inthe event of an upset." Therefore, the RQ for boilers and combustion turbines as previously listed has not been deleted as suggested. However, §101.222(f) has been revised in responseto this comment and to comply with EPA policy. Itprovides that the affirmativedefense 

### is notavailable for personsthat are not required by 8101.201 and 8101.211 to record or report unauthorized emissions, unless the owner or operator complies with those sections. It provides that the affirmative defense 

### isavailableonly for emissions that are reported or recorded. those entities that are not required by 5101.201 and 5101.211 to recordor report unauthorized emissions may voluntarily comply with the recording requirements of those sections to ensure the availability of the affirmative defense.

As for the revision tothe 

### RQ concerning "gaseous fuels other than natural gas, provided the hazardous air pollutants or highly reactive volatile organic compoundscontent of the fuel does not exceed 0.02% by weight," this languagewas not adopted. The language was suggested during one of the stakeholder meetings held beforethe rule revisions were proposed. Itwas expected that the supporting scientific basis would be provided by commenters during the comment period. Since no scientific basis for the language was provided by commenters and the commission isconcerned that the composition of gaseous fuel could vary greatly, the commission removed the phrase in §101.1(88)(C), "or gaseous fuels other than natural gas, providedthe hazardousair pollutants or highly reactive volatile organic compound content of the fuel does not exceed 0.02% by weight," for the 

### RQ for boilers and combustion turbines.

In response to EPA's comment regardingaffirmative defense, §101.222(d) and (e) 

### isthe only affirmative defense section for excess opacity events when there 

### is no emissions event. 'The emissions from boiler and combustion turbines consist primarily of carbon dioxide, nitrogen oxides, water, and small amounts of carbon monoxideand are not acutely harmful if unconfined. Inaddition to excess opacity events, when boiler and combustion turbines release these contaminants in quantities inexcess of authorized limits, the contaminants are unauthorized and
are eligible for the affirmative defense in 8101.222(b) and (c).EPA commented that 9101.1 (88)(D)should be deleted because itwould allow the commission to set RQs outside the public participation process. Furthermore, for some pollutants, especially toxics, the stated criteria allow RQs to be set at too high a level. The current rule includesa provision that allows the commissionto set site-specific RQs at facilities monitored by continuous emissions monitoring systems. It 

### isthe commenter's understandingthat only two companies have
ever applied for a site-specific RQ and that both applications were withdrawn.

RESPONSE The commenter 

### iscorrect inthat only two companies have appliedfor the case-specific RQ at facilities that are monitored by continuous emissions monitoringsystems. However, the commenter 

### is incorrect that the stated criteria would allow RQs to be set at too high a level. The modelingand other requirementsrequired under this provision, are stringent and established to protect air quality and human health. Infact, the companies withdrew their request when the requiredmodelingwould only support an RQ that would have been lower than what was allowed inother subsectionsof the definition. No revisions have been made based on the comment.

TxOGA supported the proposed amendmentto §101.1(89)and did not propose any additional changes to existing language.

RESPONSE The commission appreciatesthe comment.

HCPHES commented that it does not agree with the revised definition of "Scheduled maintenance, startup, shutdown activity" provided in §101.1(90). HCPHES commentedthat the new language of"by more than an RQ" should be deleted. HCPHES commented that all emissions in excess of a permit or other authorization should not be allowed, and that emissions above allowable limits may cause or contribute to violations of the NAAQS and the HGB region's ability to reach attainment for ozone. HCPHES commented that itappears that this definition allows for an automatic exemption for certain unauthorized emissions. HCPHES also commented that scheduled maintenance isa predictable event that can be scheduledto a large extent at the discretion of the
source as part of normal operations and should be incorporated into a source's air permit.

RESPONSE The term "by more than an RQ" was an addition by HB2129, 79th Legislature. Therefore, the commenter's suggestion has not been made. Regardingthe comment that scheduled maintenanceactivities are predictable events that can be scheduledat the discretion of the company as part of normal operations, these rules provide an incentive for authorization of emissions from planned maintenance. Inaddition, the commission 

### isconcurrently proposing rules for authorization of emissionsthat have not been historically authorized.
Dow, ExxonMobil Downstream, and TCC support the changes regarding the definition of a scheduled maintenance, startup, and shutdown activity. TxOGA commented that 

### §101.1(90) should be revised to add language that would state that the activity is one for which the owner or operator provides notice, whether performing or otherwise affected by the activity. TxOGA's suggested language clarifies that the owner or operator of a regulated entity that expects to have unauthorized emissions as the result of maintenance, startup, or shutdown activity, regardlessof whether the activity will occur at the regulated entity or at another location (e.g., flaring or venting at an oil production lease due to maintenance at a downstream natural gas processing plant), canprovidethe required prior notice and be allowed to treat the activity as ascheduled maintenance, startup, or shutdown activity.

RESPONSE The commissionappreciates the support, and agrees with TxOGA's comment. If

### h regulated entity has knowledgethat a maintenance, startup, and shutdownactivity 

### isgoing to occur downstream at another regulated entity that will cause unauthorized emissions at the first regulated entity's facility, the first regulated entity will be allowedto provide a maintenance, startup, and shutdownactivity notification. Therefore, the phrase "whether performingor otherwise affected by the activity," has been added tothe rule. However, it must be noted, that if the actions by the other regulated entity will cause unauthorized emissions at an upstream regulatedentity on a regular and re-occurringbasis, the upstream regulated entity should seek authorization for those emissions.

TxOGA also proposed substitution of "that" to replace "for which" in 5101.1 (90) becausethe existing language 

### is bad grammar and confuses, rather than clarifies, the meaning of the rule. Furthermore, TxOGA also suggested that the term "timely" is redundant and should be deleted.

RESPONSE The commission replaced "for which" to "that" in numerous locations in the rule languageto conform to the drafting standard inthe Texas Legislative Council DraftingManual, November 2004. The commission agrees that the term "timely" 

### is redundanttothe specific reporting deadlines already required in 5101.21 1, therefore, the term has been deleted inthe definition.
TxOGA supported the proposed amendment to 5101-1 (91)

## - (115).RESPONSE The commissionappreciates the support.
Arkema requested that the commission define "administrative technical orders" in 5101 .l.

RESPONSE Administrative technical orders are a common method by which the commission implements technical requirementsfor a correction action and the term 

### is generally known by the public and affected parties. Therefore, the commission does not agree that the term should be defined in 

### this chapter and nochanges have been made based on this comment.

Arkema stated that "sulfur recover plants" are not defined in either §101.1 nor 30 TAC 51 12.7. Arkema requested that the commission define "sulfur recovery plant" as a petroleum refinery process unitthat recovers sulfur from hydrogen sulfide by a vapor phase catalytic reaction of sulfur dioxide and hydrogen sulfide. This proposed definition 

### is consistentwith the EPA Petroleum Refinery New Source Performance Standard (40 CFR Part 60, SubpartJ).

RESPONSE The commission has not addedthe suggested definition for "sulfur recovery plants." The term 

### is not used inany of the sectionsthat are open inthis rulemaking. Furthermore, defining a term in this chapter that 

### is used predominantly inanother chapter that is not currently open for public comment would be beyondthe scope of this rulemaking.

TxOGA commented that a definition for the term "Agency established facility identification number" should be added to 5101.1 and defined as follows: "for the purposesof Subchapter F, aunique alphanumeric code requiredto be assigned by the owner or operator ofa regulated entity to which the emission inventory reporting requirements of 5101.10 are applicable to each facility at that regulated entity." This definition is proposed to clarify and regularize the meaningof this term.

RESPONSE The commissionagrees that the suggested definition will provide clarity for the reporting requirement of 5101.201 and 5101.211. Therefore, the following definition has been added to 5101.1: "Agency establishedfacility identification number

# - For the purposesof Subchapter 

### F of this chapter (relatingto Emissions Eventsand Scheduled Maintenance, Startup, and Shutdown Activities), a uniquealphanumeric code requiredto be assigned by the owner or operator of a regulatedentity that the emission inventory reporting requirementsof S101.10 of this title (relatingto Emissions Inventory Requirements)are applicableto each facility at that regulated entity."

TxOGA commented that a definition of "root cause" should be added to the definition section: "The specific language provided would limitthe applicability to Chapter 101, Subchapter 

### F only, and state that "root cause" 

### isthe principal reason for the emission event and without which the emission eventwould likely not have occurred." The definition would also provide that afacility located at a regulated entity may be the root cause facility for an emissions event, or the root cause for the event may be associatedwith an offsite critical support system (e-g., electricity, steam, or water supply, or pipeline capacity for gas production)." TxOGA proposed that in several of the emissions event reporting provisions, that the owner or operator identify and report only that facility at the regulated entity that 

### isthe "root cause" of the event. TxOGA commented this wouldprovide a proper focus for understandingand evaluation of the actual cause of the event and would eliminate reporting of unnecessary and possibly misleading information.

RESPONSE The term "root cause" has a specific meaningto most industriesand typically entails a longterm review process, which may not be completed within the designated reporting and recordingtime requirements in § 101.201 and $1 01.21 1. The commissionadded the term "best known" and "at the time of the notification," to existing §101.201(a)(2)(1), relettered as subparagraph 

### (H), and to existing §101.201(a)(3)(D), reletteredas subparagraph (C). This revision clarifies that the cause of the emissions event 

### is based on best available informationat the time of the notification, which can include root cause information. Therefore, the commission did not makethe suggested addition.



### EPA commented that in order to determine applicability and ensure enforceability of Chapter 101 requirements, the rule should include definitions for three widely used terminologies: "startup," "shutdown," and "maintenance." 

### EPA commented that startup, shutdown,.and maintenance periods should be defined as discrete periods of limited duration and the definition should clearly distinguish between routine startup, shutdown, and maintenance-relatedemissions (from normal operation) and nonroutine startup, shutdown, and maintenance-related emissions (from malfunctionsor upsets, poor operation, or maintenance).

RESPONSE These terms are frequently used inthis chapter, but they are also used inother chapters. Becausedefinitions used inthe general rule are applicable to other chapters, the commission determined that it 

### is not inthe best interest of all affected parties if these terms were addedwithout allowingfull public comment onthe exact languageto be used. Section 101.1, Definitions, states that "{u)nless specifically defined intheTexas Clean Air Act (TCAA) or inthe rules of the commission, the terms used by the commission havethe meanings commonly ascribedtothem inthe field of air pollution control." As an example, one common meaningfor the terms "startup" and "shutdown" could be takenfrom EPA's 40 CFR Part 60, SubpartA definitions, inthat "startup" is defined as: "the setting inoperation of an affectedfacility for any purpose." The term "shutdown" is also defined in Part 60, Subpart A as: "the cessation of operation of an affectedfacility for any purpose." While the common definition for the term "maintenance" could be taken fromthe Webster's New College Dictionary inthat "maintenanceNis the "to maintain," or "To preserveor keep ina given existing condition, as of efficiency or good repair." As to EPA's comment that the terms should be definedas discrete periodof limited duration, EPA's owndefinitions in40 CFR Part 60, SubpartA do not provide a discretetime period. This 

### isbecause 

### it would be an almost impossibletask totake into consideration allof the different types of sources and develop a single discretetime period that would cover all of the types of sources. 'this is better left to a case-by-case review. Therefore,
no changes have been made based on this comment.

Sierra Houston commented that the following terms or phrases, which are used in .§§I 01.201, 101.211, and 101222 sho,uld be defined in S101 .l: "good engineering practice," "viable," "emissions activities or activity," "minor omissions or inaccuracies," "knowingly or intentionally falsified," "reasonably avoided," "technically feasible," "could reasonably have been reported," "from sudden and reasonably unforeseeable events," and "immediate corrective action to restore normal operation."RESPONSE Section 101 

### .I states that "{u)nless specifically defined inthe Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them inthe field of air pollution control." Because the terms and phrases that Sierra Houston suggested to be definedare generally known by the public and affected parties, or can be found in a dictionary, the commission does not agree that the terms or phrases should be defined inthis chapter. Therefore, no changes have been made based on this comment.
Subchapter F: Emissions Events andScheduled Maintenance, Startup, andShutdown Activities Division 1: Emissions Events Section 70 1.20 1 

### - Emissions Event ReportingandRecordkeepingRequirements TxOGA, TCC, Duke, and ExxonMobil Production commented that notifications required in 5101.201 (a)(2)(B) and (b)(3)(B),and final records required in 5101.201(b)(l )(B)and (2)(B)and (e)(2) should not be required to include both the RN and the air account number. TxOGA and ExxonMobil stated that if a regulatedentity has an RN, that this number should allow the identification of the location of the entity and its attributes without the need for an air account number. Ifthe regulated entity does not have an RN, the air account number should be provided instead. TxOGA also recommended that the rule clarify that the location of the release needed for the report 

### isthe physical address or driving directions to the regulated entity. TCC recommended that the identification of the site should be identified by providingthe RN, the air account number,
or the physical location and contact number, inthat order. Duke commented that there should be flexibility to report either the RN or the air account number when either exists, or otherwise to reportthe location name and a contact phone number to satisfy the requirements.RESPONSE The commission 

### istransitioningtothe use and requirement of RNs in identifying regulated entities. The commission will only require the air account number to be listed when the regulatedentity does not have an RN.
Arkema requested that the commission clarify if speciation of nitrogen oxides 

### is required in the initial notification or in the final emission reports.

RESPONSE The commission revised 5101.1(89)(A)(i)(l I)(-p-1to establish an RQ for oxides of nitrogen. The revised definition eliminates the prior requirementto speciate these compounds for notification and reporting requirements.

TOTAL commentedthat 5101.201 (b)(l)and (2)should be worded identically, since both provisions identifythe components of a final record of an emissions event. Furthermore, each paragraph should appropriately refer to "regulated entity" rather than "facility." TOTAL suggested that 5101.201 (b)(l) should be revised to read, "The final record of a reportableemissions event must identify for each "regulated entity:", while 5101.201 (b)(2)should be revisedto read, "The final record of a non-reportableemissions event must identify for each regulated entity:".

RESPONSE The commission revised S1 01.201(b)(2)(D) to be worded identically to S101.201 (b)(l)(D); revises 

### S 101.201(b)(2)(C)to be worded identicallyto 

### S101.201(b)(l)(C); revises

### S 101 -201 (b)(2)(H)to be worded identically to §101.201(b)(l)(H); renumbers S101.201(b)(2)(1)to become §101.20l(b)(2)()); adds S1 01.201(b)(2)(1) to be worded identically to 5101.201 (b)(l)(l); renumbers5101.201 (b)(2)(J)to become 5101.201 (b)(2)(L); and adds 8101.201(b)(2)(K) to be worded identically to §101.201(b)(l)(K). The commission replacedthe term "facility" with the term "regulated entity" to be consistentwith 

### HB 2129. The legislation was specific and did not affect other sections of the chapter inthis regard.

LCRA expressed concern that initial notifications and final reports required under 5101 

### .I01 (a) and (b) give competitive advantageto LCRA competitors or prospective competitors. LCRA suggested adding a subsection (i)that would allow notifications required by subsections (a) and (e), which are marked as confidential competitive information under Texas Government Code, 5552.133(b), be submitted only in a manner that ensures protection of the information from disclosure for a limited period of time. This would be confidential only until the emissions event 

### isover and the final report is submitted. LCRA also suggested two alternatives. First, LCRA suggested that the rule be amended and a corresponding change to the commission's STEERS reporting system that would allow for the submittal of electronic information under a temporary'claim of confidentiality. The second recommendation would be the development of another submittal method that ensures confidential treatment of the information until the final report 

### is submitted, which would be a minimal burden on the commission and LCRA to manage the information, and provides for immediate disclosure of the information to members of the public when that information 

### is no longer confidential.

RESPONSE The commission did not revisethe rule in response to these comments. In 

### HB 2912, 77th Legislature, the commission added THSC, §382.0215(g), which provides, in part, that the commission develop the capacity for electronic reportingand shall incorporate reported emissions events intoa permanent centralized databasefor emissions events, and that databasemust be accessible tothe public. Notificationsfrom entitiessuch as LCRA, which as a public power utility that 

### issubject tothe provisions of theTexas Public Information Act (PIA), Texas Government Code, Chapter 552, may have emissions events reporting that may contain information that 

### isexempt from disclosurethrough the PIA. Althoughthe commissioncannot make a determination of whether such information 

### isexempt from disclosure, itwill allow these types of entitiesto notifythe commission via fax its Reportable EventIActivity NotificationIReporting Formto the commission~s regional office inwhich the facility 

### is located. The commission may consider the date that the fax 

### is receivedas the compliance datefor meetingthe reportable requirementfor emissions events reporting. This practice must be limited only to reportingof emissions events that contain informationthat either LCRA asserts,
or the Office of the Attorney General has determined, 

### is exempt from disclosure. Not all emissions events from a public power utility may necessarily meet this test. As required by 5101.201(b), afinal report must be submittedelectronically tothe commissionthrough the commission's STEERS reportingsystem, and the original notification date should be included in the narrative portion of the electronic report. All regulated entities not meetingthe exemption through the PIA, as a public power utility, must continueto notify and report emissions events electronically as required by the rules.

HCPHES and Sierra Houston commented that they agreed with the proposed revisions in 5101.201(a)(l

### )(B), (c), and (el

### - (h) regardingthe requirement for providing notifications, records, and reports to local air pollution control agencies with jurisdiction. Sierra Houston commented that itsupports the similar revisions in 5101.21 1(a), (c), (e), and 

## (0.

RESPONSE The commission appreciatesthe support.NRRC, Public Citizen, Sierra Lone Star Club, and MCA commented that all excess emissions should be promptly reported because communities should have a right to know. EIP stated that unauthorizedemissions that do not exceed an RQ may need to be recorded rather than reported. EIP commented that because the proposed rules raise the RQs for a number of air contaminants, they would appear to significantly increase the universe of emissions that will not be promptly reported.

RESPONSE The notification of emissions events that exceed an RQ are required within 24 hours of discovery. This reporting requirement for these potentially significant emissions 

### is both prompt and protective. The rule adopts RQs for certain refrigerants abovethe previous default amount of 

### 100 pounds, and raises the RQ for oxides of nitrogen in certain geographic areas. These revisions are made to address less significant emissions of these compounds. Notification of less significant emissions, those that do not exceed an RQ, would not greatly add to the effectiveness of the program. With the exception of certain emissions events reports that may contain information that is exempt from disclosurethrough the provisions of the PIA, Texas Government Code, Chapter 552, initial notifications will be electronically provided tothe public. Scheduled activities that are reported electronically through STEERS to the commissionwill be electronically available immediately following the conclusion of the scheduled activity.
BPC, TCC, ExxonMobil Downstream, and TIP commented that reporting should be simplified and the initial notification should only contain key information immediately needed by the commission. TCC commented that the rule should be further revised to eliminate additional reporting requirements, and to require only that information needed to evaluate the emission impact and to determine appropriate enforcement.RESPONSE The commissionadopts reductions tothe notification, reporting, and recordkeeping requirements in 8101.201 and 8101.21 1. These rules now require that a minimumamount of information be reported that allows the commissionto makethe initial responseevaluation and to makefinal determinations.

TCC stated that the current requirement to report emissions from eachfacility greatly complicates the reportingprocess, does not add value to the report, and greatly increases the chance for denial of an affirmative defense if reporting 

### isfound to be in error. 

### TIP commented that there should be
no need to collect facility identification number by facility identification informationfor every event, just to see if some might be "excessive."

RESPONSE Inresponse tothese comments and other related comments, the commission reevaluatedthe need to have emissions reportedseparately from each of the facilities involved inthe emissions event or activity. One of the criteria the commission must evaluate to determine excessive emissions 

### isthe impact on human health and the environment. If emissions were reported in total by regulatedentity alone, the commissionwould be unableor .limited in its ability to complete this evaluation. Therefore, the commission revised the reporting requirementto allow emissions to be reported intotal from multiplefacilities, and that those emissions must reported intotal and associatedwith the appropriateemission point(s). This revisionwas incorporated in §101.201(b)(7), and similarly in§101.201(a)(2) and 

### (3), (b)(l), (1)(G), and (b)(2)(G)and in §101 -211(b)(l)(H).Dow commented that the commission should clarify that only one report is required for each emissions event ratherthan a report for each facility, even if the emissions occur from multiple emission points.

RESPONSE Emissions events must be reported by regulated entity, rather than by individual facility, ina single report when they arise from a common cause. However, each facility contributing or emitting unauthorized emissions must continue to be identified. Emissions must be reported in total from each emission point that has unauthorized emissions resulting from the common cause, as opposedto separating and identifying emissions to each facility contributing tothose emissions. During such an emissions event, some regulatedfacilities may experienceemissions events directly from a cause that is not common to other facilities. Inthis situation, these emissions must be notified and reported separately, by the common cause, and can be included ina single notification and final report by the regulatedentity as previously described. For example, lightning could cause a power outage and take twofacilities (Facilities 1and 2) off-line, causinga release of emissions through a flare (Facility 3). Duringthe shutdown of Facilities 1 and 2, an operator might inadvertently and unnecessarily shut down a fourth facility (Facility 4), which also releases unauthorized emissionsthrough Facility 3 (theflare). Inthis example, the
cause for emissions from Facility 4 through the flare would not be common tothe cause of other emissions, the lightening strike, and would therefore require separate notification and final report. The first notification and report would identify Facilities 1, 2, and 3. The reported emissions would betotaled and be attributed to the emissions point, Facility 3 (the flare). The reported emissions would includethe total of the uncombustedemissionsfrom Facilities 1and 2, and the products of combustion at Facility 3 attributable directly from the combustion of gases routed from Facilities 1and 2 tothe flare. The second, separate notification for the inadvertentshutdownof Facility 4 must include the total of the uncombustedemissions from Facility 4, and the products of combustion at Facility 3 attributable directly from the combustion of gases routed from Facility 4 to the flare.
TPA, TxOGA, TIP, and Duke commented that 5101.201 does not incorporatethe intent of 

### HB 2129, to require the reporting of emissions events bythe regulated entity, ratherthan by facility. TxOGA and TIP commented that determiningwhether or not an 

### RQ is exceeded should be based
on the emissions from the regulatedentity, rather than emissions from each of the individual facilities. Duke commentedthat the RQs should be compared to the total emissions from the
common cause event, and not to emissionsfrom each facility involved in an event.

RESPONSE In responsetothese comments and other related comments, the commission reevaluatedthe need to have emissions reported separately from each of the facilities involved inthe emissions event or activity. Oneof the criteria the commission must evaluateto determine excessive emissions 

### isthe impact on human healthand the environment. Ifemissions were reported in total by regulatedentity alone, the commission would be unable or limited in its ability to completethis evaluation. Therefore, the commission revisedthe requirementstoallow emissions to be reported intotal from multiplefacilities, and that those emissions must be reported intotal and associatedwith the appropriateemission point(s). This revision was incorporatedin § 101.201(b)(7), and similarly in 51 01.201(a)(2)and (3), (b)(l)and (1)(G), and (2)(G)and in §101.2ll(b)(l)(H). The commission also amended the definition of "Reportable emissions event" and "Non-reportable emissions event" to reflect that RQs are per any emissions point. In response tothe comments, the commission revisedthe definition of RQ by deletingthe phrase "by facility."TIP commented that a violation should not be issued if a facility involved in an emissions event is failed to be identified, and the faciltty had no emissions point of its own. The commission should return to its practice of requestingadditional information when needed to properly assess an event. TIP commented that at a minimum the commission should only initiate enforcement ifthe owner or operator of a regulated entity fails to report or knowingly or intentionally falsifies information.

RESPONSE The commission, indetermining if emissions events are excessive, must evaluate a number of factors includingthe frequency of a facility's emissions events and the cause of the emissions event. These evaluations require some detailed information on the event, includingthe individual facilities involved. Inaddition, THSC, §382.0215(b)(3)(F) identifies that the processes and equipment involved inthe emissions event is information necessaryto evaluatethe emissions event, and that this information must be reported tothe commission. However, the rule 

### is revised to reflect that minor omissions ina report that do not impair the ability of the commissionto review the emissions event will not be deemed a violation.
Additionally, insome situationsthe regulated entity responsiblefor reportingan emissions event will not control or own the emissions point. Due to the complexity of various interrelationships between regulated entities these situations must be examined on a case-by-case basis. The commissionwill utilizethe following two examples as a baselinefor makingdeterminations of responsibility for notification and reporting of emission events. Example 1: Regulatedentity (RE)-A experiences an upset, and the emissions point 

### is located at RE-B's flare. Inthis example it is the responsibility of RE-A to make all necessary notifications and report the emissions event. Example 2: RE-A experiences an upset, andfeed to RE-2 

### iscurtailed causing RE-2to go off-line. It is RE-2's responsibility to make all necessary notifications and report the emissions event.BPC, TCC, Dow, and TIP recommended that the commission establish a reasonable de 

### minimis quantity of emissions for which no recordkeeping

### is required, stating that recording every insignificantemissions event 

### isan unnecessary and heavy burden for operators and the commission. Dow proposed the following de 

### minimis quantities in which'no recordkeepingis required: 1)events and activitiesthat result in less than one pound of emissions per 24-hour period for air contaminantswith an RQ equal to or greater than ten pounds, but less than 100 pounds; and 2) events and activities that result in less than ten poundsof emissions per 24-hour period for air contaminants with an RQ equal to or greater than 100 pounds. TCC proposedthat no recordkeeping or reporting be required for events and activitiesthat result in less than one pound of a contaminant. Arkema proposed that only the time, date, and the emissionsshould be reported for any emission event where less than 10% of any RQ 

### is emitted. Arkerna proposed that only the location of emissions, date, time, duration, and calculated emissions should be reported for events resulting in emissions between 10% and 100% of the RQ of any compound. Arkema stated that any additional recordkeeping for de 

### minimis events becomes an inefficient use of regulated entity and commission resources with a de 

### minimis impact on air quality.

RESPONSE The commission previously defined 

### de minimis facilities and sources in Chapter 116. That authorizationallows facilities or sources that meet the conditions of one or more of the paragraphs in8116.1 19(a)to be considered 

### de minimis, which meansthat registrationor authorization prior to construction 

### is not required. If any emissions are from 

### de minimis sources, or facilities that are authorized by a PBR, then the owner or operator can calculate whether emissionsfrom those sources meet the 

### de minimisthreshold or emission limit, respectively, and determine whether the emissionsare authorized and reportableor recordable. The commission 

### is bound by THSC, S382.0215, that requires recordkeepingof all emissionsevents. Additionally, incomments to past rulemakingsconcerning the commission's upset and maintenance rules, EPA commented that all unauthorized emissions must be recorded. However, the commissionacknowledgesthat some minor constituents emitted during an emissions event need not be speciated and may be classifiedas "other." This change was incorporated into 

### 81 01.201(b)(l)(C) and (H) and (2)(C) and (H), and 8101.21 1(a)(l)(H)and (I), (b)(l)(H) and (I), and 

### (2)(H)and (I).

ExxonMobil Production recommended that a provision in the rule giving operators atemporary suspension from the mandatory use of STEERS as the reporting system will likely not be ready to accept single notifications and reportsfrom regulated entities required by 

### HB 2129.

RESPONSE The revisionstothe STEERS necessaryto implement the changes for reporting by regulatedentity and common cause will be extensive and also affect the commission's CCEDS. The commission agrees that these changes will require some time to implement and will not be immediately available. However, because of the number of reports received by the commission, and the statutory requirements to receivethe reports through electronic submission, STEERS must continue to be utilized much in its present format. The commission will make its best effort to provide modifications to STEERS reporting on an ongoing basis while working to implement the revised reporting requirements. Inthe interim period, until a single reporting format by regulated entity 

### is implemented, the information required by the rules must be submitted electronically through STEERS, and failure to report according tothe rules can result ina violation.

TCC commented that the initial reporting requirements in §101.201(a)and (b) go beyond that 

### -94-required by the TCAA and what 

### is necessaryfor initial response. TIP and TCC commented that initial reports should require only: 1) name, address, contact name, and phone number of the regulated entity; 2) common name of the process unit or units experiencingthe emissions event; 

### 3) identification of where the emissions are emitted to the atmosphere, such as emission point numbers; 4) estimate of the type and volume of the compounds being emitted that are above an 

### RQ; and 

### 5) date and time of discovery of the event. TIP also commented that there 

### is no need to speciate "VOCs" at this juncture ifan event 

### is reportable. Moreover, information as to the cause of the event 

### is likely to be incorrect uponfurther review. Similarly, information on the actions taken,
or beingtaken, does not appear to be useful for an initial report.

Dow supported the deletion of the requirementto provide the physical location of the point at which emissionsto the atmosphere occurred for initial emissions events reporting, and urged the commission to make this change across all other portions (initial reports, final reports, and final recordsfor non-reportable releases)of these rules.

TxOGA commentedthat for 5101.201 and 5101.21 1, information requestingthe physical location of the point at which emissions to the atmosphere occurred 

### is unnecessary.

TxOGA proposedthat the name of the process unit or facility that caused the emissions event should not have to be listed in the initial 24-hour report because it goes beyond the legislative requirementsfor the initial report and the practical needs of the commission or the public. The
more detailed final reportwill provide the commission with the information needed to evaluate whether the emissions event was excessive and whether the owner or operator claim of an affirmative defense 

### isjustified.RESPONSE The adopted amendmentsto 5101.201 and 5101.21 1reducethe amount of information required for initial notifications of emissions events to the basic level needed to determine appropriate commission response, includingdeletion of the requirement to identify the physical location of the emission point. The notification requirementsfor emissions events do not require the speciation and reportingof compounds other than those that exceeded the RQ. Speciationof all emissions 

### is required only with the final report for evaluation of these events. However, the final reportfor emissions events and the notification for scheduled maintenance, startup, and shutdown activities are revised to requirethat compounds or mixtures of air contaminantswith
an RQ equal or greater than 100pounds and when the emission 

### is less than ten pounds ina 24- hour period can include these contaminantsas "other," and not speciate. The speciationof air contaminants and the physical location 

### is necessary inorder to evaluate impactsfrom emissions.



### TxOGA recommended that the language regardingthe notification be revised to reflect that this 

### is
an "initial (24-hour) notification."

RESPONSE Changes were madeto 5101.201(a)(2), (2)(H), 

### (3),and (4), (c), (e), and (g) in responsetothe comment. The commission agrees that the "initial 24-hour notification" should be used consistently instead of the terms "notification," "initial notification," and "24-hour notification."

Arkema suggested that initial reports be changedfrom 24 hours to "one working day" where a working day would be defined as Monday through Friday, excepting federal and/or state holidays where the commission offices are closed. In addition, Arkema suggested that emergency provisions should be added to indicate that an event where an emergency responder must be

### called still must include afiling of initial reports within 24 

### hours. This 

### is requested because the commission typically reviews reports during normal business hours.

RESPONSE Notifications serve as "notice" to the commission and determine the level of response necessary. A decision to respondand conduct an onsite investigation immediatelyfollowing the initial notification is based on a number of factors. Inaddition, the commission does responses to incidents24 hours a day when this immediacy 

### iswarranted.


### TCC, TxOGA, and TOTAL commentedthat the emissions reported for emissions events under 

### 5101.201 should only identify quantities of unauthorized emissions. TCC stated that reporting the "total" emissions includesthe authorized emission levels and only serves to obscure the significance and impact of the unauthorizedemissions. the reporting of authorized emissions 

### is already included in normal emission inventory reporting.

RESPONSE The commission did not revisethe rule based on these comments. One of the criteriathe commission must evaluateto determine excessive emissions isthe impact on human health and the environment. One of the criteriathe commission must evaluateto determine if emissions are 

# . subject to an affirmative defense 

### iswhether unauthorizedemissions caused or contributed to an exceedance of the NAAQS, prevention of significant deterioration, or a condition of air pollution. As many compounds havethresholds and may be safe at levels belowtheir authorized limits, they may be unsafe when that limit isexceeded. However, many permits do not have emissions limitations for the individualcompound or mixture, therefore, the commission inorder to assess an impact, needs the total emissionsfor those compounds or mixtures. Similarly, theunauthorized emissions when consideredseparately may not reach the exceedance of an NAAQS, but the increase over the authorized limitation can cause the total emission to exceed the NAAQS.

Arkema commented that it supported the addition of "best known" and "at the time of notification" in 5101.201(a)(2)(H).

RESPONSE The commissionappreciates the supportive comment.

EIP commented that 5101.201 should be revised to delete the reference to "if known," stating that it 

### is unnecessary and makes the provision confusing. BPC commented that submitting initial estimates inthe "best known cause" would likely not be accurate and may cause confusion to the public.

RESPONSE The term "if known" makes notifying as to the cause an option for any regulated entity that 

### is reasonably unableto determine a rational cause of the emissions event within the 24-hour notification period.

TCC commented that the additional language in §101.201 is an improvement in recognizing that the cause of the emissions is likely to be unknown at the time a report is required. The owner or operator should not be required to speculate on the cause just to satisfy this report entry. The person making the report may include an underlying observation (suchas a powerfailure or a compressor trip), but the root cause of the triggering event will most likely not be known. Thisflexibility should be clarified in the preamble and reporting guidance and the company should not be penalized for not beingable to reportwhat it does not know. TOTAL commented that 5101.201(a)(2)(H) and 

### (I)should be deleted because, inthe 24-hour time frame for makingthe initial notification a regulated entity will not always be able to provide accurate information to the commission as to the best known cause of the event. Such information should be required only in the final record.



### RESPONSE The term "if known" makes notifying as tothe cause an option for any regulated entity that 

### is reasonably unableto determine a rational cause of the emissions event within the 24-hour notification period. However, in most cases it 

### is reasonabletodraw an educated conclusion as tothe cause, and toverify the root cause inthe final report.

TOTAL commentedthat adescription ofthe actions taken to correctthe emissions event and to reduce emissions 

### is more appropriately provided in the final record.



### RESPONSE A decision to respondand conduct an on-site investigation immediatelyfollowing the initial notification 

### is based on a number of factors. In making this determination, an initial evaluation of the regulated entity's level of response 

### is an important consideration, especially if the event 

### is ongoing.

Duke commentedthat it supported the commission's proposal of 5101.201(a)(3)(D) to remove the requirementto reportthe facility identification number, emission point number, and authorized emission limits for compounds and mixtures that exceed the RQ.RESPONSE The commission appreciates the supportive comment.

ElP recommended revisionsto 5101.201 (a)(2)(E) and (3)(F) and 5101.21 1(a)(2)(G)and (b)(l)(G) to require that sources report both the duration ofthe event causing the excess emissions and the duration of the excess emissionsthemselves. Facilities often complain that the duration ofthe emissions event is not reflective of the amount of time they were actually exceeding emission limits. In addition, such information 

### is sometimes necessary indetermining the extent to which short-term emission limits were exceeded. ExxonMobil Downstream, TCC, TIP, and TxOGA commented that the commission should regulate the reporting and evaluation of emission events and maintenance, startup, and shutdown activities based on the total unauthorized emissions from the event. TCC and ExxonMobil Downstream commented that the comparison oftotal unauthorized emissions from an extended event should be based on the comparison of the maximum emission in a 24-hour period inthe 

### RQ values.

RESPONSE 'The definition of a reportable emissions event in §101.1(88) and the notification requirements for maintenance, startup, and shutdown activities in §101.211(a) are based on a 24-hour period. The initial 24-hour notifications for emissions events are estimates often based on limited information. Notifications for maintenance, startup, and shutdown activities are submitted prior tothe activity and are only an estimate of the anticipated quantity and duration of emissions. Final reports of these events and activities are more accurate and must identifythe overall duration and the quantity of emissions. The commission agrees that, for protection of public health and welfare, the desired information is the duration of the actual unauthorized emissions and makes this suggested clarification. The definition of "emissions event" inTHSC, 5382.0215and in5101.1(28) clearly refersto unauthorizedemissions. The commissiontherefore determinedthat the duration of an emissions event 

### isthe duration of the unauthorized emissions. To ensure that the duration of the unauthorizedemissionsfrom an emissions event 

### is reportedor recorded, 5101.201(a)(2)(E) and (3)(F)and (b)(l)(F)and (2)(F)are amended todelete the word "event." Section 101.21 l(a)(l)(C)and (2)(C)and (b)(l)(C)and (2)(C) are amended to clarify that the duration of the emissions from a maintenance, startup, and shutdown activity is reported or recorded. Inaddition to reporting or recordingthe date and time of a scheduled maintenance, startup, and shutdown activity, the commission amends 5101.21 1(a)(l)(E)and (2)(F) and (b)(l)(F)and (2)(F), to require reporting or recordingthe duration or expected duration of any maintenanceactivity. Nochanges have been made to the rule in responseto this comment requiring makingthe suggested comparison.



### TxOGA proposed that the regulatedentity be requiredto report the air contaminantsthat are "reasonably expected at the time ofthe notification" to have "equaled or exceeded" the RQ; as opposed tothe requirementsto report air contaminants "that are known through common process knowledge, past engineeringanalysis, or testingto have equaled or exceeded the RQ."

RESPONSE Regulatedentitiesare expected to be knowledgeable about their processes and should know what air contaminantsor mixtures of contaminantsare expectedto be released. To provide a description of these emissions based.on this knowledge of processes, past engineering analysis,
or testing 

### isconsidered reasonable.

EIP 

### commented that §101.201(a)(2)and (3)(1)

### should maintainthe requirementthat initial reports include the authorized emission or opacity limit, and requested that the commissionjustify theproposed deletions in the required information for initial reports, such as the deletion of the authorized emission limit or opacity limit, will not impede prompt enforcement action, where necessary, prior to submission of the required final report. In addition, EIP commented that the deleted information is important for determining if prompt enforcement action 

### is necessaryand proceedingwith such action.

RESPONSE Notificationsserve as "notice" tothe commission and determine the levelof response necessary. A decision to respond and conduct an on-site investigation immediately following the initial notification is based on a number of factors. Inmaking this determination, an initial evaluation of the regulated entity's level of response 

### is an important consideration, especially ifthe event 

### is ongoing. The information required for initial notifications inthe rule has been reduced. However, the requirements includethe minimum information necessaryto effectively make these decisions, and will not affect the promptnessfor investigations. Enforcement actions for unauthorized emissions begin after the receipt of the final report, following determinations made by the commissionon the reported information and in accordancewith the provisions of the rule.

EPA commented that 5101.201(a)(2)(G) removes the requirement to reportthe authorized

' applicable emission limits or opacity limitation in initial excess emission reports, and recommended that this revision not be adopted inthe proposed rule. The proposed rule also allows the initial report to substitutefor a final report where "the owner or operator does not submit
a record." Therefore, the authorized emission limit will not be available for any initial reports and will not be available for some final reports. The current 

### SIP reporting rules require reporting of the authorized emission limitation in initial and final reports. EPA questioned howthe commission, 

### -102-EPA, or citizens can effectively evaluate the significance of an emissions event without knowingthe authorized emission limitation, and how the commission will make determinations required by 5101.222 without determiningthe quantity of unauthorizedemissions.

RESPONSE The adopted amendment to §101.201 reducedthe amount of information requiredfor initial notificationsof emissions events tothe basic level neededto determine appropriate response, such as whether an immediate on-site investigation 

### isadvisable. The requirementto provide the authorized emission limit and the authorized opacity limit continuesto be requiredinfinal records in §101.201(b)(l)(H) for emissions events and in §101.201(e)(8) for opacity events. The authorizedemissions limit may be availablefor some initial reports, and is requiredfor all final reports. Determinations required by §101.222 are conducted by the commission following receipt of the final record.

Sections 101.201 and 101.21 1allow initial reportstoserve as final records if the information required inthe final recorddoes not differ from that submitted inthe initial notification. For an initial notificationto serve as the final record, the regulated entity must provide information beyond the minimum notification requirements in §101.201(a)(2) for emissions events and §101.201(a)(3) for opacity events. To clarify this, the commission revised adopted §101.201(c).

A similar revision 

### is not necessary toaddress this issue for final records of opacity events, as §101.201(d) already states that a final recordfor these events 

### is not required "if the notice submitted under subsection (a) of this section contains the information required under subsection (b) of this section."AECT commented that 

### 5 101.201(a)(3)should be revisedto require the identification of each facility with emissionswhen its opacity exceeds the applicable opacity limit by equal to or more than 15°/o that exceed an RQ. AECT stated that this will clarify that for boilers and combustion turbines referenced inthe definition for RQ, the only applicable RQ 

### isfor opacity. AECT also commented that 5101201 (e) should be consolidated into 

### 5 101.201(a)(3)and that 5101201(a)(3)should be revised so that it reads similarly to 5101.21 1 (a)(2).

RESPONSE The definition of RQ referenced inthese rules, specifically the definition in §101.1(89)(C), not only identifies that the RQ 

### isopacity that equals or exceeds 15 additional percentagepoints above the authorized limit, but includes information on the averagingtime, and on the applicable fuels for these units. Rather than repeating or paraphrasing this definition within the rules, the reference tothe definition in5101.1 remains without change. The reporting requirements in §101.201(a)(3) apply to opacity from certain boilers ;nd combustionturbines. The reporting requirements in §101.201(e) apply to all other emitters where opacity equals or exceeds 15 additional percentage points above the authorized limit and where emissions are not subject to the reporting requirementsof §101.201(a)(2). Therefore, the consolidation of reporting requirements was not implemented. The suggestion to revise §101.201(a)(3) so that the language 

### issimilar tothat in 5101.21 1(a)(2)was not implemented. Section 101.211(a)(2) addresses opacity from boilers and combustion turbines, and from other emitters expectingto experience only excess opacity. Section 101.201(a)(3) addresses only opacity exceedingthe RQ from boilers and combustion turbines. No changes were made to §101.201(a)(3) in responseto these comments.

BSA commented that there needs to be more information regarding "best known cause" as required 

### -104-for the initial report in 5101.201(a)(3)(C),since it includes only what 

### is known at that time. The complete report needs to be filed and available tothe public.



### RESPONSE The information submitted inthe initial notificationcan becomethe final report if the information inthat notification continues to be accurate, remains unchanged, and meets the minimum reporting requirementsfor afinal report. Inmost instances, the initial notification

### is preliminary information, requiringthe submittal of a final reportwith the most accurate information available. Both initial notificationsand final reports are availabletothe public.

TxOGA proposed relocatingthe requirements in 5101.201 (a)(4)that regulated that entities provide additional detailed information upon request of the executive director, to 5101201 

## (0,the subsectionthat requires a regulated entity to provide a technical evaluation of emissions events upon the executive director's request.



### RESPONSE The commission revisedthe ruleaccordingtothe commenter inorder to provide better organization of similar requirements.

TCC commented that the commission should take full advantage of the information already associated with the 

### RN and the air account number, further streamlining the reporting requirements. The final report as required by 

### 5 101.201(b) should be specifically focused on reporting the best known emission information at the time of the required final report. Other information regarding the root cause and supporting the affirmative defense may not be finallydeterminable by the deadline for the final report. The reporting procedures in STEERS should allow for updates to information after the "final report" as it becomes available.

RESPONSE The commission recognizesthat the initial report may only include best estimates of emissions and other information. And although final reports should include more definitive information, the commission also recognizesthat more accurate information may also be defined following the submission of the final report. The commissiontypically begins an investigation of the emissions event following receipt of the final report. Although there is no mechanismto continuously update the final reportthrough STEERS, and the commission has not pursued any requirementfor a second "final report," regulatedentities can continue to supply additional information to the commission throughout the investigation of the event.

TxOGA recommended the deletion of 5101.201(b)(l)(K), a requirementto provide the "best known cause" of the emissions event, and the deletion of §101.201(b)(l)(L),a requirement to provide any additional information necessary to evaluate the emissions event. TxOGA stated that the requirement in 5101.201 (b)(l)(L) imposes a vague requirement and that inthe context of information that "must" be identified in the event record, failure to provide some seemingly inconsequential bit of information that commission staff at some later date decides 

### is "necessary to evaluate the emissions event" exposes the regulated entity to potential enforcement. Absent this requirement, the commission still has the authority in 

### 5 101201

## (0 to obtain additional information about the emissions event. Deletion of this provision does not prevent the inclusion inthe report of any additional information that the owner or operator ofthe regulated entity believes will aid in the evaluation of the emissions event.RESPONSE The commission must comply with statutory requirements, including requirements inTHSC, 5392.0216, toevaluatethe cause of emissions events. Because the detailed cause or causes of events may not befully identifiedat thetime of the final report, the requirement in §lOl.20l(b)(l)(J) and (2)(J)

### isto identify the "best known cause" of the event "at the time of reporting." The requirement to provideany additional necessary information toevaluatethe event, information beyondthe minimum reporting requirements, establishes an obligation for the regulated entity to consider if additional information is available and valuable tothat end. Although additional information may be requested as suggested by the commenter, it is important that this obligation residewith the regulated entity. The commission cannot anticipate all potential information that might beavailable and necessary, and identify that information within a finite list of minimum reporting requirements. thecommission is unaware of any previous enforcement actions such 

### as the described scenarioof an after-the-fact determination that additional information was withheld.

TCC stated that the commission proposed significant improvementsin the reduced information required for 

### de minimis emissions, includingthe provisionsthat emissions of compoundswith an , RQ equal to or greater than 100 pounds and total emissions less than ten pounds can be reported
as a group of "other" contaminants without speciation. However, the RQ criteria could be construedto require that all of the compounds in the group must be identified so that the RQ criteria can be evaluated. The commission should clarify in the preamble that all compounds or mixtures in the less than ten-pound emission status need not be specifically identified, but that process knowledge can be used to determine that compounds or mixtureswith RQs of less than 100 pounds are not present. The commission should also consider providinga 

### de minimis level such as 1.0 pound below which no recordkeepingor reporting 

### is required.RESPONSE Both 8101.201 and 8101.21 1allow for this reporting process when the emissions are determined to consist of compounds or mixtures each with an RQ of 100 pounds or less as determined through common process knowledge or past engineeringanalyses or testing for the presenceof compoundswith RQs of less than 100 pounds, or through testing. When emissions of compounds or mixtures classifiedas "other" through the RQ definition of "other" or those classifiedas "other" by 8101.201 or 8101.21 1requirements together exceed 100 pounds, notification and reportingare required. The commission, however, isbound by THSC, 8382.0215, that requires recordkeeping of all emissionsevents, and 

### is not able to establish a de 

### minimis level of emissions.

Dowsupported the proposed changes to §101.201(b)(l)(G) that allow the grouping of certain air contaminants under the heading of "other" in cases where the 

### RQ isgreater than 100 pounds, or greater and the amount released is less than ten pounds, in a 24-hour period.

RESPONSE The commission appreciates the support.

TxOGA commented that it 

### is unnecessaryto exclude opacity from boilers and turbines in 5101201(b)(l)(G), since this 

### is already excluded inexisting language in subparagraph (G).

RESPONSE The commission agrees that the reference may be unnecessary, but the reference providessome additional clarity, and therefore no changes have been made in response tothis comment.TCC commented that requiring the same method of estimatingemissionsfor permitting or the applicable rule to be used for emission event reporting 

### is not always appropriate or feasible. For example, coolingtower emissions in permits are based on standard factors such as AP-42, however, emission event estimates are more appropriately based on actual monitoring or process knowledge of a process leak. TCC recommendedrequiringthe same methods as used in authorizations to be utilized only "where feasible and appropriate." Arkema commentedthat the method used to obtain authorizationsshould only be used for estimating emissions "whenever possible," and requested assurances that the requirementwould not restrictthe use of better methodsto estimate emissionsfrom one-time events. Duke commentedthat the requirements for the owner or operatorto match the calculation methodology inthe preconstructionauthorizations for a facility involved in an emission event be deleted. Duke commented that emissions from upset events are from non-standard operations that were not contemplated, described, or represented in any construction or modification authorizations.

EPA agrees with the proposed change that requires methods of estimates of total quantitiesof emissions released to be consistent with methods used in the applicable permit, application, rule,
or order of the commission in final reports. EPA suggested that this provision be included in the reporting requirements for initial reports, especially consideringthat initial reports may, in some cases, substitutefor final reports. Sierra Houston commented that 5101.201(b)(l)(H),(2)(H),and (h)(2)should be revisedto state that methods of estimates for emissions for facilities with authorizations "must be consistent" with the methods used in the applicable permit application, rule, or order of the commission, instead of the proposed "should be consistent" language.

RESPONSE The commissionacknowledgesthat not all emissions events result from activities that arecomparable to those that were evaluated to authorize emissions under a permit, rule, or order of the commission. However, in many instances this same method of estimation can yield the best estimation of emissions, and modificationstothe method can be incorporated as necessary to reflect the conditions of the actual emissions. Where emissionsand conditions during an upset
are not similar in nature and composition to those inthe applicable authorization, and for emissions from facilities that are not authorized, regulated entities must identify and utilize other methods based on good engineering practice. Inevery instance, it isthe regulatedaentity's responsibility to utilize good engineering practice and to provide the commissionwith an accurate representation of these emissions. In responsetothese comments, the commission added languagetoadopted 8101.201(b)(l)(H) and (2)(H) and (h)I2) and to 8101.21 1(a)(l)(I) and (b)(l)(l) and (2)(1) to require the use of good engineering practiceand methodsto provide reasonably accurate representations for emissions and opacity.

EIP commented that the proposed language could be interpreted to require that companies report emissions during malfunctions as ifthe malfunction were not occurring. EIP commented that pollution control devices will operate more efficiently when brand new, so the emission control factors used in permit applications, rules, and orders most likely presume a higher rate of control than actually occurs. Yet, the proposed language seems to imply that the company must only calculate the emissions on the basis of its permit, since there 

### is no specific guidance inthe permit
as to when and howto deviate from routine practice when a malfunction occurs. Becausethe methods required by permits, rules, or orders for estimatingemissions may leadto inaccurate emissions estimates, sources should be required to report according to both the method specified in the applicable permit, rule, or order and accordingto the "best technically feasible methods for measuring emissions, taking into consideration the current condition, actual operating practices and maintenance history of the equipment." This would ensure that the commission gets the bestdata possible and 

### is alerted to any inaccurate estimation methods included in permits that may need to be addressed.

RESPONSE The commission is revisingthe ruleto require that the regulated entity identify and utilizethe best methodfor accurately determining emissions, as opposed tosubmitting calculations based
ona number of methodologies. Although regulated entities must report the basis used for determining the quantity of air contaminants, under 51 01.201(b)(l)(l), the commission may require additional information under §101.201(f), as is necessary to determine if the method of estimation was appropriate and satisfactory for estimating the emissions.

EIP commentedthat while the rule 

### is not the appropriate place to correct methods for estimating emissions, the rule should requirethe use of the most accurate emissions estimation method available. In addition, EIP commented that the commission must have the authority to amend outdated permits to reflect new information about the emissions associated with authorized
sources.

RESPONSE Emissions authorizations or limitations are based on the appropriate required level of control in effect at the time of approval. When applications for permit amendments are reviewed, the commission uses the best information available toestimateemissions and determine control methods. The TCAA does not authorize the commission to unilaterally amend permits.

TPA urged the commission to delete 5101.201(b)(2),because it imposes onerous recordkeeping requirements for non-reportable emissions events. There 

### is no justification for the need to increasereporting for these insignificant emissions.

RESPONSE TCAA, 5382.0215, requires that a regulatedentity maintain records of emissions events, and therefore the commission is not makingthe suggested change. The commission has established reporting requirements based on RQs in order to reduce the burden of reporting on the regulated entity, and tofocus investigations on those emissions that may be of a more immediate risk. However, these records are periodically evaluated and can leadtocorrective action to prevent larger unauthorized emissions releases.



### EIP commented that 5101.201(b)(2)should be revisedto require that records of non-reportable events include the basis for determiningthe quantity of emissions as well as the actions taken to minimize the emissions.

RESPONSE The record of non-reportable events must contain the methodof estimating quantities according to §101.201(b)(2)(G). Non-reportable emissions are those with compounds or mixtures that do not exceed an RQ, whether by circumstance or stemmingfrom actions taken by the regulated entity. therefore, there 

### is no requirement to identify actions taken to minimizethe emissions. If this information is important, due to site-specific circumstances ina particular investigation, this information can be requested.

EIP stated that all unauthorized emissions should be reported promptly. EPA guidance requiresthat all excess emissions be reported promptly, citing EPA 1999 Guidance (Attachment pages 4 and 

### 7). However, the commission's rules, including 5101.210(d), include reporting exceptions for certainboilers and turbines, which allow the reporting of only opacity exceedances for those units. These exceptions should be eliminated from the rules.

RESPONSE The commission originally adopted the languagefound in §101.1(88)(C) in 1997 (July29, 1997, issue of the Texas Register (22 TexReg 7040)), which has previously been approved by EPA. The commission explained upon adoption that the definition of RQ was further modifiedfor boilers and combustion turbines fueled by natural gas, coal, lignite, wood, or fuel oil containing hazardousair pollutants at concentrationof less than 0.02% by weight. The only RQ for these units 

### isopacity, which 

### is 15 additional percent above applicable limits. This modification 

### is added in recognition of the fact that boiler and combustionturbine emissions consist primarily of carbon dioxide, nitrogenoxides, water, and small amounts of carbon monoxideand are not acutely harmful if unconfined. The figure of 0.02% by weight 

### issignificant becausetrace contaminants, at this concentrationor less, that might be present in used oil fired in boilersand combustion turbines will generally result inemissions below an RQ inthe event of an upset. Therefore, the RQ for boilersand combustion turbines as previously listed has not been deleted
as suggested.

A regulated entity 

### is not requiredto supply information insupport of an affirmative defense for unreported emissionsfrom boilers and combustion turbines. The emissions from boiler and combustion turbines consist primarily of carbon dioxide, nitrogenoxides, water, and small amounts of carbon monoxideand are not acutely harmful if unconfined. The commission does require the reportingof opacity that exceeds 15% of the authorized opacity because these reports may indicate increased levels of trace contaminantsfrom fuels, and may be important in establishing patterns of poor operating or maintenance practices.Calpine commented that it supports the language in 5101.201 (d), in that owners and operators of certain boilers and combustion turbines are exempt from creating and submitting final records of emissions events under 5101.201 (b)or (c). However, Calpine suggested that the last sentence of 5101201(d) be revised to state that the notice submitted under subsection (a) must contain the information required under subsection (b) ifan initial notice 

### is required. The change would clarify that records and reports generated by a qualifying continuous emission monitoringsystem are sufficient to meet 5101.201 requirements, even ifthe unit 

### is exempt from submitting an initial notice by the definition of 

### RQ in 5101 .l.

RESPONSE To clarify, there 

### is not an exemption from the notification and recordkeeping requirements in §101.201(a) and (b). Section 101.201(d) exempts only the applicablefacilities from submitting a final record, 

### if the excess emission reportingprovidesall of the information required by 5101.201(b).

TCC supported the addition for other gaseous fuels in 5101.201 (d), although the very low threshold values may make this addition of very limited value to most sources..

RESPONSE The commissionappreciates the comment.

TxOGA commented that a regulated entity may experience an excess opacity event without there beinga facility associated with the event, and that §101.201(e)(4)should be revisedto reflect this potential. For example, an exhaust stack for a facility 

### is an "appurtenance other than emission control equipment" for the facility, while a process flare or emergency flare 

### is an emission controldevice ratherthan a facility. The reportwill list the exhaust stack as an emission point.

RESPONSE Inthe example provided, the exhaust stack would be an emission point that is part of a facility, and the flare would be a separate facility. Therefore, no changes have been made in responseto this comment.



### TxOGA commented that 5101.201(e)(4)should be changed to allow initial notifications to be submitted either electronically or by any viable means within the 24-hour deadline, a provision currently available to small businesses. 

### TxOGA also recommendedthat an alternativeto electronic reporting be provided for those situations in which the owner's or operator's server, as well as the commission's electronic reportingsystem, 

### is unavailable due to technical failures or scheduled maintenance.

RESPONSE Notifications required by §101.201(a), (c), and (e) must besubmitted electronically usingthe commission's STEERS, with certain exceptions. Becauseof the number of reports received by the commission, and the need to evaluatethis information inatimely manner, electronic reporting is necessary. Ifthe commission's server is unavailable, reporting may be provided by facsimile to the commission's regional office. Ifthe regulated entity's server is unavailable, and an alternative system is not available, then the report should be submitted by electronic facsimile with an explanation, and an electronic duplicate of the report should besubmitted via STEERS as soon as technically possible. Small businesses meetingthe definition inTexas Water Code, §5.135(g)(2) are not required to submit electronically as 

### this technology may not be at their disposal.TxOGA commented that the statutory requirement for electronic reportingof emissions events, found in THSC, 5382.0215 

### isfor the commission to develop the capacity for electronic reporting and incorporate reported emissions events into a permanent centralized database for emissions events that 

### isaccessible to the public and can be used to identify personsthat repeatedly fail to report reportable emissions events. The statutes do not require the initial 24-hour notifications of emissions events required in 5101.201 (a)to be made electronically. This report normally contains the minimum information needed to alert the commission of an emissions event and would actually be addressed more promptly by the regional office if submitted bytelephone, facsimile, or email. Alternative reporting mechanismswill make it easier for operatorsto comply with initial reporting requirements.

The initial reports should be allowed, but not required, to be made using STEERS. The only meaningful information with regard to the details of emissions events 

### isthe final report required in 5101.201 (c) and (e). The final report 

### isthe only report that should be required to be made using STEERS, made accessible electronically by the public, and used for commission evaluations of emissions events. As provided in 5101.201(c), an owner or operator that chooses to have the initial report serve as the final report may do so by electronically submitting (via STEERS) all of the elements required inthe final report inthe initial report.



### RESPONSE Because of the number of reports received by the commission, and the needto evaluate this information in a timely manner, electronic reportingis necessary. The commission, in practice, has found that electronic reportsare a more efficient method of notification to the regional offices, providea consistent means of receivingthis information, and provide a consistent record of these notifications and reports. The commission, for these reasons, does not proposeto revisethe electronic reporting requirements.

EIP commentedthat 5101.201 (g)should be amended to delete the provision allowingsources that report under 30 TAC 5327.3 to avoid electronic reporting. Allowing these sources to report on paper, rather than electronically, means that some excess emissions are either not beingentered intothe electronic system, which 

### is used to track such emissions, or that commissionstaff are spendingtime entering such emissions into the system. In addition, the regulations should be amended to require electronic reporting for scheduled maintenance, startup, and shutdown activities. The current regulations only require electronic reportingfor emissions events, although it is our understandingthat many sources do report scheduled maintenance, startup, and shutdown activities electronically. The commission should require sources to reportall emissions events and scheduled maintenance, startup, and shutdown activities electronically to make sure that all such emissions are included inthe commission's electronic tracking system.



### RESPONSE The requirement that sources reporting under 

### 8327.3 may satisfy the initial reporting requirements under this rule is strictly a provisionto reduce duplicative reportingrequirements for the regulated community, and at this timethe commission has not decided to requirethe additional electronic reporting requirement. Electronic reportingfor scheduled maintenance, startup, and shutdown activities is currently not a rule requirement, but it isthe normal means of receiving these notifications and has been encouraged bythe commission.

Duke requestedthe following language, "initial notification may be made by phone, fax, email, or STEERS with STEERS being the preferred method of filingthe report," be added to 5101.201(g) in order to give moreflexibility for entities that are in remote locationswith no access to the internet.RESPONSE The commission must comply with the statutory requirement in THSC, S382.0215, which requires electronic reporting for certain notifications. The current reporting requirementsof §101.201 comply with THSC, 5382.0215,

AECT commented that 5101.201 (h)(2)and 5101.21 1(f)(2)should be revised to more clearly describe the exemption. In tlie first sentences of S101.201(h)(2)and 5101.21 1(f)(2),the following words should be deleted: "except for boilers or combustion turbines referenced in the definition of RQ in 5101.1 of this title, that must report only the estimated opacities during the emissions events and durations of unauthorized opacity." AECT suggested that the following sentences should be added to the end of 5101.201(h)(2)and 5101.21 1(f)(2). For S101.201 (h)(2),the new sentence should read: "this paragraph does not apply to boilers and combustion turbines referenced inthe definition of RQ in S101.1 of this title, that must report only the estimated opacities during emissions events and duration of unauthorized opacity." For S101.211(f)(2),the new sentence should read: "This paragraph does not apply to boilers and combustion turbines referenced inthe definition of RQ in 5101.1 of this title, that must report only the estimated opacities during the scheduled maintenance, startup, and shutdown activity events and durations of unauthorized opacity." In addition, AECT commented that since boilers and combustion turbines referenced in the definition of RQ are exempt from the requirements of proposed 5101.201 (h)(2)and 5101.21 1(f)(2),there 

### is no need for such boilers and combustion turbines to be subject to any part of proposed §101.201(h) or S101.21 1(f).

RESPONSE Sections 101.201(h)(2) and 101 -211(f)(2) are revised to not adopt the exemption for boilers or combustionturbines. Boilers and combustion turbinesat major sources are required to reportemissions annually tothe commission's emissions inventory. This also requires these sources at minor facilities located incertain areas to reportthese emissions annually to emissions inventory.
Dow, Duke, and BPC objected to the proposed requirement in 5101.201(h) to submit an annual report for emissions events as an onerous and new reporting requirement. Dow, Duke, BPC, TCC, and Calpine commentedthat the commission already has access to much of this information. Calpine commented that the proposed requirements of 5101.201 (h) and 

### 5 101.2 11

### (f)are duplicative and unnecessary. Emissions inventory reporting by facilities already includesemissions events and scheduled maintenance, startup, and shutdown activity emissions in STEERS reports, on Title V deviation reports, and inthe annual emissions inventory report. Requiringcompanies to submit additional information totaling up information that the commission already has in duplicate 

### isadding additional paperwork requirementsto an already burdensome regulatory program. Calpine commentedthat ifthe commission needs information aboutthe total amount of maintenanceemissions or the total amount of emission events that have occurred at a regulated entity, then surely itcan code STEERS to run reports totaling that information on an annual basis. TPA urged the commission to delete 5101.201(h) because itdoes not provide any more useful information to the commission than what 

### isalready available. This expands the reporting to include non-reportableevents, which are insignificant. TxOGA commented that the provision should be deleted as it 

### is contrary to legislative intent inTHSC, 5382.0215 and 5382.0216.

RESPONSE Unauthorized emissions that are non-reportableare not captured inSTEERS reportstothe commission, and only major facilities are required td submit emissions information within the annual emissions inventory reports. As a result, there 

### is no single ready source for thecommissionto evaluatethe summationof all unauthorizedemissions. Therefore, the requirement was established as the least burdensome and the most efficient method for addressingthis need. Section 101.201(h)(4) providesthat those already reporting this information according to 5101.10 do not needto submit duplicative reports. The commission has the authority to require reporting of emissions for development of an inventory of emissions of air contaminants. 'THSC, 5382.0215 and 5382,0216 do not limit that authority.
Dow, Duke, BPC, and TxOGA commented that with the exception of legislative intent to require emissions event reportingto be based on a regulated entity rather than a facility basis, 5101.201(h) would require all annual accounting of the number and magnitude of emissions events on a facility-by-facility basis. TCC commented that the reportingof this information byfacility 

### is unnecessaryand does not provide any useful information. TCC commented that reportingthis information by emission point number 

### is more appropriate for emission planning in SIP programs.

RESPONSE In response to these comments, § 101.201(h)(l) 

### is revisedto provide that the number of reports 

### is the total reportable and total non-reportable events experiencedat the regulated entity.

TxOGA commented that the requirement in 5101.201(h)would cause a sizeable universe of regulated entities, many of them owned or operated by small businesses, that are specifically exempted by THSC, 5382.0215 from havingto submit reports on non-reportable emissions events, to submit an annual report that i~icludes these non-reportable emissions events in emissions inventory format even though the regulated entities are not now required to provide emissions inventory reports.RESPONSE Unauthorizedemissions that are non-reportable accordingto these rules are not captured in STEERS reportsto the commission, and only major facilities are requiredto submit emissions information within the annual emissions inventory reports. As a result, there 

### is no single ready
source for the commissionto evaluatethe summation of all unauthorizedemissions. Therefore, the requirementwas established as the least burdensome and the most efficient methodfor addressing this need. No change was made in responsetothis comment.

EPA supportedthe state's requirement in 5101.201 (h)to require annual reportingof both reportable and non-reportable emission events for certain sources. EPA commented that this information will assist the state in evaluatingeffective enforcementefforts and will facilitatethe state's SIP planning process.

RESPONSE The commissionappreciates the comment.

EIP commented that the annual report in 5101-201 (h)(2)

### is a significant step forward and should enable the commission and the public to better scrutinizethe operation of each facility. This provision requires sources to report estimated total annual emissions event emissions based upon methods consistent with the methods used inthe permit, rule, or order of the commission. This provision should be amended to require, ifthis estimate differs from the estimate usingthe best available estimation methods, that estimates using both methods be reported.

RESPONSE In response to comments, 5101.201(h)(2) 

### is revisedto provide that good engineering practiceand methods must be usedto provide reasonably accurate representations for emissions and opacity.

TPA stated that the first sentence of 5101.201(h)(3)

### is unclear as to whether it 

### is referencingthe commission's STEERS system.

RESPONSE The commission is currently consideringthe best method for developing a reporting system that will incorporate existing annual emissions inventory reports, not cause duplicative reporting, and incorporate new reportsfrom regulated entities currently not requiredto submit annual reports. The reporting process and guidance will necessarily haveto be provided as the development of the system continues.

EIP commented that the permittingof planned or predictable emissions should ensure that the consequencesof predictable excess emissions on air quality and public health are fully evaluated before the emissions occur.

RESPONSE No revisionsto the rulewere made in responsetothis comment, as it relates directly tothe commission's permittingproceduresand is beyond the scope of 

### this rulemaking.

Dow commented that clarification is needed regardingthe definition of excess opacity event and reporting obligations for instanceswhere a gas flare experiences smoke emissionsfor more than five minutes in atwo-hour period. Specifically, Dow questioned whether these instances are to be considered an excess opacity event; if these instances are associatedwith an RQ exceedance ofanother air contaminant from a flare, should the smoke emission be reported with the 

### RQ exceedance of the other air contaminants; and whether smoke emissions from flares excluded from reporting under the Chapter 101 rules and subject to potential deviation reporting (e.g., deviation from the requirements of Chapter 111, Control ofAir Pollution from Visible Emissions and Particulate Matter) under the Title V permitting program for those sites with Title V permits.

RESPONSE Visible emissions and opacity emissions are two different measureinents of compliance. Opacity 

### isdefined in 5101.1(73) as percent of transitivity of light through a medium. The term "visible emissions" means the ability to detect any visible emissions of contaminants regardless of the opacity. Underthe reporting rules in 5101.201 and 5101.211, excess opacity event notifications
or reportingare applicable only toopacity standards, not to visible emissions.

Flares typically, though not always, are subject to visible emissions standards. Exceedancesof those standards would not require notification of reporting. However, if the flare has an opacity compliance standard then exceedance of that standard by more than an RQ would require notificationand reporting. Reportingand notification for flares will be requiredwhen the specific unauthorizedcompounds or mixtures emitted exceed an RQ.

Division 2: Maintenance, Startup, andShutdown Activities Section 707.27 7 

### - Scheduled Maintenance, Startup, andShutdown Reportingand Recordkeeping Requirements. LCRA expressed concern that notifications of scheduled shutdowns in 5101.21 1(a) give competitive advantage to LCRA competitors or prospective competitors. LCRA suggested addinga subsection that would allow that notifications required by subsection (a) ofthis section, which aremarked as confidential competitive information under Texas Government Code, §552.133(b), be submitted only in a manner that ensures protection of the information from disclosure for a limited period of time. This would be confidential only until the scheduled activity 

### is over and the final report is submitted. LCRA also suggestedtwo alternatives. First, LCRA suggested that the rule be amended and a corresponding change be addedto the commission's STEERS reporting system that would allow for the submittal of electronic information under a temporary claim of confidentiality. The second suggestion would be the development of another submittal method that ensures confidential treatment of the information untilthe final report 

### is submitted, which would be a minimal burden on the commission and LCRA to manage the information, and provides for immediate disclosure of the informationto members of the public when that information 

### is no longer confidential.

AECT requested that the commission include a statement inthe preamble tothe final rule

. confirmingthat the commission will change its practice or policy of placing shutdown and startup notification information on its public database. AECT commented that this information 

### is having a significant negative economic impact on the owners or operators of electric generating facilities when they shut down their electric generating facilities for maintenance because it puts such
owners and.operators at a significant competitive disadvantage. Th.isoccurs because the shutdown and startup notification informationthat 

### is disseminated to the public serves to apprise the companies from whom such owners and operators must purchase replacement electricity.

RESPONSE Notificationsfrom entitiessuch as LCRA, which as a public power utility that is subject to the provisions of PIA, Texas Government Code, Chapter 552, have scheduled activities reports that may contain information that is exempt from disclosure through the PIA. In order to encourageregulated entities to utilizethe electronic reportingsystem, makethe information available to the public ina consistent manner, and address the concern regarding competitive business disadvantage, the commission will develop a process that may allow for timely submissionof confidential information related toa scheduled maintenance, startup, and shutdown activity that would be postedat a later timefor public access.
TxOGA, TCC, Duke, and ExxonMobil Production commentedthat notifications required under 5101.21 1(a)(l)(B) and (2)(B),and the final records required under 5101.21 1(b)(l )(B)and (2)(B), should not be required to include both the 

### RN and the air account number.

RESPONSE The commission is transitioning tothe use and requirement of RNs inidentifying regulated entities. The commission will only require the air account number to be listed when the regulated entity does not havean RN.
TCC, TxOGA, and TOTAL commented that the emissions reportedfor emissions events under 5101.21 1 should only identify quantities of unquthorized emissions. TCC stated that reportingthe "total" emissions includes the authorized emission levels and only serves to obscure the significance and impact of the unauthorizedemissions. The reporting of authorized emissions 

### is already included in normal emission inventory reporting. Additionally, as more emissions from maintenance, startup, and shutdown activities become authorized, it 

### is importantthat the Chapter 101, Subchapter F rules clearly only require reporting of unauthorizedemissions. The reporting of authorized emissions will be covered in normal emission inventory reporting.

RESPONSEThe commission made no changes to the rule based on these comments. One of the criteria the commission must evaluateto determine excessive emissions 

### isthe impact on human health and the environment. Most permits do not have emissions limitations for the individual compound or mixture, and therefore the total amount of emissions for those compounds or mixtures is needed to assess the off-property impacts of the emissions. Similarly, when consideredseparately, the unauthorized emissions may not reach the exceedance of an NAAQS, but the increase over the authorized limitation can cause the total emissionto exceed the NAAQS.

TxOGA suggested revisions that for opacity, the exceedance of the emissions or opacity estimate should be based on the regulated entity, and not on a facility-by-facility basis. TxOGA also suggested that if reporting under 5101.211 

### istriggered by exceeding the estimated emissions or opacity estimate, that it should be for exceeding the estimate by the 

### RQ amount. TxOGA also suggested that the language be revised to anticipate that original estimates could be updated prior to the occurrence of the exceedanceof the estimate and after commencement of the activity. It 

### is often difficult to accurately predict maintenance, startup, and shutdown emissions, and operators have had to compensate by over-reporting estimated emissions to avoid having such activities classified as emissions events. This change 

### will allow operatorsto report more realistic estimates of maintenance, startup, and shutdown emissions inthe prior notifications.

RESPONSE Maintenance, startup, and shutdown activities are plannedactivities that allow regulated entities ample time to evaluate the potential emissions resultingfrom these activities. The commission requires prior notice and estimates of emissions inorder to assess whether the predicted emissions seem reasonable. This allows the commission staff to coordinate with the owner or operator to identify alternatives that will limit emissionswhen the predicted quantity ofemissions seem excessive. Allowing changes during the course of these activities, even after the described coordination efforts, would not promote the goal of reducing unnecessary emissions. When estimated emissions are exceeded, and the emissions are reported accordingto 5101.211, the commission already provides an opportunity for an affirmative defense.



### HCPHES supportedthe proposed changes to 5101.21 1

### (a), (c), (e), and 

### (fl regardingthe additional language of appropriate local air pollution control agency withjurisdiction.

RESPONSE The commission appreciates the supportive comment.


### NRRC, Public Citizen, Sierra Lone Star Club, and MCA commented that all excess emissions should be promptly reported because communities should have a right to know.

RESPONSE Notifications of emissions events that exceed an RQ are requiredwithin 24 hours of discovery. Final reports are requiredwithin two weeks following the end of an emissions event. These



# . reporting requirements for potentially significantemissions are both prompt and protective. Notification of less significant emissions, those that do not exceed an RQ, would not greatly add to the effectivenessof the TCEQ's attention to the emissionsthat are of most concern on both a short-term and long-termbasis. Both initial notifications and final reports are availabletothe public. No change tothe rule was made in response to this comment.



### EIP stated that unauthorizedemissions that do not exceed an RQ may be recorded ratherthan reported and that because the proposed rules raise the RQ for a number of air contaminants, itwould appear to significantly increase the universe of emissions that will not be promptly reported.

RESPONSE RQs are established as a means of determining which emissions riseto the level of concern, i.e., those that must be promptly reported inan initial 24-hour notification. this providesthe information for determining whether to respond and conduct an on-site investigation immediatelyfollowing the initial notification based on a number of factors. As previously discussed, the commission adopted a 5,000-pound RQ for oxides of nitrogen, except in ozone nonattainment, ozone maintenance, early action compact areas, Nueces County, and San Patricio County. The commission determined that oxides of nitrogen emissions that do not exceed the RQ inthese areas do not need to be promptly reported, and must insteadfollow the recordkeeping requirements of the rules. The commission is not raisingthe RQ for non-listed compoundsfrom the default level of 100 pounds to 5,000 pounds.

HCPHES commented that it objected to the language in 51

### 01.21 1(a)that states maintenance, startup, or shutdown activities where the actual emissions exceed the emissions in the notification by more than the 

### RQ are emissions events. The emissions notification referenced in this rule 

### is submitted when the unauthorized-emissionsare expected to equal or exceed the 

### RQ. Adding an additional amount equivalent to the RQ to the unauthorized emissions represented inthe notification before the activity 

### is considered an emissions event is less restrictive then the current rule. HCPHES commented that all emissions above the unauthorized emissions represented inthe emissions notification should represent an emissions event.

RESPONSE The commission revisedthe rule inthis respect to directly incorporate provisions of 

### HB 2129.Dow and Duke supported the proposed changes and agree that additional notifications should only be required ifthe actual amount emitted exceeds the emissions estimates submitted inthe initial notification by more than an RQ.



### RESPONSE The commissionappreciates the supportive comments.

TCC commented that the last sentence of 

### 5101.211(a) should be revised to clarify that owners and operators of a regulated entity with facilities that exceed the emissions or opacity estimate submitted in the notification only need to reportthese as emissions events ifthey have exceeded the estimate by the magnitude of an RQ.



### RESPONSE Inresponsetothis comment, and in order toclarify, the last sentence inadopted 5101.211(a) 

### is revisedto provide that owners and operators of a regulatedentity with emissions events shall report such events as emissions events in accordance with the requirementsof 5101.201 and 5101.222.

TCC and ExxonMobil Downstream commented that notifications for maintenance, startup, and shutdown activities are made prior to the activity and only if unauthorizedemissions are expected to equal or exceed an RQ. TCC suggested that the commission clarify that these activitiesare expected to have emissions less than an RQ, and therefore are not requiredto make prior notifications.RESPONSE Emissions event reporting and recordkeeping requirements are addressed in 8101.201 while scheduled maintenance, startup, and shutdown reportingand recordkeeping requirements are addressed separately in 8101.211. Activities covered in 8101.211 can become subject to 8101.201 requirements, and become emissions events, when the predicted emissions are exceeded. The emissions from activities addressed in 

### 81 01.21 1are not excludedfrom becoming emissions events when the actual amount of emissions exceeds the reported amount by more than an RQ. Therefore, the commission declinesto make the suggested change.

TCC requestedthat the phrase "by facility" be deleted inthe first sentence of §101.211 (a)(l)(H), because emission estimatesand comparison to RQs should be by the emission activity, not by facility.

RESPONSE The commission revisedthe language inthe first sentence inadopted 8101.211(a)(l)(H), to read: "for all emission points involved inthe emissions activity." This isconsistent with other rule languagethat requires reporting by emission points.

TCC requestedthat §101.211(a)(l)(H) be revisedto clarify that the notification for a scheduled maintenance, startup, or shutdown activity must only identify the "unauthorized" compounds or mixtures of air contaminants. For prior notifications, the de minimis quantity is only an estimate. -the intent of subparagraph (H)

### is unclear regardingwhat emissions are to be included in the report. The first part indicates that only the unauthorized emissions that are expected to exceed an RQ are required to be reported. The last sentence refers to reportingemissions that are clearly expected to be below an RQ. If the commission's intent 

### isthat once scheduled maintenance, startup, andshutdown activity 

### isexpected to have any unauthorizedemissions above an RQ, then all of the

' unauthorizedemissions are to be included in the report, this should be made clear in the rule or at least in the preamble. TCC requested adding "expected to be" in the last sentence after "released 

### is less than ten 

# ...."

RESPONSE The notification under 5101.21 l(a)(l)(H) deals entirely with unauthorizedemissions. The estimate inthe notification isthe estimate of all unauthorized emissions. Even if the estimate of these emissions 

### is not exceeded during the activity, the emissions remain unauthorized. Therefore, the referenceto "unauthorized" in 5101.21 l(a)(l)(H) might not provide additional clarity, but rather confusethe issue. Compounds and mixtures of contaminantsthat are not expected to be present inquantitiesgreater than or equal to 100 pounds, and at a rate of less than ten pounds ina 24-hour period, can be reportedas "other." Alternatively, as 

### is currently required, the notification can include a predicted speciation for these emissions.

TCC commented that requiringthe same method of estimating emission be used for emission event reportingas was used in the permittingor applicable rule 

### is not always appropriateor feasible. Many of the maintenance, startup, and shutdown related emissions are special activities that do not
occur routinely. TCC recommendedadding "where feasible or appropriate" to the end of the sentence that starts "Methods of estimates for facilities 

## .. .."

RESPONSE The commission acknowledges that not all emissions events result from activities that are comparabletothose that were evaluatedtoauthorize emissions under a permit, rule, or order of the commission. However, in many instancesthis same method of estimation can yield the bestestimation of emissions, and modifications tothe method can be incorporated as necessaryto reflect the conditions of the actual emissions. Where emissions and conditions duringan upset are not similar in nature and composition tothose inthe applicable authorization, and for emissions from facilities that are not authorized, regulated entities must identify and utilize other methods based on good engineering practice. Inevery instance, it isthe owner or operator's responsibility to utilize good engineeringpractice and to provide the commission with an accurate representation of these emissions. Therefore, the commission revises 

### 8101.201(b)(l)(H) and (2)(H)and (h)(2)and 5101.21 l(a)(l)(l), (b)(l)(l), and (b)(2)(1) to state that good engineering practice and methods must be usedto provide reasonably accurate representationsfor emissions and opacity.

TCC recommended clarifying 5101.21 1(a)(l)(K)

### by adding "expected to be" after "the actions."



### RESPONSE The commission has not madethis change tothe final rule, however, in clarificationthe report should include boththose actions currently being taken and those actions expectedto be taken to minimize the emissions.

Sierra Houston commented that 5101.211(a)(l)~:I), (b)(l)(L)and (b)(2)(L), and (fl(2)should be revised to state that methods of estimates for emissions for facilities with authorizations "must be consistent" with the methods used inthe applicable permit application, rule, or order of the commission, instead of the proposed "should be consistent" language.



### RESPONSE The commission acknowledgesthat not all emissions events result from activities that arecomparabletothose that were evaluated to authorize emissions under a permit, rule, or order of the commission. However, in many instancesthis same method of estimationcan yield the best estimationof emissions, and modificationstothe methodcan be incorporatedas necessaryto reflectthe conditions of the actual emissions. W.here emissions and conditions during an upset are not similar in nature and composition to those inthe applicable authorization, and for emissions from facilities that are not authorized, owners and operators of regulated entities must identify and utilize other methods based on good engineering practice. Inevery instance, it 

### is the owner and operator's responsibility to utilize good engineering practice and to providethe commission with an accurate representationof these emissions. Therefore, the commission revises 

### 51 01.201 (b)(l)(H) and (2)(H) and (h)(2), and 

### S101.21 1(a)(l)(l)and (b)(l)(l) and (2)(1) to state that good engineering practiceand methods must be used to provide reasonablyaccurate representations for emissions and opacity.

TCC recommended changing"experienced" inthe first sentence of 5101.21 1(a)(2)(E)to 

### "is expectedto experience" and "occurred" to 

### "is expected to occur."

RESPONSE The commission has not madethis change tothe final rule. No problems with enforcement regarding notification have been encountered.

TCC recommended revising5101.21 1(a)(2)(1)by replacing "the actions taken, or being taken, to minimize the emissions from the scheduled maintenance, startup, or shutdown activity" with "the actions taken, or expected to be taken, to minimizethe emissions from the scheduled maintenance, startup, or shutdown activity."RESPONSE The commission must evaluatethe notification for these events inorder toassess whether the proposed activities and resultant predicted emissions are reasonable. Inorder todo so, it is necessary to evaluate what steps are plannedto minimize emissions. Since these activities are scheduled activities, it is not unreasonableto require identificationof the actionsthat are planned to occur. Nochange was made tothe rule in response tothis comment.

TxOGA recommended clarifications to $101.21 1

### (b)(l) by revising paragraph 

### (I),adopted as subparagraph (A)from "the name of the owner or operator" to "the name of the owners and operators of regulated entities that were required to notify under subsection (a) of this section because the unauthorized emissions from the activity were expected to exceed an RQ."

RESPONSE It is clear that the name of the owner and operator refers to the description of the owner and operator defined in 5101.21 1(b), and it is not necessary to refer to a separate subsection. Therefore, the commission declines to make the suggested change.

TCC recommended deleting the word "scheduled," adding "unauthorized" after "at which," deleting "will," and changing "occur" to "occurred" in $1 01.21 1(b)(l)(C).

RESPONSE 

### All emissions subject tothese reporting requirementsare unauthorized, and therefore this specific suggested change would not add additional clarity tothe requirements. However, in response tothese comments, the commission changedthe phrase "the scheduled point" to "the points."TCC recommended adding "unauthorized" after "determining the quantity of" and delete "to be" after "air contaminants" becausethis record 

### isfor estimated unauthorizedemissions in 5101-21 -1 (b)(l 

### )(I).

RESPONSE All emissions subject tothese reporting requirementsare unauthorized, and so this would not add additional clarity tothe requirements. The deletion of the words "to be" 

### is unnecessary. Even though these are recordsof estimates, they are also predictions of estimates. No change
was made tothe rule in responsetothis comment.

TCC recommended adding "unauthorized" after "taken to minimize the" because this record 

### isfor estimated unauthorized emissions in 5101.211(b)(l 

### )(K).

RESPONSE All emissions subject to these reporting requirements are unauthorized, and so this would not add additional clarity tothe requirements. No change was made tothe rule in responseto

### this comment.

TxOGA proposedthe following additional language in 5101.21 1(b)(2)as clarification: 

# ".

. .because the unauthorized emissions from the activity were not expectedto exceed an RQ."

RESPONSE The suggested revisions were not incorporatedas the reporting requirements under S101.21 1(a) refer both tothose activities that are expectedto exceed an RQ and also to excess opacity events. Instead of repeating the provisions of §101.211(a), the reference remains.TCC recommended deletingthe word "scheduled," adding "unauthorized" after "at which," and deleting "will," and changing "occur" to "occurred" in 5101.21 1(b)(2)(C).

RESPONSE All emissions subject tothese reporting requirements are unauthorized, and therefore this specific suggested changewould not add additional clarity tothe requirements. However, in responsetothe comments, the commissionchanged the phrase "the scheduled point" to "the points."

TxoGA recommended that 5101.21 1(b)(2)(C) be deleted and subsequent subparagraphs relettered accordingly. The physical location of the regulatedentity 

### is available from the information in 5101.2 1 1(b)(l )(B).

RESPONSE Inthose instances where an activity 

### is scheduledand the owner or operator does not have an assigned RN or air account number, it is not easy to identify the physical location of the site. Section 101.211(b)(l)(B) requires the identificationfor the location of the regulated entity, or "plant site," inthese instances. Section 101.211(b)(2)(C)requiresthe location of the emissions point, within the plant site. Therefore, the second sentence in§101.2ll(b)(l)(B) 

### is revisedto require identification of the location of the regulatedentity, rather than identifying the location of the release.

TxOGA recommended that §101.211 (b)(2)(H) be revised by deletingthe requirementto use.past engineering methods, and add language that would require the use of past engineering analysis or testing to have been released as a result of the scheduled maintenance, startup, or shutdown 

### -136-activity and that were unauthorized. TxOGA also recommendedadding language to limitthe exception for boilers and combustion turbines to opacity from boilersand combustion turbines. This 

### isthe first instance in which the release 

### is not required by the commissionto be broken out by facility. TxOGA concurs with this wording and would object to "by facility" being added.

RESPONSE The suggested changes seem to limit the evaluation of common process knowledge or past engineering analyses tothe scheduledactivity or tothe unauthorized portion of those emissions. Instead, all process knowledge and previous analysis that can identify potential compounds and mixtures of air contaminants should be considered. Therefore, nochange was madetothe rule in responsetothis comment.

TCC appreciates the commission's reduction of emission detailsfor insignificant quantities. With regardto 5101.21 1(b)(2)(H), the commission should clarify in the preamble that all compounds or mixtures in the less than ten-pound emission need not be specifically identified, butthat process knowledge can be used to excludethe compounds or mixtureswith less than 100-pound RQs.

RESPONSE The rule allows for grouping compound or mixtures, withan RQ of 100pounds or less of air contaminants emissions known through engineering analysis or testing, when the amount emitted of those compoundsor mixtures is 100 pounds or less, to be grouped together with the "other" RQ category. When emissions of compounds or mixtures classified as "other" through the RQ definition of "other" or those classified as "other" by 5101.201 or 5101.211 requirements together exceed 100 pounds, notification and reportingare required. The commission is bound by THSC, 5382.0215, which requires recordkeepingof all emissions events.Arkema supported the proposal to not report emissions of less than one pound of a specific compound in 5101.21 1(b)(9)and supports allowingfor small amounts of emissionsto be reported
as "other." Arkema requested an extension of this concept to not require reportingof emissions of less than 1Ol0 of any 

### RQ for any reportable release.

RESPONSE The commission must comply with THSC, 5382.0215, requiring the notification and recordkeeping for unauthorizedemissions. The current reportingand recordkeeping requirements of 5101.21 1 comply with THSC, 5382.0215. The commission made no change in response to these comments.

TxOGA commented that the word "as" should be deleted from 5101.21 1(c) in the phrase "the
owner or operator ofthe regulated entity shall submit a final record as required by subsection (b)of this section tothe commission office for the region inwhich the regulatedentity is located" as it impliesthat subsection (b)specifiesthe manner in which the final record 

### isto be submitted tothe regional office.

RESPONSE The commission revised the languageas suggested.

EIP commented that 5101.21 1(e) should be amended to clarify that the executive director's specification of the amount, time, and duration of emissions that will be allowed duringscheduled maintenance, startup, and shutdown activity does not authorize emissions that are in excess of permit or rule limits or are otherwise "unauthorized."RESPONSE The rules inChapter 101, Subchapter 

### F do not authorize emissions or facilities. Rather, the rules inSubchapter 

### F, Division 3 providefor an affirmative defense for unauthorized emissions resulting from unplanned maintenance, startup, and shutdown activities. The commission is able to review the reported activities prior totheir occurrence and to coordinate with the owner or operator to make certain that efforts are being utilizedto limit those unauthorized emissions. Nochange was made to the rule in response tothis comment.

TCC commented that Subchapter Fonly deals with unauthorized emissions and 51 01.21 1(e) should only address unauthorized emissions. Further emission reductions may be possible by extreme measures, but only feasible methods should be requiredto be considered. TCC recommended adding "unauthorized" after "and duration of" in the first sentence and after "of the
means by which" in the third sentence of subsection (e). TCC also requested adding 

### " feasibly" after the phrase "such emissions cannot" in the last sentence of subsection (e).

RESPONSE The rules inChapter 101, Subchapter 

### F do not authorize emissions or facilities. Rather, the rules inSubchapter 

### F, Division 

### 3 providefor an affirmative defensefor unauthorized emissions resulting from upset events and certain maintenance, startup, and shutdown activities. The commission is able to review the reported activities prior totheir occurrence and to coordinate with the owner or operator to make certain that efforts are being utilized to limit those unauthorized emissions. When reasonable measures are not taken to minimize emissions, the commission may take enforcement action. Failureto comply with the representationsin applications submitted according tothe schedule in §101.222(h)(l) or other standard operating procedures in place at the plant may be consideredas evidence of whether the owner oroperator operated the facilities in a manner consistentwith good practicesfor minimizing emissions, one of the criteria for demonstrating that the affirmative defense in §101.222(b)

# - (e) 

### is met. The commission made no change in response to these comments.
TxOGA, Dow, and Duke recommended that the requirements for annual reporting of emissions from scheduled activities in 5101.21 1

### (flbe deleted, for many of the reasons that were provided in comments relatingto annual reporting requirements in 5101.201(h).

RESPONSE Unauthorized emissions that are non-reportable under §101.201 and §101.211 are not captured inSTEERS reports to the commission, and only major facilities are required to submit this emissions information within the annual emissions inventory reports required by §I 01.1 0. As a result, there 

### is no single ready source for the commissionto evaluate the summationof all unauthorizedemissions. Therefore, the requirement was establishedas the least burdensome and the most efficient method for addressing this need. No change was madeto the rule in response to these comments.

Division 3: Operational Requirements, Demonstrations, andActions to Reduce Excessive Emissions Section 

### 101.22 1

### - Operational Requirements TCC and ExxonMobil Downstream recommended leavingthe "shall" and deleting "must" in 5101.221 (a).

RESPONSE The commission declines to make the suggested change. The wording change to "must" insteadof "shall" is needed to conform tothe drafting standard inthe Texas Legislative CouncilDrafting Manual, November 2004.

Arkema requested that the commissiontake all reasonable steps to harmonize federal startup, shutdown, and malfunction obligations with the regulations subject to this rulemaking, yet understands that the commission does not have the authority to unilaterally grant exemptionsfrom federal standards and these actions may or may not be seen as excess emissions under the commission's regulations.

RESPONSE It

### is unclear what steps the commenter 

### is proposingto address this concern. The commission acknowledges that emission limitations may not be consistent between its authorizations, rules, and orders and those infederal law. For example, in40 CFR §60.49(b), the EPA explicitly requiresthat nitrogenoxide emissions limits under 40 CFR §60.44(b) apply at all times, but the limitsfor particulate matter and opacity apply at all times except during startup, shutdown, or malfunction. For the particulate matter and opacity limits inthese federal rules, the EPA suspends the emissions limits and standards duringthese events and instead requires the owner
or operator to comply with the work practicestandard identified in40 CFR 560.1 1(d) inorder to mitigateemissions during such activities. Compliancewith 40 CFR 560.1 1(d) 

### isdetermined after the event has passed, and 

### is determined on a case-by-case basis usingthe facts surroundingthe event, a practice that 

### is identical with the commission's approach. 40 CFR 560.1 1(d) workpracticestandards, which generally apply duringthese types of events, effectively include the demonstrationcriteria that are contained in 5101.222. The EPA has addressed emissions duringstartup, shutdown, and malfunction similarly inthe nationalemission standards for hazardous air pollutants found in 40 CFR Part 63. In national emission standards for hazardousair pollutants, each subpart identifies whether or not emissions limits apply during startup, shutdown, and malfunction events and requires compliance with a work practice standard duringthose same events when the subpart limits do not apply. The EPA has adopted a more formalized approach to addressingstartup, shutdown, and malfunction related emissions inthe national emission standardsfor hazardousair pollutants, under 40 CFR §63.6(e), by specifically requiringthat the owner or operator develop and operate inaccordancewith a startup, shutdown, and malfunction plan as defined in40 CFR §63.6(e)(3). Ineither NSPS or national emission standards for hazardousair pollutants, where the EPA states that a subpart emissions limit does not apply during startup, shutdown, or malfunction events, the standards likewise do not impose a specific emission limit during the event. Rather, emissions must be minimized and controls operated as best as can be done to minimize emissions. Sections 101.221(d) and 101.222(f) clearly state that the commission's rules do not exempt startup or shutdown emissions from federal requirements or other applicable requirements. No change has been made tothe rule in responsetothis comment.

Arkema stated that clarification 

### is neededto specify that the existing requirements in 30 TAC Chapters 1 11, 112, 115, and 11

### 7are enforceable only during normal operations. Arkema stated that an explanation 

### is needed to explain the relationship between emission limitations during normal operations, and emissions limitations during startup, shutdown, and malfunction and emission events. Arkema commented that Chapter 101 rules should contain a right to petitionthe commission clause for relief from fixed emission standards that did not anticipate regulation startup, shutdown, and malfunction emission events during rule development. The petition would describe the startup, shutdown, and malfunction emissions that need to be addressed beyond the normal operations, the anticipated frequency of these emissionsevents now being documented in the new source review permit process, and afeasibility analysis documenting that the requested emissionlimits during startup, shutdown, and malfunction events are appropriate. Further, the commission would include language in the new source review permit documenting how afacility can obtain a permit shield during documented startup, shutdown, and malfunction events where such emissions during startup, shutdown, and malfunction events do not constitute an excursion of the underlying emission limits.

RESPONSE The commissiondeclines to makethe suggested change. The petition as described by the commenter essentially contains a request for an alternative authorization mechanism, which 

### is beyond the scope of this rulemaking. These rules do not authorize emissions; authorization must be obtained by meetingthe requirementsof a 

### PBR, a standard permit, or a new source review permit. Concurrent with this rulemaking, the commission 

### is proposingrules regarding a variety of optionsto address concerns about obtaining authorization for historically excess emissions.



### TCC and ExxonMobil Downstream commented that in 5101.221(e)the term "facility" has not been deleted, and the preamble should clarify that proof of meeting the demonstration criteria 

### isto be provided for each emission event or emission activity and not separately for each facility.

RESPONSE THSC, S382.0216 allows for the commission to establish an affirmative defense to a commission enforcement action if the emissions event meets criteria defined by commission rule. The criteria in S101.222 do not prescribe what specific proof is required. The owner or operator of the facilities makes its own determination of what information itthinks is sufficient to meet its burden of proof. No change was made to the rule in response to these comments.TxOGA proposed changing the term "facility" to "regulated entity" in §101.221(e)to implement the legislative intent that emissions event reportingfocus on root cause. This change would also avoid any possible misinterpretation that detailed information regarding multiplefacilities 

### is needed to evaluate the event and would indicate that there are no statutory requirements to evaluate individual facility performancefor a maintenance, startup, or shutdown activity.



### RESPONSE The owner or operator of a regulatedentity 

### is necessarily the owner or operator of a facility. This changewould not, in and of itself, indicate that reporting 

### is based on root cause. The reporting requirements in §101.201 and §101.211 for emissions events and maintenance, startup, and shutdown activities have been modified to reduce some reporting, and the commission's implementation of 

### HB 2129, 51 through its 

### STEERS reportingsystem will also reduce reporting. However, detailed information 

### is

### still requiredfor the commissionto comply with the statutory requirementsfor evaluatingthese events and activities. No change was made to the rule in responseto this comment.

TCC and ExxonMobil Downstream strongly supported deletion of the expiration clause in 5101.221Ig).



### RESPONSE The commission appreciates

### this comment insupport of §101.221(g).

Division 3: Operational Requirements, Demonstrations, andActions to Reduce Excessive Emissions Section 107.222 

### - DemonstrationsEIP commented that the affirmative defense for emissions events in 

## 5101.222 remains overly broad and should only apply to commission enforcement action. The FCAA gives citizensthe right to bringan enforcement action and to seek civil penaltiesand injunctive relief for the violation of any emission standard, limitation, or order. Neither the commission nor EPA has the authority to limit citizens' right to bringsuch enforcement action, except as expressly provided by the FCAA. Therefore, the commission rules should clarify that any affirmativedefense 

### is an exercise of the commission's enforcement discretion and cannot impactthe ability of citizens or the EPA to bring their own enforcement actions as provided by the FCAA. Also, the commission 

### is granted statutory authority to establish an affirmative defense for a commission enforcement action, and the commission cannot assume the broaderauthority to create adefense applicable to citizen and EPA enforcement action. EIP commented that although the proposed rule states that the commission will not exempt sources from complying with any federal requirements, this provision applies to the commission's exemption authority, notthe affirmative defense provisions of the rules.



### RESPONSE The commission declinesto makethe suggested changes in responseto this comment. It 

### is not necessaryto include language inthis rulemaking stating authority of citizens to bring enforcement actions under the FCAA. The commission has stated in previous rulemakingsthat its rules are not intendedto nor do they impact citizens' legal rights under the FCAA. The commissionagrees that it 

### isgranted statutory authority to establish an affirmative defense and these rules comply with that authority.

EPA commentedthat excess emissions from startup, shutdown, maintenance, and malfunctions, those in excess of allowable SIP limits, must be considered in determining compliance with emissions limits. EPA commented that assertion of an affirmativedefense to an enforcement actiondoes not relieve the source from liability for aviolation of the SIP, but instead allows the source to avoid civil penalties when certain criteria are met in ajudicial or administrativeenforcement action.

RESPONSE The commission agrees with the commenter.

Houston Sierra commented that it is opposed to allowing an affirmative defense to all claims in enforcementactions brought for these activities, other than claims for administrativetechnical orders and actions for injunctive relief because this rule allows non-reportableemissions events to
never result in enforcement actions.

RESPONSE The commission made no change in response tothis comment. Non-reportable emissions events
are not exempt from enforcement for unauthorized emissions or excessive emissions events determinations. Non-reportable data may indicate a frequent or recurring pattern of unauthorized emissions.
Representative Hochbergcommented that a distinction should be drawn between true upset events and events that can be anticipated.

RESPONSE Changes to6101.222 that distinguish planned and unplanned maintenance, as well as the limitation of the affirmative defense in §101.222(b) to upset events addresses this concern. In addition, the rule providesan incentive for owners and operators to seek authorization for asignificant portion of emissionsthat are currently unauthorized, allowingfor the orderly transition of planned maintenance, startup, and shutdown emissions from a vast number of facilities to become authorized. thetransition schedulewill allow timefor a meaningful review of permit applications. This will allow the commission tofocus its enforcement resources on the unpredictableemissions.

EIP commented that the commission should ensurethat the criteria for demonstrating an affirmative defense in 5101.222 are clear and consistentwith EPA narrowly tailored guidance. This clarity
assures both that companies are accountablefor managingtheir operations properly at all times, and that the commission does not have to devote scarce legal and enforcement resources to arguingover the interpretationof the affirmative defense criteria on a case-by-case, after-the-fact basis during individual investigations. Instead, tothe maximum extent possible, the criteria should be clearly defined by rule. Additionally, clear, narrow limits on qualification for the affirmative defense are necessary because the commission does not count emissions inexcess of 1,200 pounds per hour (Ibshr)toward the annual cap of a facility's emissions of highly reactivevolatile organic compounds, based on the assumptionthat these emissions are unauthorizedand, thus, subjectto enforcement action as non-excessive emissions events under 

### 5 101.222(b). However, ifa company can claim that its emissions above 1,200 Ibshr are part of a non-excessive emissions event, it may assert an affirmativedefense and, thus, be exempt from serious enforcement action.

RESPONSE The commission made no specific changes in responsetothis comment. Changes tothe demonstration criteria in §101.222(b) 

# - (e) are discussed elsewhere inthis preamble. The criteria for demonstrating that an owner or operator has met an affirmative defense are clear and meet EPA's guidance. Unauthorizedemissions of highly reactivevolatile organic compounds reportedinaccordancewith this rule are not afforded any additional or separate consideration than other types of unauthorized emissions. All unauthorized emissions are subject to reportingand recordkeeping requirements and operators have the same opportunity to claim an affirmative defense regardlessof whether they are also subject to a cap for highly reactive volatile organic compound or oxides of nitrogen emissions under another rule of the commission.

EIP commented that both current and proposed rules include a requirementthat sources demonstratethat any emissions for which they assert an affirmative defense did not cause or contribute to an exceedance of the NAAQS, prevention of significant deterioration increments, or to a condition of air pollution. EIP recommendedthat the commission clarify that no emissions events that cause releases of volatile organic compounds inthe areas may qualify for an affirmative defense. A similar clarification should be considered for the Corpus Christi area. GHASP commented that the affirmative defense cannot apply to excess emissions of certain compounds in
areas such as HGBwhere excess emissions from a limited number of sources will cause exceedances in the federal air quality standards.

RESPONSE In2002, the commission adopted lower RQs, and more recently adopted various rules to better control volatile organic compound emissions inthe HGBarea. The rules regarding control of volatile organic compound emissions are necessary tofurther prevent the formation of ozone, particularly inthe ozone nonattainment areas of HGB and BPA. The affirmative defense criteria, if fully met, include actions that the commission has established as the most important actions to take when there are unauthorized emissions. If unauthorized emissions occur, these criteria provide an incentive to minimize emissions to mitigate enforcement. Industry should already be controlling releases, and complying withthe commission's rules regardingcontrol of volatileorganic compound emissions, therefore, removal of the affirmative defense 

### is not warranted. No change has been madeto the rule($ in responseto this comment.

EIP commentedthat the commission declined to apply the same tighter controls on other volatile organic compounds as itdoes on highly reactivevolatile organic compounds in spite of strong evidence demonstrating that several other volatile organic compounds cumulatively account for as much as half of ozone formation inthe Houston region. The commission reasons that existing permitsadequately control emissions of other volatile organic compounds. However, to the extent the regulations governingemissions events allow plantsto routinely exceed their permitted emissions limits during emissions events without facing penalties, existing permitsdo not adequately control emissions of other volatile organic compounds.

RESPONSE The commission does not agree that the emissions events rules allow for routineexceedances of permittedemissions limits during emissions events without facing penalties. theevaluationof whether the commission should require additional controls of other volatile organic compound emissions 

### is beyond the scope of this rulemaking, therefore, the commission declinesto make the suggested change.

TPA suggested that a new subsection be addedto 

## 5 101.222 that would providethat emissions from transportation pipelines are not reportable emissions events, shall not be the subject of a notice of violation or a notice of enforcement by the commission, and that noassessmentof the pipeline, pressure reliefvalve, or other root cause be performed by the commission.RESPONSE The commission made no change in responsetothis comment. The commission acknowledges that the RRC has jurisdiction regarding pipelines, however, the commission hasjurisdiction of air contaminants, and is chargedwith safeguardingthe states's air resourcesfrom pollution by controlling or abating air pollution and emissions of air contaminants. Therefore, emissions of air contaminants from pipelines, whether authorized or unauthorized, remain subject to the jurisdiction of the commission. The commissionfound no basis to exclude emissionsfrom transportation pipelines into ambient air from regulation as emissions events, nor to provide a blanket exclusion from enforcement action and how violations would be analyzed. However, any corrective action requiredfor emissions events would not conflict with pipeline operation and safety as required by the RRC or federal DOT.
Representative Hochbergcommented that the commission should establish specific criteria for the classification of emissions events, not merely repeat the statutory criteria. 

### EIP commented that the commission should retain authorityto decide on a case-by-case basis that additional events qualify
as "excessive," but the rules should include a bright line standard for what 

### is excessive, such as when emissions of a particular pollutant from an emissions event or emissions events exceed 

### a certain percentage of a facility's most recently reported annual emissions of that pollutant.

RESPONSE The commission did not proposechanges to the criteria for excess emissions events in 8101.222(a), and therefore declines to make the suggested changes without the opportunity for comment.TIP commentedthat ifthe commission 

### is havingdifficulty reconcilingthe use of the term "regulated entity" throughout THSC, 5382.021

### 5 with the fact that the legislaturefiled to correct the reference inTHSC, 5382.0216, which directs the commission to establish criteria for determining when emission events are excessive, then itsuggested that the commission remove all referencesto excessive emission determinations from the current rules and go back and begin developing regulationsthat contain criteria more in keepingwith the requirements of THSC, 5382.0216. Thus far, the commission has failed to develop rulesthat contain criteria more in keepingwith THSC, 5382.0216. TIP commentedthat the commission should simply exercise good sense to interpret the provisionsof THSC, 5382.021

### 6 in a reasonable manner, just as it interpretsthe use of the term "facility" in other contexts, toyield a reasonable result. TIP recommended that the commission begin developing rulesthat contain criteria more in keepingwith the requirements of THSC, 5382.021

### 6.

RESPONSE Section 101.222(a) includes the six statutory criteria from THSC, 9382.0216 for determining excessive emissions events. The commissiondid not propose changes to the criteria for excess emissions events 

### in §101.222(a), and therefore declines to makeany suggested changes without the opportunity for comment. Specific thresholds, such as numeric criteria for each of these under consideration, have not been proposed. This 

### is because of the numerousvariables that must be taken into consideration for each emissions event inorder toassess whether those emissions are excessive. For example, emissions events stem from a number of causes and from a number of varying sources. Events can occur in nonattainment areas, in heavily populated areas, and within sparsely populated areas. Development of a comprehensiveset of criteria, or even multiple sets of criteria, toaccount for the numerous sitelcase-specific considerationsfor these events has therefore not been pursued. Instead, the commission has taken the positionthat each emissions event will be evaluated based on the facts surrounding the event as they relate tothe statutory requirements.

HCPHES commented that the commission should add language to §I01.222(a) to include local air pollution control agencies having jurisdiction for determining when emission events are excessive. This would allow the local agency to actively participate in this determination as a partner with the commission and enforce this set of rules while protecting human health and the environment.

RESPONSE The commission's interpretation of 

### this statutory requirement, when first implemented in2002, requiresthe executive director to make these determinations and this rulemaking is not changing that requirement. The commissionwould appreciate any informationa local programwants to provide that would assist in determining what events my be excessive, but declines to add an additional step inthe determination process which could delay these determinations until there 

### isconsensus by bothagencies.

EIP commented that the rulemakingshould require sources to reduce excess emissions to the maximum extent possible through review, planning, and good operational practicesand controls developed through permitting. Furthermore, the rulemakingshould narrowly and clearly define criteria for any affirmative defense for emissions events.

RESPONSE The commission did not make any specific change in response tothis comment. The demonstration criteria accomplishthe goal of addressingthe most important issues associated with ai.r contaminants. Also, although these rules do not provide any form of authorizationforconstructionof facilities and associated emissions, the phasingout of the affirmative defense for planned maintenance, startup, and shutdownactivities in§101.222(h) providesan incentivefor the owner or operatorto seek authorizationand reduce emissions.

TxOGA recommendedthat 5101.222(a) be amended to add language that would provide that an owner or operator of a regulatedentity be given an opportunity to meetwith the executive director or his delegateto discuss any mitigatingfactors prior to an initial determination being made that an emissions event 

### isexcessive. TxOGA also commented that subsection (a) should be amended to clarify that a determination that an emissions event 

### isexcessive must give appropriate weight to all of the specified criteria.

RESPONSE The excessive determinations are based on historical events, andthe owner or operator has had previous opportunitiesto provide such information with each emission event report, and any subsequent enforcement, and at any meetingwiththe executivedirector or his staff. Owners or operators may have opportunitiesto meet with commissionstaff todiscuss mitigatingfactors at several points inthe enforcement process. However, if there are mitigatingfactors that would affect an excessive determination, the commission strongly encourages the regulated entity to submit that information with its initial or final report of the event. Itis unclear what the commenter suggests as what would constitute "appropriate weight" for each of the excessive criteria for excessive emissions events criteria. Since the commission did not proposechangesto this subsectionand there was no opportunity for notice and comment on such changes, the commissiondeclines to make these changes.

TxOGA proposed changes to 5101.222(a)(1)

### - (3) and (5). TxOGA proposed that 5101.222(a)(1),(2), and 

### (5)be revised to require that the owner or operator identify and report only that facility at the regulated entity that 

### isthe "root cause" of the event, stating that this will provide a proper focus for understanding and evaluation of the actual cause of the event and will eliminate reporting of unnecessary and possibly misleading information. In subsection (a)(3),TxOGA proposed adding the phrase "of the unauthorized emissions" to limit the emission information required for consideration bythe executive director. TxOGA reasoned that authorized emissions limits for standard operations in most permits, and particularly in PBRs and standard permits, have no relevance to the emissions from upset events. The emissions from upset events are based on nonstandard operations that were not contemplated, described, or represented in the construction or modification authorizations.

RESPONSE 'The commission declines to make these changes. As discussed previously inthe preamble, the commission needs to have all of the emission information, including information about all emissions, toadequately perform an excessive determination. This is particularly important to determining possible adverse off-property impacts. Emissionsevents reporting requirements are in 5101.201; §101.222(a) liststhe criteria for the excessive determination, rather than any reporting requirements. Since the commission did not proposechanges to this subsectionand there was no opportunity for notice and comment on such changes, the commissiondeclinesto makethese changes.

Arkema commented that various sections of the proposed rulemaking, such as 5101.222(b), state that the affirmative defense is available to all claims in enforcement actions other than claims for administrative technical orders and actions for injunctive relief. Arkema requested that this defense be available for all enforcement actions includingadministrative technical orders and actions forinjunctive relief.

RESPONSE 

## he commissiondeclines to makethis change. EPA policy extends the affirmative defense only to administrativepenalties. Inaddition, although the commissioncan use its enforcement discretionas towhether corrective action and injunctive relief will be pursued, the commission does not want to permanently waive this type of enforcement authority for emissions events.

Arkema supported the revisionsto §101.222(b)(I)and other conformingchanges that instructthe commission to not initiate enforcement for minor reporting emissions or inaccuracies. Arkema also supported the commission simplifying the enforcement criteria for emissions events described in the proposal preambleand the modifications deleting the reporting of authorized limits and opacity limits in the emission event reports. Arkema 

### isconcernedwith the enforcement status of emission events that clearly are not caused by externalities that cannot be predicted, such as acts of God (hurricanes, storms), loss of publicly supplied utilities (electricity, water) or events or incidences in the community. Arkema requestedthat the commission maintainthe affirmative defense for these events and any others initiated outside the control of the facility managingthe event.

RESPONSE The commission appreciates the support. Certain unauthorizedemissions that would otherwise be a violation of a statute, rule, or permit within the commission's jurisdiction that were caused

I - - by an act of Cod, war, strike, riot, or other catastrophe, are not violations under Texas Water Code, 57.251. This 

### isan existing statutorydefense that has historically been availableto owners and operators of facilities with unauthorized emissions and is not limited by these rules. However, the majority 

### of unauthorizedemissions are not covered by this defense and remainunauthorized.

TCC and ExxonMobil Downstream appreciated the effort to clarify in 5101.222(b)(1) that minor omissions or inaccuracies that do not impair the commission's ability to review the event should not be cause to invalidate the notification and initiate enforcement. TIP suggested that the rule should be revisedto clarify that formal enforcement is not the appropriate remedy for reports that may inadvertently exclude information or contain imprecise information. TIP recommended that the word "facility" be changedto "regulated entity" so the commission only initiates enforcement if the owner or operator of afacility of a regulated entity fails to report or knowingly or intentionally falsifies information.

TxOGA proposed that the commission add language to 5101.222(b)(1) stating specifically that the commission will not initiate enforcement for failure to report, and the owner or operator will not be deemed to be in violation or lose eligibility for an affirmative defense, solely on the basis of minor omissions or inaccuracies that do not materially impair the commission's ability to review the event. TxOGA stated that this provision 

### is badly needed because such minor clerical errors have, in the past, resulted in the issuance of notice of violations and/or notice of enforcement and a denial of an affirmative defense claim. Specifically, TxOGA stated that this has been a particular problem with the initial repolt, which often has to be hurriedly preparedto meetthe reportingdeadline. 'these changes will take the pressure off the industry field personnel who need to make weekend or after-hours reports and allow them to focus on addressing the physical problems associated with an emissions event instead of worrying about getting all ofthe paperwork details exactly correct. Addition of the word "materially" recognizes that a strict interpretation of this provision would
cause the denial of virtually every claim for an affirmative defense ifthe emissions event report contained any error or inaccuracy whatsoever.

### RESPONSE The rule clearly statesthat failure to report as requiredby §101.201(a)(2) or 

### (3), (b), or (e) will
cause the commissionto initiate enforcement, except when the failure consists of minor omissions or inaccuraciesthat do not impair the commission's ability to review, and it 

### is not intentional falsification or knowingomissions. The commission appreciatesthe support for the additional language regarding enforcement, but declines to add the word "materially" because the rulespecifies that the missing information 

### is limited to minor omissions or inaccuracies that do not impair the commission's ability to reviewthe activity or event. Inaddition, there 

### is no need to specify inthe rule that formal enforcement 

### is not the remedy or that no enforcement will betaken when reports may inadvertentlyexclude information or contain imprecise information becausethe enforcement determinationsare based on a case-by-case review of the facts. Exclusion of some information could possibly result informal enforcement. The commissionalso declines to change the term "facility" to "regulated entity." The commission retains the enforcement flexibility to cite either the facility owner, or the regulated entity, which 

### isthe owner or operator of a facility. The new language providesthe remedy sought to minimize enforcementfor minor omissions and inaccuracies.

AECT supported the commission's proposed revisionto §101.222(b)(l),(c)(l),(d)(l),and (e)(l). However, AECT commented that §101.222(b)(1)should be revised as follows to make it
more consistent with the proposed sentences in §101.222(~)(1), (d)(l),and (e)(l): "Moreover, failure to include in such a report information that does not impair the commissioner's ability to review the event accordingto this rule will not result in enforcementand loss of opportunity to claim the affirmativedefense, unless the owner or operator knowingly or intentionally falsifiedthe information in the report." AECT commentedthat the revised languagewould be consistent with THSC, §382.0216(i).RESPONSE The commission appreciatesthe support, but declines to make the suggested changes. The amendmentto 5101.222(b)(l) moves language from 5101.201(h) to better clarify when the commission will initiate enforcement for failure to report and for the underlyingemissions event itself. Section 101.222(b) does not apply to minor omissions or inaccuraciesthat do not impair the commission's ability to review the event according tothis rule, unless the owner or operator knowingly or intentionally falsified the information inthe report. The commission revised 5101.222(~)(1), (d)(l), and (e)(l) to specify that the missing information is limited to minor omissions or inaccuraciesthat do not impair the commission's ability to review the activity or event. Therefore, these changes are expected to minimize enforcement actions for minor reportingviolations.



### EIP commented that the criteria in 5101.222(b) should be amended for clarity and consistencywith EPA guidance. Specifically, 5101.222(b)(2)should be amended to state that the unauthorized emissions were caused by a sudden, unavoidable breakdown of equipment, beyond the control of the owner or operator.

RESPONSE The commission agrees with EPA and added the term "unavoidable" to 5101.222(b)(2). The commission has limitedthe scope of emissions eligible for the affirmative defense in 5101.222(b) tothose which are non-excessive upset emissions, rather than all non-excessive emissions events. Unavoidable breakdowns arethose of the emergency type, rather than those that are due to lack of maintenanceand planning, and therefore are within the scope of this type of emissions.

TxOGA proposed that 5101.222(b)(2)should be amended to provide that the breakdown, ratherthan the unauthorizedemissions, was beyond the contiol of the owner or operator of the regulated entity makingthe claim of an affirmative defense. 'the current language would deny a claim of an affirmativedefense in the absence of a sudden breakdown of equipment of process over which the
owner or operator of the equipment or process had control. An emissions event at a regulated entity often occurs as the result of a breakdown of some off-site equipment or process under another person's control (e.g., an emissions event at an oil or gas production lease caused by a power failure or by a breakdown at a downstream pipeline or natural gas processingplant).

RESPONSE Section 101.222(b)(2) states that "the unauthorizedemissions were caused by a sudden breakdownof equipment or process, beyondthe control of the operator." The commission clarifies that it 

### isthe sudden breakdownof equipment or process that 

### is referencedor described
as being beyondthe control of the operator. Therefore, no revision of the rule 

### is necessary.

TCC and ExxonMobil Downstreamappreciated the improvement in the language in 51 01.222(b)(3) to assure that the criteria 

### is reasonably achievable. TxOGA proposed languagefor 5101.222(b)(3), which would provide that the unauthorized emissions did not stem from any activity or event that could have been foreseen and avoided, and could not have been reasonablyforeseen and avoided by technically feasible design, operation, and maintenance practices consistentwith good engineeringpractice. EIP commented that 5101.222(b)(3)should be amendedto state that the unauthorizedemissions did not stem from any activity or event that could not have been foreseen and avoided or planned for, and could not have been avoided by better operation and maintenance practices.RESPONSE The commission made some changes in responseto these comments. The adopted amendment to §101.222(b)(3) does not include the proposed reasonablenessstandard for determining this criteria. The commissionconsiders site-specific information, what led to the cause of each event, and the actions taken, such as operator planning and maintenancepractices. Adding the term "reasonably" does not establish a new standardor criteria specific threshold that the commissiondoes not already consider, and could add another level of uncertainty indetermining whether the criteria are met. The adopted amendment revises the criteria to add that the unauthorized emissions did not stem from any activity or event that could have not only been foreseen and avoided, but also planned for. The adopted amendment also changes the criteria of "could not have been avoided by good design, operation, and maintenance practices" to "could not have been avoided by better operation, and maintenance practices or by technically feasible design consistent with good engineering practice." This change more properly places the emphasis on action by the operator on operation and maintenance, and the criteria of what 

### is technically feasible and the application of good engineering practices on the design of the facilities.
Arkema requested that the commission clarify in §101.222(b)(3)what constitutestechnical feasibility ina manner that includes cost-effectiveness in a technical feasibility determination. Arkema suggested that the commission use existing common industry practices for determining technical feasibility, such as how the commission would evaluate technical feasibility for a control device determination duringthe new source review permit review process. TxOGA proposed languagefor §101.222(b)(3), which would providethat the unauthorized emissions could not have been reasonablyforeseen and avoided by economicallyjustifiable design, operation, and maintenance practices consistent with good engineering practice.

### RESPONSE The commission declines to make the suggested changetoadd a reference tothe costeffectiveness as a specific part of the criteria. "Technically feasible" now modifies only the designthat must be consistent with good engineering practice. Common industry practices are considered during the analysis for this criteria.

TxOGA stated that 5101.222(b)(3) should also provide an economic reasonablenesstest. It is not reasonable, for instance, for a regulated entity operating inTexas to ensure that there will never be any freezing problems for its external piping by applying the same heating or installation technology as are required to be used for a similar entity operating in Alaska. Similar languagewas proposed byAECT.



### RESPONSE The commission declinesto makethe suggested changetoadd a reference tothe costeffectivenessas a specific part of the criteria. "Technically feasible" now modifies only the designthat must be consistent with good engineering practice. Common industry practices are consideredduringthe analysis for this criteria.

EPA commented that 5101.222(b)(3) revisesthe existing SIP-approvedcriteria that a source must prove in order to assert an affirmative defense. The requirement to prove that the event could not have been avoided by better operation and maintenance practices 

### isa fundamental principle which EPA considered in drafting its 1999 startup, shutdown, and malfunction guidance. The proposed change adds a level of subjectivity that limits EPA, citizens, and the commission's enforcement authority. The proposed change also decreases the source's responsibility to anticipate and eliminate releases of excess emissions. The change isa weakening ofthe existing SIP provision.RESPONSE The commission made some changes inresponsetothese comments. The adopted amendment to 

### 5101.222(b)(3) does not includethe proposed reasonableness standard for determining 

### this criteria. The commission considers site-specific information, what led to the cause of each event, and the actions taken, such as operator planning and maintenancepractices. Adding the term "reasonably" does not establisha new standardor criteria specific threshold that the commission does not already consider, and could add another level of uncertainty indetermining whether the criteria 

### is met. The adoptedamendment revises the criteria to add that the unauthorized emissions did not stem from any activity or event that could have not only been foreseen and avoided, but also planned for. The adopted amendment also changes the criteria of "could not have been avoided by good design, operation, and maintenancepractices" to "could not have been avoided by better operation, and maintenance practices or by technically feasible design consistent with good engineeringpractice." This change more properly places the emphasis on action by the operator on operation and maintenance, and the criteria of what 

### is technically feasible and the application of good engineering practices on the design of the facilities. these changes meet EPA guidance for SIP approval of affirmative defense criteria for upset events.



### EIP commented that §101.222(b)(5)should be amended to add that off-shift labor and overtime must have been utilized, to the extent practicable,to ensure that repairswere made as expeditiously as practicable.

RESPONSE The commission declines to make this change. These factors may be relevant insome cases and will be considered in analyzing for this criteria. The use of off-shift labor and overtime toachieve compliance 

### is not an assurance that the activity will qualify for an affirmative defense.

EIP commented that §101.222(b)(6) should require that emissionswere minimized to the maximum extent practicable. 

### EIP commented that §101.222(b)(7) should add the requirementthat all possible steps were taken to minimizethe impact of the unauthorized emissions on ambient air quality.

RESPONSE The commissiondeclines to make the suggested changes to §101.222(b)(6) and (7). However, as previously discussed, the commission included the suggested changeto §101.222(b)(7) as an addition to §101.222(b)(6). The commission determinedthat, inaddition to requiring that the
owner or operator minimize the amount and duration of emissions, that all possible steps should be taken to minimize the impact of the unauthorized emissions on ambient air quality.

TxOGA proposed deleting the references to exceedances of the 

### NAAQS and prevention of significant deterioration increments in §101.222(b)(11). TxOGA stated that, based on the definition of "air pollution" inthe TCAA, this language 

### is redundant in this demonstration. A strict and literal enforcement of the current provision would require modelingand air quality monitoring data to be submitted for every emissions event. Deletingthese terms, as proposed by TxOCA, would give the commission the discretion to determine when such data 

### is actually needed to make the required demonstration without havingto require such information in all instances.

RESPONSE The commission declines to make this change. The commission specifically expanded the existing language previously in §101.11(a)(9) when this language was adopted in2002: 'Previously, §101.11(a)(9) was a test of whether the emissionsfrom an event caused or contributedto a condition of air pollution. In2002, this languagewas added toaddress comments made by EPA (September 6, 2002, issue of the Texas Register (27 TexReg 8499)). Section 101.222(b)(11) does not require modelingand monitoring data be submitted for every emissions event.

TCC and ExxonMobil Downstream recommended deleting all of 5101.222(b)(12), statingthat there is noadvantage to willfully not making a notification for a planned maintenance, startup, and shutdown activity. This criteria has no benefit and only serves to create another uncertainty about qualifyingfor an affirmative defense. Similar comments were made by Dow and Duke.

RESPONSE The commissiondid not adopt the language proposedto be added in 5101.222(b)(12). This criteria 

### is no longer needed insubsection (b) due tothe restructuring of 8101.222 to incorporate the concepts of planned and unplanned maintenance, startup, and shutdown activities. By definition, maintenance, startup, or shutdown emissions that are not reported prior to their occurrence are considered unscheduled, and therefore are emissions events. Therefore, because these are a type of unplanned maintenance, startup, and shutdown activities, the appropriate criteria for an affirmative defense are those in 5101.222(c), rather than those in 5101.222(b). Unscheduled maintenance, startup, and shutdown activities must be reported as emissions events as required by 5101.201. Also, if the owner or operator wants to assert an affirmative defense, that owner or operator must demonstrate not only that the notification requirementsof §101.201 were complied with, but also that reporting under §101.211(a) was not reasonably possible, as well as the remaining criteria in §101.222(~)(2) 

# - (9).TCC and ExxonMobil Downstream appreciated the new language in §101.222(c)to add clarity that scheduled startup and shutdown activities that meetthe criteria are subject to an affirmative defense. TCC and ExxonMobil Downstream recommended not deletingthe word "maintenance" in the first and second sentences. TxOGA proposedto insert maintenance back into this subsection, stating that it 

### is not a reasonable approachto separate maintenancefrom startup and shutdown. Permittingof scheduled maintenance, startup, and shutdown activities should be allowed and encouraged, butthe commission should not do away with the affirmativedefense for most unpermitted scheduled maintenance, startup, and shutdown activities.

EIP commented that the proposed rule expressly applies the affirmativedefense to scheduled startup and shutdown activities. If startup and shutdown activities are part of a normal operation and can be scheduled, the emissions generated should be includedwithin a facility's permit and should not be subject to an affirmativedefense.

EIP commented that eliminating the affirmativedefense for scheduled maintenance, startup, and shutdown activitieswill still leave in place the defense for unscheduled maintenance, startup, and shutdown activities in §101.222(b). EIP expressed that itwill take time and permitting resourcesto ensure that emissions from all scheduled maintenance, startup, and shutdown activities is included in permits. therefore, it 

### is EIP's positionthat although an affirmative defense for scheduled maintenance, startup, and shutdown activities 

### is illegal, the commission could include in its rules a clear statement that it will exercise its enforcement discretion to not seek penalties for unauthorized emissions due to scheduled maintenance, startup, and shutdown activities during a phase-in period. the rules should clearly state that once a facility's scheduled maintenance, startup, and shutdown activities have been evaluated through permitting, all excess emissions due to scheduled maintenance, startup, and shutdown activitiesare subject to the full range of possible enforcementaction. In addition, the rules should include a schedule that would require those types of facilities that typically have the largest unauthorized emissions due to scheduled maintenance, startup, and shutdown activities to come in first for permitting.

RESPONSE The commission made changes in response tothis comment. As discussed inthe SECTION BY SECTION portionand elsewhere inthis preamble, the commission incorporated the concepts of plannedand unplanned maintenance into 

### 5 101.222. Specifically, in

### 5 101.222(c), maintenance has been retained, but this subsection has been revisedto provide an affirmative defensefor unplanned maintenance, startup, and shutdown activities rather than for scheduled maintenance, startup, and shutdown activities. Furthermore, the commission addressedthe issue of excess emissions that could be authorized in 5101.222(h) 

## - (j).

EIP commented that peaking electric generator units and batch plants are currently required to include emissions from scheduled maintenance, startup, and shutdown activities in their permits. Commission staff have represented that the current rules are fully effective in minimizingemissions during planned startup and shutdown activities when those activities meet the affirmative defense criteria. EIP disagreed that an after-the-fact affirmative defense demonstration 

### isthe most practical and effective means of implementingthe FCAA requirements that best available control technology be applied and that ambient air quality and health impacts be considered.

RESPONSE The commissionagrees that a case-by-case review of emissions from maintenance, startup, and shutdown and application of best available controltechnology (with evaluation of off-property impacts) 

### is preferred over a review of these emissions after the fact. Emissions from plannedmaintenance, startup, and shutdown activities at certain peaking electric generating facilities and batch plants have already been reviewed and included inthose authorizations, and the loss of the ability to claim an affirmative defensefor these scheduled activities will providean incentive for owners or operators toseek authorization for these activities. Duetothe large number of facilities that will need to

### be reviewed for planned maintenance, startup, and shutdown activities, the commission developedthe schedule contained in

### 51 01.222(h)(1), and is proposing ina concurrent rulemaking, several options for authorizing these activities depending on the quantity and natureof the emissions. However, a permit review is notalways a practicaloption given the predictability of the emissions. Inthose cases, the commissionfinds that the affirmative defense criteriaarethe best optionto ensure minimization of the emissions.

EIP stated that the commission has the statutory authority to create only an affirmative defense for emissions events, which includes emissions from upsets and unscheduled maintenance, startup, and shutdown activities 

### CTHSC, 5382.0216(f) and (g)). Therefore, the commissiondoes not have the authority to create an affirmativedefense for scheduled maintenance, startup, and shutdown activities.

EIP requestedthat the commission eliminate the affirmativedefense for scheduled startup and shutdown activities and requirethat such emissions be considered and limited through permitting. Any affirmativedefense for scheduled startup and shutdown activities should be eliminated from the rules. To the extent that the rules maintain an exemptionfor unscheduled startupand

. shutdown activities that 

### is different from that for emissions events, the following changes should be made to the start and shutdown affirmative defense criteria for clarity and consistency with EPA guidance.AECT commented that it agrees with the proposed revision to §101.222(c). However, AECT suggested that the rule language be revised based on the past statements made by the commission in the January2, 2004, Texas Register (29TexReg 118). AECT commented that each scheduled maintenance, startup, or shutdown activity that meets the criteria in 5101.222(c) 

### is considered by the commission to be authorized byvirtue of meeting such criteria. AECT suggested that 5101.222(c) be revisedto add the language as follows: "Emissions from any scheduled maintenance, startup, or shutdown activity that exceed any air emission limitation in a permit, rule, or order ofthe commission or as authorized by THSC, 5382.0518(g),are authorized 

### ifthe owner or operator proves all of the following criteria are met."

RESPONSE The commission declinesto make this change. Section 101.222(c), as adopted by the commission on December 17,2003, which was published inthe January2,2004, issue of the Texas 

### Register (29 TexReg 118)did not provideauthorization for these emissions. Rather, the rule providedthat the emissions were required to be permitted, unlessthe demonstration criteria were proven. The rules inChapter 101, Subchapter 

### F, Division 3, and the predecessor rules in S5101.6, 101.7, and 101.11 (repealed effective September 12,2002) have not and do not authorize any emissions. All air contaminant emissions are authorized under Chapters 106 and 116.

Duke recommended that the words "maintenance, startup, and shutdown" be added to modify the term "activity" in 5101.222(~)(1).

TxOGA recommendedthat 5101.222(~)(1) be revisedto add the word "materially" to modify "impair the commission's ability to review." TxOGA stated that addingthe word "materially"recognizes that a strict interpretation of this provisionwould cause the denial of virtually every claim for an affirmative defense if the emissions event report contained any error or inaccuracy whatsoever. This change will provide the commission the abilityto recognize a minor problem with the report and resolve the problem (e.g., by telephone or email) with the regulatedentity
owner or operator without the owner or operator receiving a notice of violation/notice of enforcement or forfeiting a claim of an affirmative defense. TCC and ExxonMobil Downstream appreciated the effort to clarify that minor omissions or inaccuraciesthat do not impairthe commission's ability to review the event should not be cause to invalidate the notification and
cause a loss of the affirmative defense.



### RESPONSE The commission declines to makethis change. Similar languagewas added to §101.222(b), (c)(l), and (e)(l). The commission revised §101.222(~)(1), (d)(l), and (e)(l) to specify that the missing information 

### is limitedto minor omissions or inaccuraciesthat do not impairthe commission's ability to review the activity or event.

EPA commented on 5101.222(c), stating that the proposed criteria deviated significantly from EPA guidance. The changes add a level of subjectivity that limits EPA, citizens, and the commission's enforcement authority. The proposed changes also decrease the source's responsibility to anticipate and eliminate releases of excess emissions. EPA strongly recommended that the criteria be revised. Both EPA and EIP commented that 5101.222(~)(2) should be revised to provide that periods of unauthorized emissionsfrom the activity were short and infrequent and could not have been prevented through careful planning and design.RESPONSE The commission declines to makethis change. However, the commission conducts case-by-case reviews of these excess emissions activities, including a review of the lengthand frequency of the reported activity and similar activities for the facility, taking into consideration the natureof the activity, size of the facility, as well as facts relatingto planning and design.

TCC and ExxonMobil Downstream commented that the words "periods of" in 5101.222(~)(2) are unnecessary and only raise questions of intent and should be deleted. The prevention criteria should only consider whether feasible planningand design would have preventedthe unauthorized emissions, and should not imply that infeasible efforts should have been made, and recommended adding the word "feasible" after the phrase "have been preventedthrough."

RESPONSE Nochanges have been made in response tothese comments. The phrase "periods of" clearly refersto a span of time, indicatingthat the entire period of time for which the unauthorized emissions existed must be considered in determining compliance with this criteria. the commission does not agreethat the rule implies that infeasible efforts should have been made.

TxOGA and AECT suggested that the term "reasonably" be added to modify "have been prevented" in 5101.222(c). In addition, TxOGA stated that the rule should also provide an economic reasonablenesstest. It 

### is not reasonable, for instance, for a regulated entity operating inTexas to
ensure that there will never be any freezing problems for its external piping by applyingthe same heating or installation technology as are required to be used for a similar entity operating in Alaska.RESPONSE Nochanges have been made in response tothese comments. The commission considers sitespecific information for the activity, includingthe specific planning for the activity. Adding the term "reasonably" does not establish a new standard or criteria specific threshold that the commissiondoes not already consider, and could add another level of uncertainty indetermining whether the criteria is met. Inaddition, the commission declinesto make the suggested change toadd a reference tothe cost-effectivenessas a specific part of the criteria. "Technically feasible" now modifies only the designthat must be consistent with good engineering practice. Common industry practices are considered during the analysisfor this criteria.

AECT commented that the commission should revise 5101.222(c)(3) to provide that the review of the recurring pattern indicative of design, operation, or maintenance 

### is not inconsistentwith good engineeringpractice.

RESPONSE The commission made nochanges in responsetothis comment. Notall design, operation, or maintenanceis compared to good engineering practice indeterminingwhether they are inadequate. Furthermore, the suggested language is not consistent with EPA's criteria for an affirmative defense for excess emissions from unplanned maintenance, startup, and shutdown activities.

TCC and ExxonMobil Downstream requested adding language to 5101.222(~)(4) that would provide that bypass of control equipment was unavoidableto preventdamage to facilities that would have resulted in even greater unauthorizedemissions. TCC and Exxon Downstreamstated that this would make this criteria consistent with the prevention of emissions as stated inRESPONSE The commission declinesto makethis change. Section 101.222(c)(5) and (6) 

### is sufficient to address the issue of emissions minimization requirements.

EPA and EIP recommended that 9101.222(~)(5) be revised to state that the facility and air pollution control equipment were operated in a manner consistentwith good practices for minimizing emissions at all times.

RESPONSE The commission declinesto makethe suggested change of addingthe phrase "at all times." this languagecould be readto require that control equipment must be in operation at all times. This could makethe criteria impossibleto meet, and, if fully complied with could result in more emissions insome cases. This criteria must also be consideredwith the facts that support the criteria in §101.222(~)(4), which require that any bypass of control equipment was unavoidable to prevent loss of life, personal injury, or severe property damage. Therefore, operation of control equipment at all times could conflict with this criteria. The commissiondoes agree that the requirement to operate the facility ina manner consistentwith good practicesfor minimizingemissions should be readto apply at all times.

EPA and EIP recommended that 5101.222(~)(6) be revisedto state that the frequency and duration of operation in a scheduled startup or shutdown mode resulting in authorized emissions were minimized to the maximum extent practicable. TxOGA, TCC, and ExxonMobil Downstream recommended not deletingthe word "maintenance" 

### 5101.222(~)(6).RESPONSE The commission declines to make the suggested change of adding the phrase "to the maximum extent practicable." 'This could makethe criteria impossibleto meet. The commission reviews these reportedactivities on a case-by-case basis to determine ifthe unauthorizedemissions were minimized. The commission has added languagethat adds the requirement that all possible steps
were taken to minimizethe impact of the unauthorizedemissions on air quality. This added language addresses the air quality goal of protecting human healthand welfare, animal life, vegetation, and property. The commission revised adopted

### 51 01.222(c) to be applicableto unplanned maintenance, startup, and shutdown activities, as discussed previously inthis preamble.



### EPA recommendedthat 5101.222(~)(8) be revised to state that the actions of the owner or operator duringthe period of unauthorizedemissionsfrom the activity were documented by properly signed contemporaneous operating logs or other relevant evidence; and all 

### possible steps were taken to minimize impact of excess emissions on ambient air quality.

RESPONSE The commission declines to makethis change. This was addressed by the commission ina previous rulemaking. Incommission rules adopted inJune2000, the commission explained that this criteria requiresthat the operator be able to show documentation on its normal operation logs or computer systems that the event occurred and how the source owner or operator responded to the event. This 

### iswhat 

### is meant by "contemporaneous operating logs." The commissionagreed with EPA that the term "signed" is unclear as to whose signature 

### is required; therefore, the term has been removed. Furthermore, not all contemporaneous logs would be on paper and be signed (July 14,2000, issue of the Texas Register (25 TexReg 6727)). As discussedinthe previous response, the commission adoptedthe language regarding minimizing ambient air quality impacts in 

### 5101.222(~)(6).

EIP and IPCA commented that §101.222(c) should be amended to clarify that tothe extent startup and shutdown emissions were considered at the time a source was permitted, such emissions may not qualify for the affirmative defense.



### RESPONSE The commission declines to makethis change. If startup and shutdown emissions were reviewed but not included ina permit, any startup and shutdown emissions that remain unauthorized must 

### still be reported and could be eligible for the affirmative defense. The commissiondeclinesto exempt thosefrom the affirmative defense. Compliancewith the demonstration criteria 

### is not only an incentive toobtain the defense, but also requiresaction that could reduce the impact of these unauthorized emissions on air quality.
BSA, NRRC, Public Citizen, and Sierra Lone Star commented that there should be no exemption from or a defense to penalties for routine or predictable emissions. hlRRC commented that although the commission is always free to exercise enforcement discretion, the affirmative defense
as to penalties for excess emissions inthe proposed rules 

### istoo broad. In addition, NRRC commented that EPA has warned the commission that these rules do not meet the FCAA. Specifically, EPA has determined that it is inappropriate to provide an affirmative defense for excess emissions resultingfrom scheduled maintenance, and to excuse these excess emissions from penalties.RESPONSE The commissiondeclines to makethis change. 'The commission retainsthe authority to require corrective action and seek injunctive relief, which have the greater impact on reducing unauthorizedemissions. Compliance with the demonstrationcriteria 

### is not only an incentiveto obtain the defenseto penalties, but also requires action that could reduce the impact of these unauthorizedemissions on air quality. As previously discussed, the commission incorporatedthe concepts of planned and unplanned maintenance to address EPA's concerns of the availability of an affirmative defense for emissions from scheduled maintenanceactivities.



### AECT commented that 5101.222(d) and (e), rather than 5101.222(b) and (c), apply to boilers and combustion turbines referenced inthe definition of 

### RQ. AECT requested that 5101.222 or the preamble clarify that 5101.222(d) and (e), rather than 5101.222(b) and (c), apply to such boilers and combustion turbines.

RESPONSE Section 101.222(d) and (e) 

### isthe affirmative defense section only for excess opacity events when there 

### is no emissions event. The emissions from boiler and combustionturbines consist primarily of carbon dioxide, nitrogenoxides, water, and small amounts of carbon monoxideand are not acutely harmful if unconfined. Inaddition to excess opacity events, when boiler and combustion turbines releasethese contaminants inquantities in excess of authorized limits, the contaminants are unauthorizedand are eligible for the affirmative defense in §101.222(b) and (c). The commission amended 5101.222(f) to provide that the affirmative defense isavailable only for emissions that are reported or recorded. those entitiesthat are not required by 5101201and 5101.21 1to recordor report unauthorizedemissions may voluntarily comply with the recording requirementsof those sections to ensure the availability of the affirmative defense.AECT commented that the STEERS electronic notification form allows only one of the three boxes for shutdown, maintenance, or startup to be checked. As a result, three STEERS electronic notification forms must be completed and submitted for one combined shutdown, maintenance, and startup event. AECT requested that the commission revise the STEERS electronic notification form so that all three boxes for shutdown, maintenance, and startup can be checked, which would allow a combined shutdown, maintenance, and startup event to be reported on one STEERS electronic notification form. In addition, AECT requested that the commission include a statement in the preambleto the final ~~ule as to whether it will make the requested change to the STEERS electronic notification form, and, if so, when.

RESPONSE Revisionsto STEERS are necessary to implement the changes for reporting by regulatedentity and common cause consistentwith 

### HB2129. The commission will consider implementing the requested changes duringthe development of this reporting process. These changes will require
some time to implement and will not be immediately available. The commissionwill make its best efforts to provide modifications to STEERS reporting on an ongoing basis while workingto implement the revised reporting requirements. Inthe interim period, the information required by the rules must be submitted electronically through STEERS, and failure to report according to the rules can result ina violation.

TxOGA proposed deleting the references to exceedances of NAAQS and prevention of significant deterioration increments in §101.222(~)(9). TxOGA stated that, based on the definition of "air pollution" inthe TCAA, this language is redundant in this demonstration. A strict and literal enforcement of the current provision would require modeling and air quality monitoringdata to besubmitted for every emissions event. Deletingthese terms, as suggested by TxOGA, would give the commission the discretion to determine when such data 

### isactually needed to make the required demonstrationwithout havingto require such information in all instances.

TCC and ExxonMobil Downstream recommended revising9101.222(~)(9) by addingthe word "significantly" after the phrase "did not cause or" to avoid the extreme interpretationthat even the most minute unauthorizedemission duringthe activity would fail this criteria ifany exceedance of the NAAQS, prevention of significant deterioration increments, or a condition of air pollution should occur at the same time.

RESPONSE The commissiondeclines to make these changes. The commission specifically expanded existing language previously in §101.1 1(a)(9)when this languagewas adopted in2002. Section 101.1 1(a)(9)was a test of whether the emissionsfrom an event caused or contributed toa conditionof air pollution. In2002, this languagewas addedtoaddress comments made by EPA (September 6, 2002, issue of the Texas Register(27 TexReg 8499)). Section 101.222(~)(9) does not require modeling and monitoringdata be submitted for every emissions event.

Sierra Houston commented that it isopposedto allowingany failure to report information in 9101.222(d)(1), statingthat clear definitions are needed for consistent decisions rather than adding such exceptions that will result in arbitrary and capriciousdecisions.

RESPONSE The commissiondeclines to make this change. Similar language was added to §101.222(b), (c)(l), and (e)(l). The commission revised §101.222(~)(1), (d)(l), and (e)(l) tospecify that the missinginformation is limited to minor omissions or inaccuraciesthat do not impair the commission's ability to review the activity or event.

TxOGA recommended that §101.222(d)(1)be revised to add the word "materially" to modify "impair the commission's ability to review." TxOGA stated that addingthe word "materially" recognizes that a strict interpretation of this provision would cause the denial of virtually every claim for an affirmative defense ifthe emissions event report contained any error or inaccuracy whatsoever. This change will providethe commission with the ability to recognize a minor problem with the report and resolve the problem (e.g., by telephone or email) with the regulated entity owner or operator without the owner or operator receiving a notice of violation/notice of enforcement or forfeiting a claim of an affirmative defense.

RESPONSE The commission declines to make

### this change. Similar languagewas addedto §101.222(b), (c)(l), and (e)(l). The commission revised §101.222(~)(1), (d)(l), and (e)(l) to specify that the missing information 

### is limited to minor omissions or inaccuracies that do not impair the commission's ability to review the activity or event.

TCC and ExxonMobil Downstream appreciate the effort to clarify that minor omissions or inaccuracies that do not impair the commission's ability to review the event should not be cause to invalidate the notification and cause a loss of the affirmative defense.

RESPONSE The commissionappreciatesthe supportive comment.EPA commented that 5101.222(d)(2) revisesthe existing SIP-approved criteria that a source must prove in order to assert an affirmative defense. EPA's guidance requires that the malfunction could not have been avoided by better operation and maintenance practices. EPA stated that the requirementto prove that the event could not have been avoided by better operation and maintenance practices is a fundamental principle which EPA considered in draftingthe 1999 startup, shutdown, and maintenance guidance. theproposed change adds a level of subjectivity that limits EPA, citizens, and the commission's enforcement authority. The proposed change also decreasesthe source's responsibility to anticipate and eliminate releases of excess emissions. The change is a weakening of the existingSIP provision.



### RESPONSE The commission agrees in part and has made changes in response tothis comment. Adopted §101.222(d)(2), renumbered as §101.222(d)(3), does not include the proposed reasonableness test. The commission considers site-specific information and performs a case-by-case review of whether the emissions could have been avoided by better operation and maintenance practices,
or bytechnically feasible design. Adding the term "reasonably" does not establish a new standard or criteria specific threshold that the commission does not already consider, and could add another level of uncertainty indetermining whether the criteria is met. The amendment revisesthe criteriatoadd that the unauthorized emissions did not stem from any activity or event that could have not only beenforeseen and avoided, but also planned for. The adopted amendmentalso changes the criteria of "could not have been avoided by good design, operation, and maintenance practices" to "could not have been avoided by better operation, and maintenance practices or by technically feasible design consistentwith good engineering practice." This change more properly placesthe emphasis of action by the operator on operation and maintenance, and the criteria of what is technically feasible and the application ofgood engineering practices on thedesign of the facilities.

AECT supported the commission's decision to add a reasonableness standardto §101.222(d)(2). However, AECT suggested that §101.222(d)(2) be revisedto add a reasonableness test for what could be foreseen and avoided. TxOGA suggested revising §101.222(d)(2) to providethat the design, operation, and maintenance practices be preceded by the phrase "and economically justifiable." It is not reasonable, for instance, for a regulated entity operating in Texas to ensure that there will never be any freezing problems for its external piping by applyingthe same heatingor installation technology as are required to be used for a similar entity operating inAlaska.
Arkema requested that the commission clarify in §101.222(d)(2)what constitutestechnical feasibility ina manner that includes cost-effectiveness in a technical feasibility determination. Arkema suggested that the commission use existing common industry practices for determining technical feasibility, such as howthe commission would evaluatetechnical feasibility for a control devise determination duringthe new source review permit review process.

RESPONSE Proposed § 101.222(d)(2) is renumberedas 

### 51 01.222(d)(3). Nochanges have been made in responsetothese comments. The commissionconsiders site-specific informationfor the activity, including the specific planning for the activity. Addingthe term "reasonably" does not establish
a new standard or criteria specific threshold that the commission does not already consider, and could add another level of uncertainty in determiningwhether the criteria 

### is met. Inaddition, the commission declines to makethe suggested changetoadd a referencetothe costeffectivenessas a specific part of the criteria. "Technically feasible" now modifies only the design that must be consistent with good engineering practice. Common industry practices areconsidered duringthe analysisfor this criteria.

TCC and ExxonMobil Downstreamcommented that the prevention criteria should only consider whether technically feasible design, operation, and maintenance practices consistentwith good engineering practice would have prevented the unauthorizedemissions, and should not imply that infeasible efforts should have been made.



### RESPONSE The commission does not agree that the rule implies that infeasible efforts should have been made.

TCC and ExxonMobil Downstream recommended that the commission addthe word "significantly" afterthe phrase "did not cause or" in §101.222(d)(9)to avoid the extreme interpretation that even the most minute unauthorized emission duringthe activity would fail this criteria ifany condition of air pollution should occur at the same time.



### RESPONSE Nochange has been made in responsetothis comment. The criterion does not suggest that an extreme interpretation will be used inthe evaluation of whether the owner or operator meets its burden of proof.

EIP suggested that the commission clarify how opacity exceedances are treated underthe rules and to ensure that opacity exceedancesare treated the same as exceedances of air contaminant limits. In addition, EIP requested clarification that all unauthorized opacity emissions are violations. The rule defines excess opacity events to be those that result in opacity exceedingthe applicable limitby at least 15%. Excess opacity events must be reported within 24 hours, but it is not clear that there are recording requirements specified for opacity events that exceed the applicable limit by less than 15%.

RESPONSE The commission agrees that all unauthorized opacity emissions are violations, but unauthorized opacity does not necessarily mean that there 

### isa corresponding violation of emission limits for air contaminants. Opacity 

### is not an emission of air contaminants. Opacity may be, but not always, an indirect indication that unauthorized emissions may be occurring. For example, opacity exceeding 5% of an authorized limit may easily be the result of increased particulate size, and not necessarily an increase inthe amount of emissions. Opacity at 15% above an authorized level 

### isa point at which the commission requires notification, as there may be potential unauthorized emissions or emissions approaching a potential harmful level. Additionally, owners or operators of facilities should be evaluating these emissions to determine if they are an emissions event and subject to the applicable reporting. Reportingof opacity and claiming an affirmative defensefor an opacity event does not protect an owner or operator against enforcement for unauthorized particulate matter emissions. Any unauthorized particulate matter emissions should be evaluated against their applicable RQ and reported or recorded as appropriate. As discussed elsewhere inthis preamble, the reporting requirements for excess opacity are in 5101.201 and 5101.211. Additionally, opacity exceedances at facilities that are subject tothe Federal Operating Permit Program are subject to deviation reporting and should be reportedto the commission under that program. The commission made no changes to the rule basedon this comment.

TCC and ExxonMobil Downstream appreciatethe new language in 5101.222(e)to add clarity that 

### -182-scheduled startup and shutdown activities that meet the following criteria are subject to an affirmativedefense. The separation of scheduled maintenance 

### isdiscussed in 

### 5 101.222(h). TxOGA, TCC, and ExxonMobil D.ownstream recommended not deleting the word "maintenance" in the first and second sentences.

RESPONSE The commission made changes in responsetothese comments. As discussed inthe SECTION 

### BY SECTION portion and elsewhere inthis preamble, the commission incorporatedthe concepts of plannedand unplanned maintenanceinto 5101.222. Specifically, in §101.222(e), maintenance has been retained, but adopted §101.222(e) has been revisedto providean affirmative defense to opacity events resulting from unplanned maintenance, startup, and shutdown activities rather than from scheduled maintenance, startup, and shutdown activities.

TxOGA recommended that 5101.222(e)(l)be revised to add the word "materially" to modify "impair the commission's ability to review." TxOGA stated that the adding of the word "materially" recognizesthat a strict interpretationof this provision would cause the denial of virtually every claim for an affirmative defense ifthe emissions event report contained any error or inaccuracy whatsoever. This change will provide the commission with the ability to recognizea minor problem with the report and resolvethe problem (e.g., by telephone or email)with the regulated entity owner or operator without the owner or operator receivinga notice of violation/notice of enforcement or forfeiting a claim of an affirmativedefense.

RESPONSE The adopted rule clearly states that failure to report as required by §101.201(a)(2) or 

### (3, (b), or (e) 

### will cause the commissionto initiate enforcement except when the failure consists of minoromissions or inaccuraciesthat do not impair the commission's ability to review, and it is not intentional falsification or knowing omissions. The commissionappreciates the support for the additional language regarding enforcement, but declines to add the word "materially" because the rule specifies that the missing information 

### is limitedto minor omissions or inaccuraciesthat do not impair the commission's ability to review the activity or event. Inaddition, there is no need tospecify inthe rule that formal enforcement 

### is notthe remedy or that no enforcement will be taken when reports may inadvertently exclude information or contain imprecise information becausethe enforcement determinations are based on a case-by-case review of the facts. Exclusion of some information could possibly result informal enforcement.

Sierra Houston commented that it 

### isopposed to allowing any failure to report information in 5101.222(e)(1), stating that clear definitions are needed for consistent decisions rather than adding such exceptions that will result in arbitrary and capricious decisions.

RESPONSE The commissiondeclines to make 

### this change. Similar languagewas added to §101.222(b), (c)(l), and (d)(l). The commission revised §101.222(~)(1), (d)(l), and (e)(l) to specify that the missing information is limitedto minor omissions or inaccuraciesthat do not impair the commission's ability to reviewthe activity or event.

AECT commented that it agrees with the proposed revision to 

### 5 1 01.222(c). However, AECT suggested that the rule language should be revised based on the past statements made by the commission in the January2, 2004, issue of the Texas Register (29 TexReg 118). AECT commented that each scheduled maintenance, startup, or shutdown activity that meets the criteria in 5101.222(c) is considered by the commission to be authorized by virtue of meeting such criteria.AECT suggested that 

### 5 101.222(c) be revisedto add the languageas follows: "Emissions from any scheduled maintenance, startup, or shutdown activity that exceed any air emission limitation in a permit, rule, or order of the commission or as authorized by THSC, 5382.0518(g), are authorized if the owner or operator proves all of the following criteria are met."

RESPONSE The commission declines to makethis change. Section 101.222(c), as adopted by the commissionon December 17, 2003, which was published inthe January2,2004, issueof the Texas Register (29 TexReg 118)did not provide authorization for these emissions. Rather, the rule provided that the emissions were requiredto be permitted, unlessthe demonstrationcriteria were proven. The rules inChapter 101, Subchapter 

### F, Division3, and the predecessor rules in 881 01.6, 101.7, and 101.1 1(repealedeffective September 12,2002) have not and do not authorize any emissions. 

### All air contaminant emissions are authorized under Chapters 106and 116.

AECT commented that 5101.222(e) does not provide for protection from enforcement in situations where a scheduled maintenance, startup, or shutdown activity causes opacity in excess of an opacity limit in any rule otherthan 51 11.1 11(a), or in any permit or order, even ifthe criteria in 

### 5 101.222(e)are demonstratedto be satisfied for the event. AECT suggested the following revision: "Opacity events resulting from scheduled maintenance, startup, or shutdown activity. Excess opacity events, or other opacity events where there was noemissions event, that resultfrom a scheduled maintenance, startup, or shutdown activity are subject to the opacity limitations in rules, permits, or orders of the commission unless the owner or operator proves all of the following criteria are met":TCC and ExxonMobil Downstream appreciated the effort to clarify that minor omissions or inaccuracies that do not impair the commission's ability to review the event should not be cause to invalidate the notification and cause a loss of the affirmative defense.

RESPONSE The commission appreciates the supportive comment.

TCC and ExxonMobil Downstream stated that the words "period of" in 5101.222(e)(2)are unnecessary, should be deleted, and only raise questions of intent. the prevention criteria should only consider whether feasible planningand design would have prevented the unauthorized emissions, and should not imply that infeasible efforts should have been made, and recommended addingthe word "feasible" after the phrase "been prevented through."

RESPONSE Nochanges have been made in response to these comments. The phrase "periods of' clearly refersto a span of time, indicating that the entire period of time for which the unauthorized emissions existed must be considered indetermining compliance withthis criteria. The commission does not agreethat the rule implies that infeasibleefforts should have been made.

TxOGA recommended that the term "reasonably" be added to modify "have been prevented" in 5101.222(e)(2). In addition, TxOGA stated that the rule should also provide an economic reasonableness test. It 

### is' not reasonable, for instance, for a regulated entity operating in Texas to
ensure that there will never be any freezing problems for its external piping by applying the same heating or installation technology as are required to be used for a similar entity operating in Alaska.RESPONSE Nochanges have been made in responsetothese comments. The commission considers sitespecific information for the activity, including the specific planningfor the activity. Adding the term "reasonably" does not establish a new standard or criteria specific threshold that the commission does not already consider, and could add another level of uncertainty indetermining whether the criteria 

### is met. Inaddition, the commission declines to makethe suggested change toadd a referencetothe cost-effectivenessas a specific part of the criteria. "Technically feasible" now modifies only the designthat must beconsistentwith good engineering practice. Common industry practices are considered duringthe analysis for 

### this criteria.

AECT commented that the commission should add languageto §101.222(e)(2)and (3)to provide that the opacity was not part of a recurring pattern indicative of design, operation, or maintenance that was inconsistentwith good engineering practice, rather than based on inadequatedesign, operation, or maintenance.

TCC and ExxonMobil Downstream requested adding to the end of §101.222(e)(4)the phrase 'I, or damage to the facilities that would have resulted in even greater opacity" because it 

### is consistent with the preventionof opacity emissions as stated in §101.222(e)(5).

TCC and ExxonMobil Downstream recommended not deletingthe word "maintenance" in §101.222(e)(6). 'the separation of scheduled maintenance 

### is discussed in 5101.222(h).

TxOGA suggested that §101.222(e)(6)retain the term "maintenance."

TCC and ExxonMobil Downstream requested addingthe word "significantly" after the phrase "did


### -187-

.-not cause or" in 5101.222(e)(9)to avoid the extreme interpretation that even the most minute opacity emission during the activity would fail this criteria if any condition of air pollution should
occur at the same time.

EPA supported the revision to 5101.221 (dl providing that the commission will not exempt sources from compliance with any federal requirements, including new source performance standards or national emission standards for hazardous air pollutants. However, this change does not fully address concerns raised in EPA1s limited approval of the current version of this rule. EPA strongly recommended that the state adopt an addition to 5101.222(0, Obligations, that states, in effect, 5101.222(b), (c), (d), or (e)do not provide an affirmative defense to violations of federally promulgated standards. For example, the rule may contain an applicability section which defines standards that may be subjectto an affirmativedefense, or the rule may state that certain violations
are not subject to an affirmative defense. EIP requestedthat the commission clarify that the affirmative defense applies only to exceedances of emissions limits established by the SIP because it cannot provide a defense to enforcement action or penalties for violations of other federal requirements. GHASP commented that the affirmative defense 

### is overly broad in its application. The rule should specify that the affirmative defense isavailable only with respectto enforcement of the SIP provisions and not when it comes to sentences or enforcement of other federal requirements.

RESPONSE The commission agrees that neither 5101.221(d) nor 51 01.222(f) fully address the applicability of the affirmative defense and revised 5101.222(f). Section 101.222(f) provides that any affirmative defense providedby §101.222(b), (c)

# - (e), and (h) apply only to violations of SIP requirements.An affirmative defense cannot apply to violations of federally promulgated performanceof technology-basedstandards, such as those found in 40 

### CFR Parts 60, 61, and 63.

GHASP commented that the phrase out of the affirmative defense "maintenance activity" should be defined.

RESPONSE The commission declines to define maintenance activity for use solely with the affirmative defense. Ina concurrent rulemaking, the commission 

### is proposinga definition of "normal operations" of which plannedand predictablemaintenance, startup, and shutdown are components. The commenter will have the opportunityto comment onthat proposed definition.

EPA strongly recommended that the state establish an alternative approach of enforcement discretionfor excess emissions .fromscheduled maintenance during this transition period. EPA commentedthat it cannot approve a blanket affirmative defense for scheduled maintenance activities. Instead, EPA strongly recommended that the commission establish an enforcement discretion approach for excess emissions from scheduled maintenanceduringthis transition period. This approach generally requiresthe source to demonstratethat the excess emissions could not have been reasonably avoided through better maintenance and operational procedures, why the maintenance 

### is needed, and how the emissions were minimized in order to avoid an enforcement action.
Notwithstandingthe previous comment, EPA stated itwill evaluate these provisions for consistency with the FCAA and EPA-related policy and guidance.RESPONSE The commission made changes in response to these comment. As discussed elsewhere inthis preamble, the commission revised 5101.222 to accommodate the definition of unscheduled maintenance, startup, and shutdownactivities inTHSC, 5382.0215, and unplanned maintenance, startup, and shutdown activities. Inaddition, although the affirmative defense 

### is retained for planned activities, it 

### is phased out according to a specific schedule by facility SIC code. This schedulewill provide for the orderly and thorough review of applications for authorization of these emissions. Accordingly, the affirmative defense 

### is scheduledto be phased out one year after the deadline for application submission. Ifthe application remains pendingafter one year, the commission may use enforcement discretion untilfinal action 

### is taken on the application. In addition, the criteria for unplanned maintenance, startup, and shutdown activities has been revised in §101.222(c) to meet EPA guidance. For all other facilities, the affirmative defense will expire one year fromthe deadline for filing an application.
Accordingly, for facilities in major group SIC code 28 (Chemicals and Allied Products), except SIC code 2895, the affirmativedefense isscheduled to be phased out twoyears after the deadlinefor application submission. For all other facilities, the affirmative defense will expire
oneyear after the deadlinefor application submission. Ifthe application remains pending after
one year, the commission may use enforcement discretion until final action 

### istaken on the application. Inaddition, the criteria for unplanned maintenance, startup, and shutdown activities has been revised in §101.222(c) to meet EPA guidance.

EPA commented that 5101.222(h) should repeat, rather than merely reference the criteria listed in 5101.222(~)(1) 

### - (9), and that any changes to the criteria in 5101.222(c) should be incorporated into 5101.222(h). EPA also recommended the addition of criteria to clarify that the source has theburdento provethat the maintenanceactivity arose from sudden and reasonably unforeseeable events that were beyondthe control of the operator, and that immediate corrective action was necessary in order to restore normal operations. EPA recommended that the state consider other criteria as necessary to appropriately limit application of these provisionsto nonroutine and emergency circumstances (i.e., to prevent a malfunction). EPA strongly recommendedthat these limitations be placed in the criteria, rather in the body of the rule, to ensure that the source or operator bears the burdento provethose limitations have been met before the affirmative defense may be asserted.

RESPONSE The commission made no changes in responseto these comments. Rather, as discussed elsewhere, the commission revised 5101.222 to ensure that the emissions that are subject to an affirmativedefense are those that are eligible under EPA guidance. The referencingof the criteria in §101.222(~)(1) 

# - (9) is adequateto specify what has to be proven.

GHASP stated that affirmative defense should not be allowed for scheduled startup/shutdown, which instead should be permitted. GHASP stated that EPA instructedthat entitiesthat do not permitthese maintenance, startup, and shutdown emissions will be subject to enforcement for any emissions over limits established by a permit or rule. GHASP expressed that such emissions are predictableand quantifiable. GHASP commented that it does not support a phase-out of the affirmative defense for such emissions and stated that it 

### is inconsistentwith EPA guidelines, and recommended not seeking enforcement during a permitting phase that does not exceed one year.

EIP commented that the affirmative defense for maintenanceemissions should be deleted. TxOGA suggested that the commission delete proposed 5101.222(h). Permittingof scheduledmaintenance, startup, and shutdown activities should be allowed and encouraged, but the commission should not do away with the affirmative defense for most unpermitted scheduled maintenance, startup, and shutdown activities.

TCC and ExxonMobil Downstream recommended that the commission delete 5101.222(h), drop the separation of maintenance activities from 5101.222(c) and (e), and continue to providethe option for an affirmative defense. Providing an affirmative defense for maintenance activities still leaves the owner or operator with a violation and Title V deviation. This alone is sufficient encouragement to incorporate maintenance activities into permits or other authorizations without the special expiration proposed. 

### Ifthe rule must include a phase-out of the affirmative defense for maintenance activities to satisfy EPA concerns, then the commission should provide all necessary resources to expedite the processing of permits for adding maintenance emissions. Where these emissionscan be shown to have been occurring and previously reported to the commission, the emission should not be considered as new, and not be required to provide offsets.



### RESPONSE The commission declines to make these changes. As discussed elsewhere inthis preamble, the commission revised §101.222 to ensure that the affirmative defense and enforcement discretion provided meets EPA guidance, and has provided a schedulethat will allow an orderly, meaningful review of applications for authorization of emissionsfrom planned maintenance, startup, and shutdown activities. Inaddition, the commission 

### is concurrently proposing authorization mechanisms to provideflexibility for authorization of these emissions. Whether offsets 

### will be requiredfor authorization of these types of emissions isan issue associatedwith authorization, which 

### is beyond the scope of this rulemaking because Chapter 101 does not authorize emissions.TCC and ExxonMobil Downstream commented that the commission should not precludethe use of the affirmativedefense for maintenanceemissions even after regulated entities have had the opportunity to authorize maintenanceemissions by a PBR or permitting. As proposed, this option will only remain for maintenance emissionsthat arise from reasonably unforeseen events. This adds an air of uncertaintythat may preclude usingthe affirmative defense for coverage until such time as these events can be covered by a PBR or permitting, ifthe regulated entity has previously added maintenance emission to its permits. For example, a new facility might include maintenance emissions based upon design information and any previousexperience with similar units. As experience grows with operation of the unit, additional maintenanceactivities become known that
were not authorized, and need the opportunity to use an affirmativedefense ifthe emission cannot be authorized. This would allow the authorization and the affirmativedefense option to be used as atemporary cushion for necessary operations untilthe authorization 

### is received. Owners and operators would much prefer to have such activities authorized by permit ratherthan rely on a PBR
or an affirmative defense.

TPA recommended that the commission continue the affirmativedefense for maintenance emissions while encouragingthe permitting of maintenanceemissions. TPA commented that 

### is unreasonablefor the commission to expect all maintenanceemissions for sources authorized by standard permits and PBRs to be permittedwithin two years, particularly for companieswith tens of sites and operations where there may be hundreds or thousands of facilities.
TCC, ExxonMobil Downstream, Pure, and Occidental commented that permitting maintenance emissions should be encouraged, but not mandated. TIP commented that the commission should considerthe ramifications of its requirementto permit maintenanceemissions.RepresentativeHochberg commended the commission's efforts to bringemissions resulting from scheduled maintenance events into the permitting process. Representative Hochberg commented that some number of shutdown/startup activities should also be brought into the permitting process. RepresentativeHochberg also commented that ifa plant operator can build in the cost of these emissions into an operating budget, then the plant should be able to reasonably estimate the resulting emissions and include them in the permit.

Duke commented that the commission should encourage the permitting of scheduled maintenance, startup, and shutdown activities by providingguidance for permittingthose activities and by facilitating the application of existing rulesto bringthose activities into the permitting process.

TCC and ExxonMobil Downstream expressed concern that the rule mandates that most maintenance emissions be authorized by PBR or permits. TCC agreed that authorization by PBR or permits 

### isthe bestway to handle maintenance emissions, however, the commission has not yet implemented viable guidance to providethis coverage.

Dow supported the idea of authorizing maintenance emissions in permits and other types of authorizations. However, Dow expressed concern that a mandateto permit is being included in these ruleswithout any information as to how this requirementwill be implemented. Dow recommended that the commission develop additional permitting mechanisms and policies prior to adopting this rulemaking subsection regarding maintenance activities and the loss of an affirmative defense after two years.

Dow expressed concern with several issues regarding maintenance. The commission's policy 

### is that the maintenance emissions must occur at least once every 12 months, which limits the abilityto permit maintenance activities that are associated with plant turnaround that occur at two- to fiveyear intervals. Longer intervals make more business sense and result in lower emissions. The commission's PBR for maintenance activities, 5106.263, presentsan obstacle to authorizing all of the emissions at larger sites. Current permittingpracticefor maintenanceemissions requiresthe applicant to be specific with respectto the maintenance activitiesthat one 

### isallowed to conduct. Dow suggested that the commission define maintenance scenarios ina general manner. Dow commented that review of bestavailable control technology and off-site impacts from maintenance activities remains very much a case-by-case review. Dow strongly suggested that the commission
ensure that any attemptto permit all scheduled maintenanceemissions isdone in a manner that truly allows the vast majority of such activitiesto be authorized.
TxOGA, Pure, and Occidental commented that requirementsto permit scheduled maintenance, startup, and shutdown activities may trigger a prevention of significant deterioration or nonattainmentarea reviewthat could take years to complete. Requiringall scheduled maintenance, startup, and shutdown activities for sources under standard permits and PBRs to be permittedwithin two years 

### isalso not reasonablefor even a medium size company with tens of sites and operations. Such a requirement could leadto many facilities now authorized under PBRs
or standard permitsto have to be permitted, creating a workload that current permittingvehicles cannot handle. In addition, the process of estimating emissions due to scheduled maintenance 

### is very difficult. Many types of maintenance activities are performed on a predictive, rather than on a strictly scheduled or planned basis. With predictive maintenance, some type of monitoring or testing is used to indicatewhen maintenance needs to be performed. In one year that may mean a particular activity 

### is performed once, the next year it may need to be done three times, and inthe nexttwo years it may not need to be done at all. Predictive maintenance is preferableto planned maintenance ifthe intent isto minimize emissions, because with predictive maintenanceanoperator can delay an activity if parameters warrant or accelerate an activity to avoid a catastrophic failure if necessary.
TxOGA, Pure, and Occidental also commented that permitting all maintenance activities will not decrease the environmental impact of this work. Companies must have the flexibility to both establish and manage priorities ina dynamic environment. Facilities must be able to identify and perform work when it is needed, and practical to be performed, without being penalized for not adhering to an unrelated schedule. Working on equipment that has no environmental impact at the time of neededwork must not be hindered.
Arkema requested that the commission clarify that the two-year time limit is only for sources not covered by a new source review permit, such as sources covered by a PBR, standard, permit, etc. and that sources covered by a new source review permit may use the affirmative defense for maintenance emissions until a revised new source review permit 

### is issued. To better manage internal commission resourcesduringthis transition period, Arkema recommended that instead of the two-year cycle, the commission incorporate this change to the new source review permit at its five-year renewal cycle or earlier when another reason requiresthe permit to be amended. Arkema also requested that the commission provide an application shield to facilities that apply for new
source review permit amendments before any deadline so that afacility may continue to use the maintenance affirmative defense until the commission takes final action.

EPA requested further information on the state's plans to begin authorizing and implementing maintenance-related emissions that are regular and quantifiable, such as plant turnarounds and preventive maintenance such as routine replacement of facility parts, into permitting programs. EPA commented that the commission should explain how the phase-in period established in thisrule relates to that change.

EIP commented that best practiceswould suggestthat some pieces of duplicate equipment, such as pumps, can be servicedwithout startup and shutdown. Emissionsfrom the maintenance portion of maintenance, startup, and shutdown should be predictable, and should only get lower with improved processes.

GHASP stated that it 

### is imperativethat these facilities are held accountable for their emissionsthat
are predicable and quantifiable in accordance with the federal law. GHASP also commented that any reference to maintenance should include associated startup and shutdown associatedwith that maintenance.



### EIP acknowledged that there may bevalid reasons for a plantto operate with a higher rate of emissions during startup and shutdown activities, however, this reality does not excuse those activities from regulatory review, as they are foreseeable. When a company correctly ensures that all its emissions are authorized by permit, then presumably the permit review process has included consideration of the available technologies and operating practicesthat may be used to reduce emissions duringthese activities.

EPA commented that its policyfor maintenance emissions, other than those immediately necessary to address an upset, should be included in permits. For turnaround maintenance, the period between turnarounds should be predictable for each type of operating unit. Everyturnaround will have a startup and shutdown, buteach

. may

. be different 

### - if, for nothingelse, because the mix of equipment being maintained ina given turnaround will be different every time. Butthefacility should be able to predict, for permitting purposes, the maximum emissions for a turnaroundinvolving a particular piece of equipment based on the maximum inventory capacity of the equipment.

BSA commented that, based on the report prepared by Public Citizen, upsets are not accidents, but rather are planned. BSA, Public Citizen, and Sierra Lone Star supported permitting of all routine or predictable emissions. NRRC supports submitting all the routine and predictable emissions from scheduled maintenance, startup, and shutdown activities to all permitting requirements, but these rules do not require that.

HCPHES commented that scheduled maintenance is a predictable event that can be scheduled to a large extent at the discretion of the source as part of normal operations and should be incorporated into a source's air permit. Furthermore, HCPHES commented that it understands the need for an interim measure to incorporate the associated emissions into an air permit. However, HCPHES commented that all emissions in excess of a permit or other authorization should not be allowed. Emissionsabove allowable limits may cause or contributetoviolations of the NAAQS and the HGB region's ability to reach attainment for ozone.

RESPONSE The commissionagrees that companies should be accountable for all of their emissions. The commission's emissions inventory rules and the reporting required by 5101.201 and 5101.21 1, includingadopted 

### 51 01.201(h) and 

### 51 01.21 1(f) are some of the ways the commission collects this information. This type of reporting 

### is used for air quality planning as well as to determine compliance with authorized emissions limits. The commission made changes to 5101.222 to phase out the ability to claim an affirmative defense for emissionsfrom planned startup and shutdown activities inaddition to maintenance activities. This 

### isone incentive to obtainauthorization of emissions which have generally not been authorized, particularly in new source review permits.

Section 

### 101.222 does not require permitting of emissionsfrom maintenance, startup, and shutdown activities. However, becausethe ability toclaim an affirmative defense for planned maintenance, startup, and shutdown emissions will be phased out, the commission anticipates that the ownersand operators of these facilities will submit applications for new source review authorizations for these emissions. Currently, there are morethan 14,000 active NSR permits in Texas. The commission has one of the nation's largest minor source permittingprograms, as well
as a large number of major sources. The opportunity toseek authorization for planned maintenance, startup, and shutdown emissions is not limitedto major sources. Duetothis large number of active permits, the commission is evaluating options for authorizing certain maintenance, startup, and shutdown emissions. These options include PBRs, standard permits, and caseby-case permitsor permit amendments. Ina concurrent rulemaking, the commission is proposing various authorization mechanismsto provide authorizationflexibility, dependingon the amount and nature of the emissions. Authorization of planned maintenance, startup, and shutdown emissions will involvea case-by-case review of best available control technology and off-site impactsfor facilities that cannot be authorized using PBRs or standard permits. The commission's air permitting staff has limited experience permitting emissions from planned maintenance, startup, and shutdown activities, andtherefore this case-by-case review will involvedeveloping an understandingof the methodsand techniques available to minimize the emissions from these activities.

Texas is one of the most industrial states inthe country, and has large numbersof very diverse industries. The state has several international ports, and one of the nation's largest complexes ofrefining and petrochemical companies. Furthermore, as the second largest state inthe nation, there are a wide variety of industries inthe state, includinga large number of oil and gas facilities. The schedule in §101.222(h) will providetime for the commissionto gain a better understandingand development of best available control technology, and conduct impact analyses. Requiring companies invarious industriesto submit applications at the same time as those from similar facilities willallow the commissionto compare how companies planto control planned maintenance, startup, and shutdown emissions. This will facilitate an understanding of the best ways to control and minimize these emissions.

Inaddition, the schedule allows for review of the most important emissions, starting withthose facilities that are large, or have frequent unauthorized emissions or have emissions with a greater possibility for off-site impacts. This schedulewill decrease the likelihoodthat these emissions of concern are not adequately reviewed, for best available technology and protection of public health and physical property.

The commission modified the schedule for the phasingout of the ability to claim an affirmative defense. The adopted schedule 

### is in §101.222(i) and is based onthe level of excess emissions reported by industry type inthe 2002 emissions inventory. The SIC codes specifically listed in the revised phase-out schedule in §101.222(h)(1) are those that reported more than 98% of the total excess emissions reportedtothe commission's emissions inventoryfor calendar year 2002.

The commission will make every effort to review applications to permit emissions associated with planned maintenance, startup, and shutdown activities beforethe loss of the ability to claim
an affirmative defense according tothe schedule contained in §101.222(i). However, because the actual number of applications that may be submitted 

### is unknown at this time, final actionmay not occur for all applications before the expiration of the ability to claim an affirmative defensefor planned maintenance, startup, and shutdown activities. Therefore, for those actions that may still be pending, the commissionwill continue to use itsenforcement discretion when reviewingexcess emissions from planned maintenance, startup, and shutdown activities. In addition, the commissionadded §101.222(j), which references

### 5116.1 14. Section 101.222(j) requiresthat the executive director meet certain application processingdeadlines. 

### Italso requires applicants to make good faith effortstosubmit, ina timely manner, adequate information that demonstrates that the requirementsfor obtaining a permit or permit amendment are met in responsetoany deficiency notification issued by the executive director.

AECT commented thatthe commission should not revise its rules to require that shutdown and startup emissions from electric generatingfacilities be authorized by a permit because electric generating facilities are unique relativeto other types of facilities. AECT commentedthat electric generatingfacilities are unique in that their shutdowns and startups are scheduled by the Electric Reliability Council ofTexas, Southwest Power Pool, or similar authorities, based on the customer electric consumption and reliability needs of the state. As a result, electric generatingfacilities' owners and operators cannot usually predictthe frequency of startups and shutdowns oftheir electric generating facilities, especially given electricity deregulation. This makes permitting of shutdowns and startups of many electric generatingfacilities difficult, if not impossible.



### RESPONSE The adoption of these rules will not directly requirethe authorization of startupsand shutdowns. However, the commission recognizesthat the loss of the ability to claim an affirmative defense will result inthe desire toauthorize the emissions associated with most planned maintenance, startup, and shutdown activities. 

### Ina concurrent rulemaking, the commission is proposingvarious authorization mechanismsto provide flexibility inauthorizing planned maintenance, startup, and shutdown activities, depending on the amount and nature of the emissions. Some planned maintenance, startup, and shutdown activities will require a case-by-case review because of the quantity or nature or their emissions. The case-by-caseauthorization of these activities 

### issomethingthat the commission has very littleexperiencewith and will take some time to develop. The commission recognizesthat electric generatingfacilities present some unique challenges inthat some of their startup and shutdown activities are beyond their control. The commission staff will take this into account when determining if, or how, these activities will be reviewedandlor authorized. The permit application deadlinefor electric generatingfacilities 

### isfive years after the effective date of this rule so there will betime to resolvethe AECT's
concerns.

AECT commented that ifthe commission does not delete proposed 5101.222(h) as suggested, then AECT suggested minor revisions to §101.222(h), including adding the term "events" after the term "emissions" in § 101.222(h).



### RESPONSE The commission declinesto make these changes. As previously discussed, the commission revised 5101.222(h) to be applicable to plannedmaintenance, startup, and shutdown activities, and has added 5101.222(i), which providesa schedulefor phase-out of the affirmative defense for facilities in certain industries with the designated 

### SIC codes.



### EIP stated that Texas permits and regulations often require little or no monitoringafter a piece of control equipment passes compliance testing, and therefore from that date forward, self-reported emissions data, and consequently compliance determinations, are generally based on the exact
-202-same information that was used'to establish the permit limits. Essentiallythis means that it 

### is often logically impossiblefor an operator to ever violate its permit limits, regardless of how the facility 

### is operated.

RESPONSE The commission made no changes in responseto this comment because it 

### is beyond the scope of this rulemaking.

An individual commentedthat general engineering design process needs to be improved so that plantstake into account, upset events, startup and shutdown events, and other foreseeable misuse events that might occur. An individual commented that an engineering review should be made to ensure continued adequacy of the design.

RESPONSE As previouslydiscussed, the commission plansto take a careful look at the applications submitted for authorizationof these historically unpermittedemissions, includingthe design of the control equipment.

An individual commented that, for gas treatment plants, four pounds per hour of emission allowable for hydrogen sulfide 

### isextremely high; this number should be closer to zero. The individual commented that incineratinghydrogen sulfide creates sulfur dioxide which also causes harm, and should be re-injected into a properly designedwell and not vented to the atmosphere. An individual commented that American Petroleum Institute Recommended Practices Numbers49, 59, and 55 show the effects of hydrogen sulfide and sulfur dioxide.RESPONSE This comment concerns authorization of gas treatment plants. Although these rules require minimizing emissions to the atmosphere, the rules do not prescribe mechanismsfor doing so. Therefore, this comment is beyondthe scope of this rulemaking.

An individual expressed concern that the gas processingplant by that individual's residencewas granted a 

### PBR in 15 days. This 

### PBR is too vague. Concern was expressedthat no public notice
was given to them or their neighbors as to the construction of the plant. An individual commented that more time should be allowed or taken to approve any permit that has the potential for off-site emissions. An impact statement should take into consideration what the plantwill doto our health, the effects on the community, and the general health and safety of the people. An individual commented that a 

### 114 mile limitfor the plant is too short.

RESPONSE This PBR is beyond the scope of this rulemaking. However, the commission developed PBRs and standard permits as a mechanismto authorize similar types of facilities. When developingthese PBRs and standard permits, the commission must review the impacts from these types of facilities to ensure that they are protective of public health and the environment if the facility 

### is operated inaccordance with the requirements of the authorization. If an individual believes that
a particular facility 

### is not operating inaccordancewith its authorization, the individual can contact the commission inone of four ways. The appropriate commission regional office can be contacted, a complaint can be made by using our online form (found at http://l63.234.20.106/compliance/complaints/index.htm~, the commission can be reachedtollfree at 1-888-777-3186, or individuals can e-mailthe commission at cmplaint@tceq.state.tx.us.Division 3: Operational Requirements, Demonstrations, andActions to Reduce Excessive Emissions Section 101.223

### -Actions to Reduce Excessive Emissions



### EIP commentedthat the rules should be amended to clearly reflect that THSC, 

### 5382.021 6(e) requires that emissions events resultingfrom the lack of preventive maintenance or from operator error, or emissions that are part of a recurring pattern of emissionsevents indicative of inadequate design or operation be subject to corrective action plan requirements.

RESPONSE The commission declines to make this change. The statutory provision 

### isself-implementing. Furthermore, the demonstrationcriteria for excessive emissions in§101.222(a) requiresthe commissionto evaluate the cause, frequency, and four other criteriathat address the specific concerns raised by EIP. Emissions determinedto be excessive either results inthe requirementto providea corrective action plan, or that the owner or operator obtainan authorization.
BSA, Public Citizen, and Sierra Lone Star commentedthat the commission should requirefacilities to perform maintenance and have better employee training. The commission must force companies that regularly have repeat upsets to install equipment to prevent such events from reoccurring.

RESPONSE The commission declines to make any changes in responseto these comments. Section 101.221(a) requires that all pollution emission capture equipment and abatement equipment be maintained in good working order and operated properly during facility operations. Emissioncapture and abatement equipment shall be consideredto be ingood working order and operated properly when operated ina manner such that each facility isoperating within authorized emission limitations. As previously discussed inthis preamble, and inthe preamble to the rules implementing statutory changes adopted by the legislature in2001, when the executive director determines that emissions are excessive, and the emissions from a facility are sufficiently frequent, quantifiable, and predictable, the facility owner or operator has a choice between filing a corrective action plan or requesting permit authorization. Therefore, emission capture and abatement equipment may be required by authorization or by a cap on emissions (September 6, 2002, issue of the Texas Register (27 TexReg 8499)).

EIP commentedthat the commission should include a bright-linetrigger for corrective action plan requirements. For example, if unauthorized emissions of a pollutant due to emissions events exceed a certain percentage of the facility's most recently reported annual emissions of that pollutant, the corrective action plan requirements should be triggered. In addition, the commission should maintain discretion to determine on a case-by-case basis whether other events are excessive. The proposed rule should be amended to automatically subjectthe facility operator to the corrective action plan requirements for events for which it 

### is determined that the excess emissions were caused by lack of preventive maintenance or operator error, or that are part of a recurring pattern indicative of inadequate design or operation.

RESPONSE No change was made in response to these comments. The commission did not propose language that would establish a bright-line trigger for corrective action plan requirements, and therefore declines to make any suggested changes without the opportunity for comment. THSC, 5382.0216 provides the owner or operator of a facility that has excessive emissions events theoption of filing a corrective action plan or a letter of intent to obtain authorization for emissions, and thereforethe commission declines to delete the authorization option. This was specifically addressed inthese rules for the implementationof HB 2912,77th Legislature, effective September 12,2002, as follows: "The commission modified §101.223(a)(1) to indicate 'when a CAP is required' that the provisions regardingCAPS will apply. The commission recognizesthat when emissions from emissions events are sufficiently frequent, quantifiable, and predictable, the facility owner or operator has a choice betweenfiling a CAP or requesting permit authorization. However, ifthe commission determinesthat the emissions are not sufficiently frequent, quantifiable, or predictable, the facility must filea CAP."

EIP commented that the proposed rule shouId require additional monitoringfor excess emissions. Extensiveevidence alreadyfamiliar to the commission suggests that emissions from flares are being underestimated and under-reported, even when properly operated.

RESPONSE Corrective action plans are evaluated on a case-by-case basis, and monitoring may not be an appropriate corrective action for all events associatedwith flares. The commission continues to consider monitoringwhere itdeterminesthat 

### isappropriate corrective action.

HCPHES supported the changes in §101.223(a)(1) regarding the additional language of appropriate local air pollution control agency withjurisdiction.

RESPONSE The commission appreciatesthe support.HCPHES commented that 5101.223(a)(2)should be revised to include the local air pollution control agency with jurisdiction, because the local agency should have the opportunity to officially comment and approve a corrective action plan within the local agency's jurisdiction. Sierra Houston supported adding local agency to 5101.223(a)(l).



### RESPONSE The commissiondeclines to make the changes. The commission has statutory deadlines, incorporated in 5101.223, toact on corrective action plans, and therefore must begin and end its review timely. Adding an additional approval mechanism may makethose deadlines difficult to meet. Local pollution control agencies may obtain copies of corrective action plans by contacting the commission or the owner or operator of the facility, and may submit commentsto the commission regardingthe plan.

STATUTORY AUTHORITY The amendment 

### is adopted under Texas Water Code, 55.103, concerning Rules, and 35.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and underTHSC, 5382.01 7,concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA. The amendment 

### is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishesthe commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; 5382.01 1, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; 5382.012, concerning State Air Control Plan, which authorizesthe commission to prepare and develop a general, comprehensive plan for the control of the state's air; 5382.014, concerning Emission Inventory, which authorizes the commission to require submittal of information regardingemissions of air contaminants; 5382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe requirementsfor measuring, monitoring, and maintaining records of emissions of air contaminants; 5382.021 5, concerningAssessment of Emissions Dueto Emissions Events, which authorizes the commission to collect and assess unauthorized emissions data due to emissions events; 5382.0216, concerning Regulation of Emissions Events, which authorizes the commission to establish criteria for determining when emissions events are excessive and to require facilities to take action to reduce emissions from excessive emissions events; and 5382.085, concerning Unauthorized Emissions Prohibited, which prohibits emissions of air contaminants except as authorized by commission by rule or order.

The adopted amendment implements 

### THSC, 55382.002, 382.01 1, 382.012, 382.014, 382.01 6, 382.021 5 and 382.021 6.