$; Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Teras by Reducing and Preventing Pollution 

Docket No. 2005-0792RUL 

January 23,2006 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency - Region 6 

1445 Ross 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 scheduled maintenance, startup, and shutdown (MSS) activities. The adopted rulemaking adds the 

concepts of unplanned and planned MSS activities. The adopted rulemaking provides for an affirmative defense 

for certain emissions and revises some of the demonstration criteria for qualifying for an affirmative defense. 

The adopted rulemaking also provides that the affirmative defense for planned 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 incorporates applicable statutory changes in House 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 Hartnett White 

Chairman 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

P.0. Box 13087 Austin, Texas 78711-3087 512/239-1000 Internet address: www.tceq.state.tx.us 

, ., " .,*, , t3 .s?\--,..< -8 
Texas Commission on 

Environmental Quality 

Public Hearings 

August 2, 3,4,5, and 8,2005 

30 TAC Chapter 101 

Emission Events 

and the State Implementation Plan 

Rule Project No. 2005-024-1 01 -CE 

Volume 2 of 2 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held public hearings on the following dates: 

August 2, 2005, at 2:00 p.m., in Austin; August 3, 2005, at 10:OO a.m., in Arlington; 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, 101.21 1 ,. 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. The amendments also add the concepts of unplanned 

and planned MSS activities; provide for 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 revise some of the demonstration criteria for qualifying for an affirmative defense. In addition, 

the amendments provide that the affirmative defense for planned MSS activities would be phased out 

according to a prescribed permit application schedule, and replaced by enforcement discretion until there is 

final action on the permit. Finally, the amendments incorporate applicable statutory changes in House Bill 

21 29, 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 record of the public hearings and is divided 

into the following four sections: 

. Public Notification and Proposal 

. Written and Oral Testimony 

. Evaluation of 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. For further information, contact Ramiro Garcia at (512) 239-4481 or Steve Ligon at 

(51 2) 239-1 527. 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM 

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 

and reporting requirements for emissions events and scheduled maintenance, 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 

demonstration criteria 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 $5 101.221 - 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 sections would expire on June 30, 2006. This rulemaking will 

be submitted to EPA as a SIP revision; current rules have only limited approval into the SIP. 

• Ullder what authority are we proposing these changes? Texas Water Code, 95.103 and 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 9 18.14, 

77th Legislature, 2001 and HB 2129,79th Legislature, 2005. Changes to the affirmative defense 

sections are required in order to obtain full SIP approval. 

• Are there any legal deadlines by which these rules must be adopted or effective? The current 

rules contain an expiration date of January 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 expire until 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 revision to the SIP by EPA. Therefore, these amendments will 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 

implementing the statutes regarding emissions events reporting. These rules also provide 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 

expiration of $5 101.221 - 101.223 to January 15, 2006, unless the commission submits a revised 

version of these sections to the EPA for review and approval. With the submittal of this 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 notification and 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 from emissions events and MSS activities and revises some of the 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 applicable statutory 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); 

incorporate applicable statutory changes in HB 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), 

unplanned MSS activities (rather than scheduled MSS activities), excess opacity events due 

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 caused by 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 emissions or 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 entities to submit an annual report to the commission detailing 

emissions from all emissions events and scheduled MSS activities. This will inclbde major 

sources statewide and 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 $101.201 that allows regulated entities to report the best known cause at 

the time of the notification; 

add language in $101.201 that allows reporting without speciation 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; and 

addition of language in $101.222(b) and (c) that states the failure of the owner or operator 

of a facility to 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 required by federal rule, however, the changes are necessary because 

the rules expires on June 30,2005. Changes to the rules and the associated SIP must be 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. 

Staff recommendations that are not expressly required by federal rule or state statute: 

Require certain regulated entities to submit an annual report to the commission detailing 

emissions from all emissions events and scheduled MSS activities. This includes major 

sources statewide and minor sources in nonattainment, maintenance, early action compact 

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 violates emissions and opacity limitations associated with 

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. 

Will there be a fiscal impact? If so, estimate. Minor impact to the regulated community. This 

impact will be in the form of limited extra work hours to compile data that is already kept in-house 

for minor sources in nonattainrnent, maintenance, early action compact areas, 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 Office of Compliance and Enforcement. Commission enforcement policy issues 

such as the 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 addressed in a rulemaking concurrently presented for proposal. 

Stakeholder meetings: 

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 subsequent meetings were held to discuss the comments received 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 for minor reporting omissions, the amount of reporting 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, define boilers and combustion turbines, ensure the affirmative defense does not adversely 

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 from planned MSS activities emissions from affirmative defense, and 

clarify that affirmative defense does not apply to exceedences of New Source Performance 

Standards and National Emission Standards for Hazardous Air Pollutants. 

Were any changes made in response to stakeholder concerns? Yes. The addition of 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. Also added was 

language in $101.201 that allows regulated entities to report the best known cause at the time of 

the notification. In addition, language was added to $101.201 that allows reporting without 

speciation 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. 

Policy issues: 

What policy issues are affected? Commission enforcement policy issues such as the 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 addressed in a rulemaking concurrently presented for proposal. 

Are any policies that are not currently based 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 

received in 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 controversial matters: 

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, $382.0215 imply that the determinations by the commission should be based on the emissions from 

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. This procedure 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. Modifications for 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 does not support the requirement for annual reports to the commission detailing 

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 

sources in nonattainment, maintenance, early action compact areas, and Nueces and San Patricio Counties. 

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: 

Texas Register proposal publication date: July 15, 2005 

Anticipated effective date: January 5, 2006 

• Six-month Texas Register filing deadline: January 15, 2006 

Public comment: 

Public comment was received during public hearings conducted in the cities of Austin, 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 environmental groups. Comments were also received from State Representative 

Scott Hochberg. Concerns from the industrial sectors were for the scheduled elimination of an affirmative 

defense for planned maintenance activities, streamlining the reporting process, and limiting the amount of 

information required in reports and records. Comments from environmental groups centered on concerns 

for reducing the reporting requirements, for increasing reportable quantities, the need for increased 

enforcement, immediate access to emissions events reports, and changes to the demonstration criteria made 

to meet EPA guidance. 

The reporting process was further streamlined with modifications to require that total emissions be reported 

from each emissions point, rather than from each facility. The proposed amendment to increase the default 

RQ for contaminants that do not have a listed RQ from 100 pounds in a 24-hour period 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. 
Commissioners 

Page 7 

November 22, 2005 

Re: Docket No. 2005-0792-RUL 

Significant changes from proposal: 

The reporting process was further streamlined with modifications to require that total emissions shall be 

reported from each emissions point, rather than from each facility. The proposed amendment to increase 

the default RQ for contaminants that do not have a listed RQ from 100 pounds in a 24-hour period 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, Staff Attorney, 239-0466 

Patricia Dur6n, Texas Register Coordinator, General Law 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, Staff Attorney 

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, 101 201, 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 in the July 15, 2005, . 

issue of the Texas Register (30 TexReg 4090). Section 101.223 is adopted without change to the 

proposed text and will not be republished. 

These amendments are being adopted as revisions to the Texas state implementation plan (SIP) that 

will be submitted to the United States Environmental Protection Agency (EPA). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES 

The rules concerning emissions events and maintenance, startup, and shutdown activities were 

required by House Bill (HB) 2912, 95.01 and 518.14, 77th Legislature, 2001 and HB 2129, 91, 

79th Legislature, 2005. Rules implementing HB 291 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 of June 30, 2005, for 95101.221 - 101.223, in anticipation that 

these rules might require further consideration and revisions. In a subsequent rulemaking effective 

june 23, 2005, the commission extended the expiration date of june 30, 2005, to January 15, 2006, 

unless the commission submitted a revised version of 591 01.221 - 101.223 to the EPA for review 

and approval into the SIP. Upon submittal of the revisions to the EPA, these sections would expire 

on june 30, 2006. This rulemaking action removes the expiration clause; modifies and adds 

definitions and revises the 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 for 
certain 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 rulemaking would also incorporate 

applicable statutory changes in HB 2129, 51, 79th Legislature, 2005, including adopting the 

definition of "Regulated entity" to incorporate statutory requirements of HB 21 29. 

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 accepted through 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 is currently modifying the electronic reporting system to implement 

several changes including allowing for a single incident report for emissions events covering 

multiple facilities. Other revisions were 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% in the Midland Region, 62% in the Beaumont 

Region, 76% in the Houston Region, and 39% in the Corpus Christi Region. This data indicates 
that these rules have resulted in the reduction of unauthorized emissions. In addition to 

implementing legislation, these rules are adopted to provide additional incentive for further 

reductions by phasing out the affirmative defense for certain emissions. 

SECTION BY SECTION DISCUSSION 

General Administrative Rule Language Changes 

The commission adopts changing the word "which" to "that" and the word "shall" to "must" in 

numerous locations in the rule language to 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 in a section and deleting 

acronyms that are used only once in a section. The commission also adopts replacing the words 

"site" or "facility" with "regulated entity" in numerous sections to comply with HB 2129. 

Additionally, some text is revised to recognize that emissions events would now be contained 

within one report instead of a report for each facility. 

SUBCHAPTER A, DEFlNlTlONS 

The adopted amendment to 51 01 .I, concerning Definitions, adds the definitions of "Agency 

established facility identification number," "Boiler," "Combustion turbines," "Excess opacity event," 

"Regulated entity," and "Unplanned maintenance, startup, or shutdown activity." The definition of 

"Agency established facility identification number" is to be used only for purposes of Chapter 101, 

Subchapter F. An agency established facility identification number is a unique alphanumeric code 

required to 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 30 TAC Chapter 11 7 is duplicated in these general definitions since the term is used in 
multiple state air regulations. The definition of "Stationary gas turbine" is also duplicated in the 

general definitions and renamed in Chapter 101 as "Combustion turbine" since the term is also 

used in multiple state air regulations. the term "Excess opacity event" is adopted to 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 is a startup or shutdown activity that is not 

part of normal or routine facility 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. Examples of activities that would be considered to be planned 

would include plant turnarounds, scheduled plant outages, and preventative maintenance such 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 of 
predictability could include whether procedures and/or personnel assignments exist well 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 51 01.1 (68), renumbered as 5101.1(72), amends the definition of "Non-reportable 

emissions event" to no longer simply state that non-reportable emissions events are those that are 

not reportable emissions events, but to more clearly define them as any emissions event in a 24- 

hour period that does not result in an unauthorized emission equal to or in excess of an RQ. 

Adopted 51 01.1 (83), renumbered as 51 01 .1(88), amends the definition of "Reportable emissions 

event" to clarify it is any emissions event that in any 24-hour period, results in an unauthorized 

emission from any emissions point equal to or in excess of the RQ as defined in this section. 

There are several revisions adopted to the definition of "Reportable quantity (RQ)" in 51 01.1 (84), 

renumbered as 51 01.1 (89). First, as specified in 51 01.1 (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, but the CAS number should be the same. 
The Texas specific list of compounds found in 91 01.1 (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 approaching the 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 therefore the 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 revision to establish a default RQ of 5,000 pounds for air 

contaminants when there is not a listed RQ and the regulated entity is not located within 
nonattainment areas, near-nonattainment areas, maintenance areas, and early action compact areas 

was not adopted, and the default RQ remains at 100 pounds. 

In adopted 51 01.1 (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 if an RQ has been exceeded. 

In adopted 51 01.1 (89)(C), the proposed language concerning opacity only reporting for boilers and 

combustion turbines 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 hazardous air pollutants or 

highly reactive volatile organic compounds at more than 0.02°/~ by weight, was not adopted. The 

commission added language noting that the terms "boilers" and "combustion turbines" are now 

defined in 51 01.1 (6) and (14). 

The adopted amendment to 51 01.1(86), renumbered as §101.1(91), clarifies that the emissions 

from a scheduled maintenance, startup, or shutdown activity will be considered as part of the 

activity if they do not exceed the estimates in the notification by more than an RQ. The term 

"facility" is replaced with "regulated entity." These changes were required by HB 2129. 

Additionally, the phrase "whether performing or otherwise affected by the activity," was added to 

clarify that if the actions of another regulated entity actions caused a regulated entity the need to 

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 (1 05), renumbered as 5 101.1 (1 1 O), the 

definition of "Upset event." The amendment replaces the phrase "or unanticipated occurrence" 

with "and unavoidable breakdown." This clarifies that upset events are those that are beyond the 

control of the operator. A sentence has been added to the definition of "Upset event" due to 

changes in the 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 of the 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 in a pipeline carrying natural gas or liquids or 

unanticipated and unpredicted damage or breaks to a pipeline facility. The remaining definitions in 

5101 .I are renumbered accordingly. 

Subchapter F: Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities 

Division I : Emissions Events 
Section 7 0 7.20 7 - Emissions Event Reporting and Recordkeeping Requirements 

The commission adopts the requirements for reporting to local air pollution control agencies with 

jurisdiction to 51 01.201 (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 required to report emissions 

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 in the notification and report. 

References to "notification," "initial notification," and "24-hour notification" have been revised to 

read "initial 24-hour notification" in 51 01.201 (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 of the commission Regulated Entity Number (RN) of the regulated entity 

experiencing an emissions event. If the regulated entity does not have an RN, then the air account 

number will be identified. Now that 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 necessary 

to report incidents via the agency's electronic reporting system. 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. Accordingly, 5101.201 (a)(2)(C) and (3)(C) is 

deleted, since this information is required by 5101 201 (b)(l)(C) for final reports and is sufficient 

information regarding location. Subsequent subparagraphs are relettered accordingly in 

5 101 201 (a)(2) and (3). 
The commission adopts the 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 of the language requiring the reporting of authorized 

emissions limits and if applicable, the estimated opacity and the authorized opacity limit in 

51 01.201 (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 51 01.201 (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 in the initial notification. Opacity is not an emission, and therefore not 

necessary for evaluation of impacts. The subsequent subparagraphs of 51 01.201 (a)(3) are 

relettered accordingly. 

The commission deletes 51 01.201 (a)(4), moving the language to 51 01.201 (0. Section 

101.201 (a)(5) is renumbered as 51 01.201 (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) into two 

paragraphs, subsection (b)(l) and (2). The commission adopts the amendment to 5101.201 (b)(l) to 

outline the provisions required in final records of reportable emissions events. The existing 

paragraphs in 51 01.201 (b) are relettered as subparagraphs (A) - (L). 

The commission adopts the amendment to 51 01.201 (b)(l)(B) and (2)(B) to provide new language 

that requires identification of the commission RN of the regulated entity experiencing an emissions 

event. If the regulated entity does not have an RN, then the air account number will be identified. 

Now that 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 necessary to report incidents via the 

agency's electronic reporting system. If the 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 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 51 01 20'1 (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 in total from the entire 

event, as opposed to reporting the emissions contributed by each facility experiencing the 

emissions event. However, it is necessary that the commission evaluate the potential excessive 

impact by facility to meet the statutory requirement. 

Adopted 51 01.201 (b)(7), renumbered as subsection (b)(l)(G), provides language that requires the 

reporting of air contaminants from all emissions points involved in the emissions event, and 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 addresses concerns expressed at the stakeholder meetings that it is difficult and 

unnecessary to speciate and report very small quantities of chemicals involved in a reportable 

event. 

Adopted 51 01.201 (b)(8), renumbered as subsection (b)(l)(H), is amended to eliminate reporting of 

the authorized opacity limit and opacity estimate in the 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 report 
should only include facilities that have unauthorized emissions. The commission does not require 

information about facilities involved in the event 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 if those exist and are applicable to emissions from that event. 

These must only be reported if those 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 unauthorized emissions must be included in the report. 

The commission adopts the amendment to 51 01.201 (b)(1 O), renumbered as 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 51 01.201 (b)(2) to outline the provisions required in records of nonreportable emissions events. The commission also adopts the amendment to 51 01.201 (b)(2)(A) - (J) 

to provide separate provisions for required records for non-reportable emissions events. 

The adopted requirements in 51 01.201 (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 require the reporting of the common name of the 

process unit or area, the common name and the agency-established facility identification number of 

the facilities that experienced the emissions event, and the common name and the agencyestablished emission point numbers where the unauthorized emissions were released to the 

atmosphere. Section 101.201 (b)(2)(D) also provides that owners and operators of those facilities 
and emission points for which the commission has not established facility identification numbers or 

emission point numbers are not required to provide the facility identification numbers and 

emission point numbers in the report, but are required to provide the common name in the report. 

The commission adopts the deletion of the word "event" in 5101.201 (b)(2)(F) to ensure that the 

duration of the actual emissions is recorded. 

The commission adopts 51 01.201 (b)(2)(G) to require the reporting of air contaminants from all 

emission points involved in the 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 unnecessary to speciate and report very small quantities of 

chemicals involved in a reportable event. 

In adopted 51 01.201 (b)(2)(H), the commission requires, for those compounds or mixtures 

described in 51 01.201 (b)(2)(G), the recording of the estimated total quantities and the authorized 

emissions limits for those compounds or mixtures, the preconstruction authorization number or 

rule citation of the standard permit, permit by rule (PBR), or rule governing the regulated entity 

involved in the emissions event, authorized emissions limits for the facilities involved in the 

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 in 
the event 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 if those 

exist and are applicable to emissions from that event. These must only be reported if those 

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 intends that only those facilities which have unauthorized emissions 

must be included in the 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 consistent with the methods used in the applicable permit application, 

rule, or order of the commission, and that for all other situations, good engineering practice should 

be utilized. The commission adopts a clarification that estimates of emissions for records of nonreportable emissions events must be based on good engineering practice and methods to provide 

reasonably accurate representations for emissions and opacity. 

Adopted 51 01.201 (b)(2)(H) allows for the compounds or mixtures of air contaminants listed as 

"other" under 51 01.201 (b)(2)(G) to be treated as a group for estimating emissions. 

The commission adopts 5101.201 (b)(2)(1) to require the recording of the best known cause of the 

emissions event at the time of recording. 

The commission adopts 51 01.201 (bI(2)U) to require the recording of the best known cause of the 

emissions event at the time of recording. 

The commission adopts 51 01.201 (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 recording of any additional information 

necessary to evaluate the emissions event. 

The commission adopts the addition of the requirement to report to local air pollution control 

agencies with jurisdiction to 51 01.201 (c) to clarify that local air pollution agencies should receive 

initial notifications and final reports. 

In adopted §101.201 (d), the proposed language that 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 language that is now 

covered in the definition of "Excess opacity event" in 5101 .l. the commission adopts the 

amendment to add reporting to local air pollution control agencies with jurisdiction to §I01 201 (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 requirement to identify the 

commission RN of the regulated entity experiencing an excess opacity event. If the regulated entity 

does not have an RN, then the air account number will be identified. Now that 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 necessary to report incidents via the agency's electronic 

reporting system. 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. 
The commission adopts the amendment to §101.201 (e)(8) to change the term "source" to 

"facilities" to make this reporting requirement consistent with other uses of the term "facility" in the 

rule as well as the changes of the term "facility" to "regulated entity." 

The commission adopts the amendment to §101.201 (e)(9) to add the term "best known" and "at the 

time of the 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 to the 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 regarding the emissions event when requested by 

the executive director or any air pollution control agency with jurisdiction, within the time 

established in the request. 

The commission received input from regulated entities that input of the 24-hour report into the 

commission's Web server has caused many personnel and operational problems. To address this 

concern, the commission has added language to 51 01.201 (g) to allow submittal by facsimile, or 

electronic mail to meet the 24-hour requirement as long as the same information is input into the 

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 51 01.201 (g) and (h)(3) is corrected to refer to 

Texas Water Code, 55.1 35(g)(2). 

The commission adopts the amendment to delete the existing language in 5101 201 (h) and add 

language to 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 2007 to allow for a 

full year of records following 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 5101.1 0 and are located in nonattainment, 

maintenance, early action compact areas, Nueces County, and San Patricio County, that experience 

at least one emissions event 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 51 01.201 (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 51 01.201 (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 

in the 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, and Shutdown Activities 

Section 7 0 7.2 7 7 - Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping 

Requirements. 

The commission adopts the amendment to 5101.21 1 (a) to clarify that actual emissions from 

maintenance, startup, or shutdown activities that exceed the estimated emissions in the initial 

notification by more than an RQ are either upsets or unplanned startup, shutdown, or maintenance 

activities. This change is required by HB 2129. The factor determining whether the event 

becomes an emissions event or an unplanned startup, shutdown, or maintenance activity will be 

the cause of the exceedance. If the unanticipated emissions result from a sudden breakdown of 

equipment that occurs during the scheduled activity the event would be treated as an upset. 

However, if during a siheduled maintenance activity additional maintenance is required that 

results in the unanticipated emissions, and that maintenance was unforseeable and requires 

immediate corrective action to avoid a malfunction, then the event would be treated as an 

unplanned maintenance activity. this distinction is made to reflect the changes to 51 01 222, 

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 consistency with 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 reference to §I01 .l, where excess 

opacity is defined, and accordingly deletes the reference to 51 01.201 (e) for excess opacity. 

The commission adopts 31 01.21 1 (a) to clarify that for facilities with emissions authorizations, the 

determination for reporting of emissions must be based on good engineering practice and methods 

to provide reasonably accurate representations for 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 requires the identification of the commission RN of the regulated entity 

experiencing the activity. If the regulated entity does not have an RN, then the air account number 

will be identified. If the 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 language that requires the 

reporting of air contaminants by all emissions points involved in the activity, and to allow the 

reporting of compounds or mixtures 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." 

The commission adopts the amendment to S101.211 (a)(l)(l) and existing language in subsection 

(b)(9), renumbered as subsection (b)(l)(l), to add language requiring the reporting of the quantities 

of emissions by utilizing good engineering practice and methods to provide reasonably accurate 

representations for emissions and opacity. Language has also been added to allow for the 

compounds or mixtures of air contaminants listed as "other" under S101.211 (a)(l)(H) to be treated 

as a group for estimating emissions. The report should only include facilities that have 

unauthorized emissions. the commission does 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 if those 

exist and are applicable to emissions from that activity. These must only be reported if those 

emissions were evaluated and included in the authorization. In addition, where the words 

"experienced," "incurred," or "involved" are used in S101.201 and S101.211 regarding reporting 

of facilities, the commission intends that only those facilities that have unauthorized emissions must 

be included in the report. 

The commission adopts the amendment to S101.211 (a)(2)(F) to require the reporting of the 

expected duration of any maintenance activity. The commission also adopts the amendment to 

S101.211 (a)(2)(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 51 01.21 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 51 01.21 1 (b) to separate subsection (b) into two 

paragraphs, paragraphs (1) and (2). The commission adopts 5101.21 1 (b)(l) to outline provisions 

regarding final 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), is amended to provide language that 

requires identification of the commission RN of the regulated entity experiencing the 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 51 01.21 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 maintenance activity. 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), is amended to provide language that 

requires the reporting of air contaminants involved in the emissions activity, and to allow for the 

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." 

The commission adopts the amendment to 5101.21 1 (b)(9), relettered as subsection (b)(l)(l), to 

delete the reference to existing paragraph (8) and to refer to the relettered subparagraph (H). Also, 

the commission adopts the requirement that good engineering practice and methods must be used 

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 

51 01.21 1 (b)(8) to be treated as a group for estimating emissions. The report should only include 

facilities that have unauthorized emissions. The commission does 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 if those exist and are applicable to emissions from that activity. These must only be 

reported if those 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 intends that only those facilities that have unauthorized 

emissions must be included in the report. 

The commission adopts 5101.21 l(b)(2) to outline the provisions required in records of nonreportable emissions events. The commission also adopts 5101.21 1 (b)(2)(A) - (I) to add provisions 

regarding final records for 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 5 101.21 1 (b)(l)(A) - (I). 

Adopted 5 101.2 1 1 (b)(2)(F) is amended to require the reporting of the expected duration 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 51 01.21 1 (b)(2)(H) to require the recording of the compound descriptive 

type of the individually listed compounds or mixtures of air contaminants, in the definition of RQ in 

51 01 .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 51 01.21 1 (b)(2)(1), the commission added the requirements to record the quantities of 

emissions determined utilizing good engineering practice and methods to provide reasonably 

accurate representations for emissions and opacity, the commission adopts the amendment to 

51 01.21 1 (b)(2)(1) to add language to allow for the compounds or mixtures of air contaminants listed 

as "other" under 51 01.21 1 (b)(2)(H) to be treated as a group for estimating emissions. 
The commission adopts the amendment to add language to 51 01.21 1 (c) to require that reporting 

for scheduled maintenance, startup, or shutdown activities must also be reported to the appropriate 

local air pollution agencies with jurisdiction. 

In adopted 51 01.21 1 (d), the proposed language allowing boilers and combustion turbines 

equipped with a continuous emission monitoring system using fuels with less than 0.02°/~ 

hazardous air pollutants or highly reactive volatile organic compounds, are exempt from creating 

and submitting final records if the'information in the initial notification is the same as in the final 

report, was not adopted. 

The commission adopts the amendment to 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 amendment to 5101.211 (f) to require annual reporting of emissions 

resulting from scheduled maintenance, startup, and shutdown activities by regulated entity. The 

reporting requirement would begin in 2007 to allow for a full year of records following adoption of 

this rule. This report is required for owners or operators that are subject to reporting under 

5101 .lo, and owners and operators that are not subject to 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 include the total 
number of reportable and the total number of non-reportable emissions events experienced at the 

regulated entity. Adopted 51 01.201 (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 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 utilizing good 

engineering practice and methods to provide reasonably accurate representations for emissions. 

Section 101.201 (h)(2) does not apply to boilers and combustion turbines referenced in the 

definition of RQ in 51 01 .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 51 01.2 1 1 (f)(3) is corrected to refer to Texas Water Code, 55.1 35(g)(2). 

Division 3: Operational Requirements, Demonstrations, and Actions to Reduce Excessive 

Emissions 

Section 7 0 7.22 7 - Operational Requirements 

The adopted amendment to 5101.221 (d) adds the phrase "including New Source Performance 

Standards (40 Code of Federal Regulations Part 60) and National Emission Standards for 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 51 01 221 (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 of the changes in 51 01.222. 

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

The commission adopted several changes to 51 01.222. The changes, in part, address comments 

made by EPA regarding approval of these rules as a revision to the SIP. These changes meet EPA's 

guidance for when an affirmative defense or enforcement discretion can be used with regard to 

excess emissions. Specifically, the changes reflect the 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 in Texas 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 if the emissions are not at least an RQ of 

unauthorized emissions, and the activity is reported or recorded, as provided in 51 01.201 and 

5101.21 1. This statutory definition does not limit these activities to those that are sudden, 

unavoidable, and unpredictable. In other words, scheduled maintenance, startup, and shutdown 

activities are determined only with regard to reporting requirements, and not as to whether they are 

those that could be planned. EPA guidance describes scheduled maintenance as 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 in the 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 prevented through careful planning and design, and when bypassing control equipment is 

unavoidable to 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, 

51 01.222(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 if the 

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 51 01.222(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 51 01 201 and 51 01.21 1. In addition, as part of the 

revisions to the State of Texas Environmental Electronic Reporting System (STEERS), discussed later 
in this preamble, the commission is adding a question to the reporting requirements that will allow 

the reporter to answer "yes" or "no" as to whether the regulated entity asserts the reported event or 

activity meets the applicable affirmative defense criteria. 

Adopted §101.222(b) is revised to designate that this subsection concerns non-excessive upset 

events, rather than non-excessive emissions events. A sentence has been added to the definition of 

"Upset event" due to changes in the structure of §101.222(b). Section 101.222(b) had previously 

covered all emission events, but will now only cover upset events. Upset events are, by definition, 

a subset of emissions events. Due to this change, it was important to make clear that a certain set 

of events that are initially reported as maintenance, startup, or shutdown activities are still covered 

by §101.222(b). These events are instances where a maintenance, startup, or shutdown activity is 

reported prior to the beginning of activity and the emissions are estimated, but the emissions 

exceed the estimated amount by more than an RQ due to an upset-type condition. These types of 

events have historically been covered by 51 01.222(b) and this change is meant to ensure that they 

are still covered under that subsection. 

The commission adopted the amendment to §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 according to this rule, unless the 

owner or operator knowingly or intentionally falsified the information in the 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 51 01.222(b)(3) does not include the proposed reasonableness standard 

for determining this criteria. The 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." 

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 minimize the 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 language that provides that emissions from 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 is available for all claims in enforcement actions for these emissions, 

other than claims for administrative technical orders and actions for injunctive relief, if the 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 to 
the 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 language that 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 unless the owner or operator knowingly or 

intentionally falsified 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 modified to 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 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 91 01.222(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. In addition, 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 91 01.21 1 (a) was not reasonably possible, as well as the remaining 

criteria in 9101.222(~)(2) -(9). 

The commission adopted the amendment to 91 01.222(~)(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 consistency with 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 minimize the impact of the unauthorized emissions on ambient air 

quality. 

The commission amended the applicability of adopted 51 01.222(d) to excess opacity events as 

those due to an upset, rather than applying to 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 51 01.222(d)(2), renumbered as subsection (d)(3), does not include the 

proposed reasonableness standard for determining this criteria. the 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." 

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), is amended 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 resulting from scheduled startup, and shutdown activities to opacity events resulting from 

unplanned maintenance, startup, and shutdown activities. The adopted amendment to 51 01.222(e) 

also deletes the language that provides that emissions from scheduled maintenance, startup, and 

shutdown activities are required to meet the requirements of 51 11 .l 1 1 (a), unless the owner or 

operator proves the criteria in subsection (e)(l) - (9). The adopted language provides that an 

affirmative defense is available for all claims in enforcement actions for certain emissions, other 

than claims for administrative technical orders and actions for injunctive relief, if the owner or 

operator proves that the excess opacity resulted from 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 emissions from these activities, and does 

not apply to subsequent or independent obligations, such as recordkeeping or reporting. The 

adopted amendment to 5 101.222(e) also removes references to maintenance emissions, which is 

addressed in 5101.222(h). 

The adopted amendment to 5101.222(f) provides that 5101.222(b) - (e) and (h) does not remove 

any obligations to comply with any other existing permit, rule, or order provisions that are 

applicable to an emissions event or a maintenance, startup, or shutdown activity. To comply with 

EPA policy, subsection (f) is also amended to provide that the affirmative defense is available only 

for emissions that are reported or recorded. Those entities that are not required by 5101.201 and 

5101.21 1 to record or report unauthorized emissions may voluntarily comply with the recording 

requirements of those sections to ensure the availability of the affirmative defense. 
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 intends to begin allowing authorization of emissions from these types of activities 

according to the 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, replaces the proposed schedule 

which had provided the affirmative defense be phased out as permits come in for renewal, 

amendment, or issuance, or in two 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 (Chemicals and Allied Products), except SIC code 

2895, the affirmative defense will expire in two years from the deadline for filing an application. 

For all other facilities, the affirmative defense will expire one year from the deadline for filing an 

application. The affirmative defense will continue to apply to all claims in enforcement actions 

brought for 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 permitting schedule 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 affirmative defense in subsection (i) is tied to the 

schedule for submitting applications. The application submittal schedule is a tiered schedule, tied 

tocertain SIC codes. the first deadline, one year after the effective date of this section, is for 

facilities in SIC code 291 1 (Petroleum Refining). The second deadline, two years after the effective 

date of this section, is for 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), is four years 

after the effective date of this section. The deadline for facilities in SIC code 491 1 (Electric 

Services), is five years after the effective date of this section. The next deadline for facilities in SIC 

codes 131 1 (Crude Petroleum and Natural Gas), 1321 (Natural Gas Liquids), 4612 (Crude 

Petroleum Pipelines), 461 3 (Refined Petroleum Pipelines), 4922 (Natural Gas Transmission), and 

4923 (Natural Gas Transmission and Distribution), is six years after the effective date of this section. 

For all other facilities, the deadline for filing an application is seven years after the effective date of 

this section. 

In addition, adopted 5101.222(h)(2) requires, that in addition to meeting the application deadline, 

the owner or operator must provide prompt responses to the executive director's requests for 

information regarding an application filed according to the schedule in subsection (h)(l)(A) - (F). 

Finally, the adopted amendment to 51 01'.222(h) deletes the current language providing an 

expiration date for the section. 

The commission adopts 5101.222(i) to provide the schedule for the phase out of the affirmative 

defense in 5101.222(h). It will 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 application filed under subsection (h)(l)(A) and (C) - (F). 
The affirmative defense in subsection (h) will expire upon the earlier of two years after the 

application deadline in subsection (h)(l)(B) or the issuance or 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 pending after 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 51 01.222(c) and (e), until the issuance or 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 10 7.223 - Actions to Reduce Excessive Emissions 

The adopted amendment to 51 01.223(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 IMPACT ANALYSIS 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 rulemaking does 

not meet the definition of a "major environmental rule." -the adopted rulemaking does not meet 
any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). A 

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

or reduce risks to human health from environmental exposure, and that may adversely affect in a 

material way the economy, a sector of the economy, productivity, competition, jobs, the 

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

amendments revise the notification and reporting requirements and demonstration criteria for 

emissions events and scheduled maintenance, startup, and shutdown activities. The adopted 

rulemaking adds the concepts of unplanned and planned maintenance, startup, and shutdown 

activities. The adopted rulemaking also provides for an affirmative defense for certain emissions 

from upset events and unplanned maintenance, startup, and shutdown activities, including excess 

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 activities 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 rulemaking modifies and adds definitions, and also implements HB 2129, 

51. The adopted amendments will not adversely affect, in a material way, the economy, a sector of 

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

the state or a sector of the state. 

In addition, Texas Government Code, §2001.0225, only applies to a major environmental rule, the 

result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required 

by state law; 2) exceed an express requirement of state law, unless the rule is specifically required 

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

and an agency or representative of the federal government to implement a state and federal 
program; or 4) adopt a rule solely under the general powers of the agency instead of under a 

specific state law. 'the adopted 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 is the subject of this 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 Code that are cited in the 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), because the adopted amendments do not meet any of the four applicability 

requirements. 

The commission did not receive any public comment regarding the draft regulatory impact analysis 

determination during the public comment period. 

TAKINGS IMPACT ASSESSMENT 

The commission completed a takings impact analysis for the adopted amendments. The specific 

purpose of this rulemaking is to 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 defense for certain emissions from upset events and 

unplanned maintenance, startup, and shutdown activities, including excess 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 activities 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 rulemaking modifies and adds definitions, and also implements HB 2129, 51. 

Promulgation and enforcement of the adopted amendments 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 in the absence of a governmental action. Therefore, the 

adopted amendments do not constitute a takings under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates to 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 Consistency with the CMP. As required by 

5281.45(a)(3) and 31 TAC 5505.1 1 (b)(2), relating to Actions and Rules Subject to the Coastal 

Management Program, commission rules governing air pollutant emissions must be consistent with 

the applicable goals and policies of the CMP. The commission reviewed this action for consistency 

with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, 

and determined that the action is consistent with 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 (31 TAC 5501.12(1)). No 

new sources of air contaminants will be authorized and the amendments will maintain the 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 in the coastal areas (31 TAC §501.14(q)). This rulemaking action complies with 

40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. 
Therefore, in accordance with 31 TAC 5505.22(e), the commission affirms that this ruiemaking 

action is consistent with CMP goals and policies. 

EFFECT ON SITES SUBJECT TO 'THE FEDERAL OPERATING PERMITS PROGRAM 

Sections 101.201 - 101.223 are applicable requirements under 30 TAC Chapter 122, Federal 

Operating Permits Program. Upon the effective date of this rulemaking, owners or operators 

subject to the Federal Operating Permit Program will be required to certify compliance with 

amended 551 01.201 - 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 Representative Scott Hochberg, Arkema, The Association of Electric Companies 

of Texas, Inc. (AECT), Baker Botts L.L.P., on behalf of the 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 Professionals for 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), Sierra 
Club - 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 predictable emissions 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 endorsed the comments submitted by 

TCC. Devon, Duke, Kinder Morgan, and ExxonMobil Production endorsed the comments 

submitted by TxOGA. Duke and Kinder Morgan endorsed the comments submitted by the TPA. 

MCA commented that it supports 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 improvement of Houston's air quality 

necessary to meet federal standards to protect human health. 

RESPONSE 

The commission appreciates the support. However, these rules only address the actions based 

on receiving reports of unauthorized emissions 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 and 
protection of air quality is attained through a number of measures, including permitting, SIPS, 

monitoring, and compliance investigations. 

GENERAL COMMENTS 

TIP, TCC, ExxonMobil Downstream, and EIP commented that they appreciate the 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 reissue the 

proposed rules to carry out the letter and intent of HB 2129 

RESPONSE 

The commission appreciates the support, and specific suggestions are addressed later in this 

preamble. The commission declines to withdraw this rulemaking. The commission is committed 

to timely submitting the rules to EPA as a revision to the SIP so that there is no gap in the 

opportunity to claim an affirmative defense for certain unauthorized emissions. Two sets of 

stakeholder meetings were held throughout the state prior to the commission's proposed rules 

were published for comment. Those concerns are addressed by these rules and operational 

changes which implement the rules. In addition, concurrent with this adoption, the commission 

is proposing rules regarding a variety of options to address concerns about obtaining 

authorization for historically excess emissions. 

,Duke applauds the commission for the proposed changes that are consistent with the spirit of HB 

2129, commenting that these changes focus on the environmental benefits instead of reporting 

format. 
RESPONSE 

The commission appreciates the support. 

EIP commented that the commission should ensure that these rules meet all Federal Clean Air Act 

(FCAA), EPA, and legislative requirements, and that they provide an effective framework for 

reducing excess emissions to the maximum extent possible. 

RESPONSE 

These rules provide an 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 

become authorized. The transition schedule will allow time for a meaningful review of permit 

applications. These rules meet the applicable legal requirements and have been revised to 

ensure approval by EPA as a revision to the SIP. 

EPA requested that the commission confirm that it interprets all unauthorized emissions above 

allowable limitations in permits, rules, and orders a subject to 51 22.145(2), regarding deviation 

reporting for sources subject to the commission's Federal Operating Permit Program. 

RESPONSE 

The commission agrees that owners and operators of facilities that are subject to the Federal 

Operating Permit Program with unauthorized emissions are subject to deviation reporting. 

EIP commented that regulation of excess emissions is essential because a significant quantity of 

unpermitted air pollutants are released as a result of emissions events and scheduled maintenance, 
startup, and shutdown activity. Forty-three individuals requested that the commission abide by the 

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 provide an 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 

become authorized. the transition schedule will allow time for a meaningful review of permit 

applications. The rules do not limit the commission's authority to obtain corrective action and 

seek injunctive relief. In addition, 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 continue to hold the owners and operators responsible for their unauthorized 

emissions and require them to come into compliance. 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 

101.21 1(f) require additional reporting by certain owners or operators of facilities to submit 

annual emissions event and maintenance, startup, and shutdown activity emissions reporting to 
ensure more accountability for excess emissions. No specific changes were made to the rules in 

response to these comments. 

BSA, Public Citizen, and Sierra Lone Star commented that 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 beyond the scope of this rulemaking. However, as a general response to the 

comment, ESLs, while not enforceable standards, are used to establish permit limits that are 

enforceable standards. If an 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 exceedance of the permit limit once a full investigation has been completed. No changes 

were made to the rules in response to this comment. 

BSA, Public Citizen, and Sierra Lone Star commented that modeling for the SIP should include air 

contaminants from emissions events and maintenance, startup, and shutdown activitie's, and this is 

particularly true for modeling for the Dallas-Fort Worth (DFW) SIP. BSA also expressed concern 

regarding how permit limits, particularly those with 30-day rolling average limits, are included in 

the SIP modeling when a huge spike of ozone precursor emissions is an upset, but is not a permit 

violation. 

RESPONSE 
Photochemical modeling for the Texas SIP revisions incorporates the reported emissions 

inventories that include all authorized and unauthorized emissions. In addition, hourly special 

inventories were developed for the Houston-Calveston-Brazoria (HCB) and Beaumont-Port 

Arthur (BPA) SIP attainment modeling demonstrations, providing hourly emissions 

quantifications and chemical speciation for all deviations from normal operations, including 

emissions from emissions events and maintenance, startup, and shutdown activities. 

Additionally, the predecessor of the Comprehensive Compliance Enforcement Database System 

(CCEDS) was queried for emissions events and added to the hourly inventory if such emissions 

were not already captured by the hourly special inventory. Future modeling is expected to take 

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 prepared for the Texas Air Quality Field 

Study II that is currently taking place (Spring 2005 - October 2006.) 

Because of the magnitude and nature of the industries in the DFW area, emission events in the 

DFW area are not expected to play a role in the majority of high ozone events in the area. 

However, emissions variability from major oxides of nitrogen sources undoubtedly play a role in 

determining the ozone concentrations seen across East Texas, including downwind areas of 

DFW. The 30-day rolling average permit limits are applied only to those sources that 

demonstrate a high level of variability in their load or emissions. For those sources, instead of 

permitting a high hourly emission limit that the source can comply with under all circumstances, 

it is preferable for the source to comply with a permit rate that is substantially lower when 

averaged over a 30-day rolling period. One way the commission addressed this variability is 

through the use of the Acid Rain Program Database in SIP modeling. These data provide hourly 

-46- 
emissions from all large electric generating units in Texas and elsewhere. In addition, the 

commission has recently undertaken a study of variability in cement kiln emissions and expects 

to use the results of this study in future modeling applications. No changes were made to the 

rules in response to this comment. 

BSA stated that the commission's scheduling of the rulemaking hearing on a weekday morning was 

at a time which is not available for most citizens to attend. The commission should start 

incorporating time for citizen involvement because citizens have the biggest burden to make sure 

the law is enforced, because the commission and EPA cannot do all of the enforcement. 

RESPONSE 

With regard to this rule project, due to the schedule, time constraints, and availability and access 

to appropriate facilities, the commission had limited opportunity to schedule hearings in the 

evening. The commission strives to give all citizens of Texas appropriate prior notification and 

several opportunities to 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 determining compliance with emission limitations in 

SIP-approved permits, rules, and orders. 

RESPONSE 

The commission responds that all emissions events and maintenance, startup, and shutdown 

activities are 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 is constructed 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 

investigations on 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 in flare 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 

monitoring of flares and data logging of other pertinent data to ensure that e~nissions events and 

smoking flares are being accurately reported. 

RESPONSE 

The coinmission responds that the commenter's suggestion to require video monitoring and data 

logging on flares is beyond the scope of this rulemaking. In addition, there is currently no 

available video monitoring technology that would allow long-term continuous direct monitoring 

and quantification of emissions from 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 in flare activity by itself does not 
necessarily 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 

compliance with the visible emission limitations for flares specified in 40 CFR §60.18(c)(l). 

There are technical and practical issues associated with the suggested monitoring approach that 

call into question the feasibility and enforceability of implementing video monitoring 

requirements for flares. No changes were made to the rules in response to this comment. 

An individual commented that input flow 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 reported to the commission, with deviations resulting in 

punitive action. 

BSA commented that 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 imperative that 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 emissions events, 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 necessary and has made adjustments to 

the investigation protocol to ensure a timely and consistent review of all emissions events. No 

changes were made to 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 by the associated violations. CE] commented that companies are not fined for upsets, or, 

fines are so small that the companies benefit from polluting. 

Several individuals commented that fines should be levied regardless of the reason emissions are 

released and all so called accidental releases should be investigated thoroughly and action taken to 

keep it from reoccurring; with a second offense, fines should double or be great enough to clean 

up the air either through emissions reduction or through controls and purification technology; the 

commission represents the safety of Texans and is responsible for 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 allowed to 

poison the atmosphere; incidents should not go uninvestigated; unenforceable laws are worthless 

and provide no motivation to change if there 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 

No changes were made in response to these comments. These comments are beyond the scope 

of this rulemaking because these rules do not generally address the enforcement procedures or 

penalties. 
BSA, Public Citizen, and Sierra Lone Star Club commented that the legislature should allow cities 

and counties the right to sue the commission and companies if laws are not enforced. 

RESPONSE 

The commission responds that these comments are beyond the scope of this rulemaking because 

the commission cannot adopt rules directing legislative action. No changes were made to the 

rules in response to this comment. 

An individual expressed concern about the time it takes to respond to 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 in commission protocols, rather than in rules. No changes were 

made to the rules in response to this comment. 

An individual commented that he was told flaring is not handled by the commission, but it should 

be because we do not know what kind of contaminants are being put into the air. 

RESPONSE 

The commission responds that emissions from flares are regulated by the commission. For nonemergency flares, authorization limits the type and amount of emissions allowed. For emergency 

only flares, a notification and report of what was emitted is required. No changes were made to 

the rules in response to this 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 is currently seeking comments from stakeholders regarding future rulemaking 

for 30 TAC Chapter 75, Administrative Penalties, including six stakeholder meetings. More 

information may be found 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 

monitoring at facilities' fence lines, including additional monitoring for 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 in other 

areas in response to excess emissions and for other reasons. The commission is also 

incorporating new monitoring technologies, 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 

operators to 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 flare 
minimization 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 

in future eight-hour ozone regional control strategy development; however, the application of 

flare requirements similar to the BAAQMD rules to Chapter 101, Subchapter F is beyond the 

scope of this rulemaking. These Chapter 101 rules provide incentives for owners and operators 

to avoid excess emissions, without prescribing operational methods or controls that may be 

expensive. Also, application of the BAAQMD flare 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. In addition to this burden, the commission does not consider it necessary 

to apply the BAAQMD rules on a statewide basis. The BAAQMD flare rules only apply to a 

limited number of flares in California. The BAAQMD Environmental Impact Report (July 8, 

2005) indicates that 23 flares located at five petroleum refineries in Contra Costa and Solano 

Counties are subject to the BAAQMD flare rules. According to BAAQMD's Staff Report, 1.5 fulltime employees were necessary to implement the flare rules for these 23 flares. Assuming 

equivalent staffing demands, over 50 additional full-time employees would be needed for the 

commission to implement similar rules for the 782 active flares (as of September 2005) in just the 

HCB and BPA areas. No changes were made to the rules in response to this 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 the 
commission 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 in the 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 permitting emissions from maintenance, startup, and 

shutdown. 

Public Citizen commented that upset emissions can be up to 37 times permitted hazardous air 

pollutants, and that startup/shutdown emissions can also exceed permitted amounts. Without 

permitting these 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 in Texas. 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, allowing for the orderly transition of 

planned maintenance, startup, and shutdown emissions from a vast number of facilities to 
become authorized. The transition schedule will allow time for a meaningful review of permit 

applications for compliance with the requirements of best available control technology and 

impacts analysis. The commission determined that there is a high probability that no negative 

health effects would be expected from the 5,000-pound in a 24-hour period level for oxides of 

nitrogen in areas other than ozone nonattainment areas, ozone maintenance areas, early action 

compact areas, Nueces County, and San Patricio County. The proposed default RQ of 5,000 

pounds for all non-listed compounds within areas other than nonattainment areas, nearnonattainment areas, 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 has jurisdiction regarding pipelines, however, the 

commission has jurisdiction of air contaminants, and is charged with safeguarding the states's air 

resources from 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. This is discussed in detail in 

the response to comments regarding the 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 pipelines are 
from 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. Pipelines are not the only facilities that are subject to 

other governmental regulation, and therefore the fact that DOT regulates certain pipelines does 

not affect the commission's jurisdiction with regard to corrective action that may be required to 

abate air pollution from pipelines or associated facilities. Corrective action required by the 

commission for unauthorized emissions would not be contrary to RRC or DOT requirements. 

The issue of jurisdiction is discussed later in this preamble in response to comments regarding 

the definition of "Regulated entity." 

TCC and ExxonMobil Downstream commented that reporting and evaluation of emissions from 

emissions events and maintenance, startup, and shutdown activities with emissions only divided up 

by the emission point number would be consistent with 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 in total for each emission point, and that the 
facilities experiencing the emissions event be identified in the report. Other subsections of 

8101.211 retain the requirement to report by emissions point. 

TCC and ExxonMobil Downstream commented that determination of reporting requirements based 

on the total emissions from the event will likely result in additional emission events and 

maintenance, startup, and shutdown activities being reported. 

RESPONSE 

'There is no requirement that emissions stemming from a common cause must be reported in 

total for the regulated entity. The commission revised the rule to require that unauthorized 

emissions be reported in total for each emission point. The determination of whether emissions 

are reportable shall be based on the comparison of contaminant levels at the emissions point to 

the RQ for each of the contaminants. It is unknown whether this revision will result in 

significantly more emissions event reports. However, the revisions to require emissions events 

reports by common cause for each regulated entity, as opposed to reports for each facility, will 

significantly reduce the 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 numerous facilities that could, without benefit, be tied to the 

event. 
RESPONSE 

The commission adopted reductions to the notification, reporting, and recordkeeping 

requirements in the 5101.201 and 5101.21 1. These rules now require that a minimum amount 

of information be reported that allows the commission to make the initial response evaluation 

and to make final determinations. 

SUBCHAPTER A, DEFINITIONS 

TxOGA supports the commission's proposed amendment to 5101.1 (1) - (87) and proposed no 

other changes to existing language. 

RESPONSE 

The commission appreciates the 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 commented that it supports the addition of the definition of combustion turbine in 

§101.1(13). 

RESPONSE 

The commission appreciates the comment. 

Duke supports the proposed definition of an emissions event in 51 01.1 (27). 
RESPONSE 

The commission appreciates the comment. 

Sierra Houston commented that it does not agree with the proposed definition for excess opacity 

event in 51 01.1 (3 1). Sierra Houston commented the excess opacity action level should be 

changed to 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 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 in the amount of emissions. Opacity at 15% above an authorized level is a 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. 

Duke supports the proposed definition of a non-reportable emissions event in 51 01.1 (71). 

RESPONSE 

The commission appreciates the comment. 

Arkema is concerned that the commission has not clarified all of the issues surrounding opacity 

emissions events, especially concerning 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., handling dusty 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. Relief from the definition is 

allowed for acid gas flares servicing natural gas sweetening processes. 

RESPONSE 

-the definition of the term "opacity" is simply a statement of what opacity is considered and is 

consistent with the federal definition of opacity. Also, definitions are not the proper location for 

exemptions. Any potential exemptions should be provided in the specific chapters or permit. As 

to the 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 concerned with visible emissions. Finally, the commenter could have 

misinterpreted the visible emission requirements of Chapter 11 1. Section 11 1.1 11 establishes 

visible emission standards for all sources and is considered an all-exclusive rule, in that 

5111.111(a)(8) establishes an opacity limit for all other sources that have not already been listed 

in 91 11.1 11(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 definition does 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 is targeting. 

The distinction would help define where the commission's jurisdiction starts and where it stops. 

RESPONSE 

The commission appreciates the support, and declines to make the suggested changes to the new 

definition of regulated entity. 'the last sentence of this definition is adopted verbatim from new 

THSC, §382.0215(h), added by HB 21 29,79th Legislature. 

-the commission regulates facilities, defined as a discrete or identifiable structure, device, item, 

equipment, or enclosure that constitutes or contains a stationary source, including 

appurtenances other than emission control equipment. A mine, quarry, well test, or road is not 

considered a facility. A stationary source is a non-mobile point of origin of air contaminants, 

whether privately owned or operated. Therefore, pipelines are facilities. The safety jurisdiction 

of the RRC extends to all gas pipeline facilities and pipelines used in the intrastate transportation 

and distribution of crude oil, natural gas, hazardous liquids or carbon dioxide; non-rural 

gathering lines; and all pipeline facilities originating in Texas waters (three marine leagues and all 

bay areas), including production and flowlines originating at the well. The safety jurisdiction of 

DOT covers pipelines used in the interstate transportation and distribution of crude oil, natural 

gas, hazardous liquids or carbon dioxide. The commission has jurisdiction over emissions from 

all types of pipelines, and therefore, there is no basis for making a jurisdictional distinction in 

this definition. 

-the commission authorizes construction of facilities for air quality purposes, but has historically 

not elected to utilize its jurisdiction to permit the actual pipeline, or oil and gas wells, because 
the construction requirements established by RRC and DOT adequately address best available 

control technology. However, although both the commission and the RRC have jurisdiction to 

regulate oil and gas processing and gathering plants, and producing sites, the commission 

requires these facilities to be authorized to emit air contaminants. 

Facilities that must have authorization are usually a cluster of emission points associated with 

gathering and distribution, such as valves, flanges, non-welded joints, pig-stations, tanks, loading 

racks, distribution terminals, or compressors. Fugitive emissions from the pipelines to loading 

racks or storage tanks 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 51 16.1 19. Larger stations need to claim one or more PBRs, 

such as 30 TAC 55106.261, 106.262, or 106.355. If the plant includes a compressor station or 

storage tank, the owner or operator may claim PBRs (30 TAC 5106.352 and/or 5106.512); or 

register the plant using the 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 pipelines are subject to the reporting and 

recording requirements of 5101.201 and 5101.21 1. Although the commission is not exercising 

its jurisdiction to require pipelines to have authorizations, any emissions from pipelines of air 

contaminants to the atmosphere would be unauthorized and are also subject to the reporting 

requirements of 5101.201 and 5101.21 1. 

BSA questioned how an RQ is determined for 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 is authorized. The RQ is a threshold for identifying unauthorized 

emissions that are either subject to recordkeeping only or to reporting requirements. 

Arkema, Dow, ExxonMobil Downsteam, TCC, and TxOGA requested that the definition of 

"Reportable quantity" in 51 01.1 (88) not be on a facility 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 more than one unit is 

involved in an emissions event, this change could, in effect, increase the RQ from the current SIP 

rule. TxOGA suggested that the commission revise the definition to provide that the RQ is for each 

emissions event or scheduled maintenance, startup, or shutdown emissions activity. TxOGA 

commented that the proposal is contrary to the legislative intent, which is to 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 it applicable also to 

scheduled maintenance, startup, or shutdown emissions activities as referenced in 51 01.21 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 a 
facility-by-facility basis is required. Therefore, all facilities contributing or emitting unauthorized 

emissions subject to this rule must be identified. The commenters' requested changes were not 

made. However, the commission made some changes in reporting to allow multiple facilities to 

be included within a single notification and final report, by regulated entity, where there is a 

common cause for the emissions event. The commission also revised 8101.201 and 8 101.21 1 to 

allow emissions to be reported in total from each emission point that have unauthorized 

emissions resulting from the common cause, as opposed to separating and identifying emissions 

to each 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 in a 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 references to the definition of RQ. 

EPA commented that by increasing RQ thresholds in 51 01.1 (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 increase the 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 it will make 

excessive emissions event determinations required by 5 101.222(b). 
RESPONSE 

Sections 101.201(h) and 101.21 1(f) include the requirement for an annual emission event 

reporting of all emissions events, via annual emission inventory report for major sources and 

annual electronic reporting for non-major sources. This reporting is sufficient to address EPA's 

comments. It would be extremely difficult to establish a threshold number for each type of 

source that is regulated by the commission. Furthermore, the establishment of a single threshold 

number would not only be technically difficult, but would require a thorough public comment 

process in order that the threshold would not be perceived as arbitrary. As to how the excessive 

emissions event determinations are made, all reported emissions events are reviewed to 

determine if they are considered excessive. For non-reported emissions 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 pattern with a specific facility or regulated entity. 

TxOGA supported the amendment to 51 01.1 (88)(A) and (B)(iii) and proposed no other changes to 

the existing language. Arkema, ExxonMobil Downstream, and TCC supported the revisions to 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 determined that in ozone nonattainment areas, ozone maintenance areas, 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 is warranted in areas where releases to the atmosphere that could affect efforts to maintain 

or achieve attainment with the eight-hour NAAQS for ozone. The 100-pound RQs for nitrogen 

oxide and for nitrogen dioxide were discontinued, and an RQ is established for oxides of 

nitrogen. In these geographic areas notifications for planned maintenance, startup, and 

shutdown activities with emissions predicted to exceed the 200-pound RQ for oxides of nitrogen 

should be reported in order that the commission can evaluate the plan and determine if 

additional measures should be taken to further reduce emissions. Notification and reporting of 

emissions events in these areas should occur when emissions exceed the 200-pound RQ for 

oxides of nitrogen in order for the commission to determine if these emissions are 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 11 7 rules for East and Central Texas) and the ozone nonattainment areas 

(Chapter 11 7 rules for attainment demonstration), EPA is concerned that the increase in the 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 requested that the RQ for the 

combined oxides of nitrogen remain 100 pounds. 
RESPONSE 

The commission clarifies that there was no prior established RQ in these rules for oxides of 

nitrogen. the 100-pound RQ for nitrogen oxide and the 100-pound RQ for nitrogen dioxide 

have been deleted and instead an RQ is established at 200 pounds for oxides of nitrogen. This 

revision is adopted to reduce the requirements for speciating compounds while continuing to 

provide the commission with the information necessary to evaluate emissions subject to this rule. 

In ozone nonattainment areas, ozone maintenance areas, early action compact areas, and in 

Nueces and San Patricio Counties, the commission requires that notifications and reports be 

provided for relatively low-level emissions of oxides of nitrogen, specifically those emissions that 

exceed the 200-pound RQ, in order for the commission to make more immediate determinations 

in these sensitive air quality areas. The increase in the RQ to 5,000 pounds in certain 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 revision does establish a different 

level above which emissions must be reported to the commission for immediate evaluation. This 

reduces the administrative burden on the commission to immediately review relatively low-level 

emissions, however, emissions not exceeding this RQ must continue to be maintained in records 

and are subject to commission review for excessive determinations. 

Regarding SIP requirements, while emissions variability from major oxides of nitrogen sources 

plays a role in determining the ozone concentrations experienced across East Texas, 

unauthorized oxides of nitrogen emissions are not common. For electric generating utilities, the 

largest oxides of nitrogen sources in attainment counties, the commission uses data from the 

Acid Rain Program Database to characterize emissions, including variability and events, in SIP 
modeling. 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 emissions variability due to routine authorized and 

unauthorized emissions. Future modeling episodes may well be able to use data from the 

CCEDS, which contains data on emission 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 in the RQs, the environment will continue to 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 

to the 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 a wide range of pollutants that affect human health and 

the environment, not just criteria pollutants. For example, hydrochloric acid is neither a criteria 

pollutant, nor is known to contribute to 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 

economical justifications 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 in additional releases 

of these compounds. This revision establishes a compound-specific RQ above which emissions 

must be reported to the commission for immediate evaluation. This reduces the administrative 
burden on the regulated community for reporting relatively low levels of emissions, and on the 

commission for having to immediately review these same emissions. However, emissions not 

exceeding this RQ must continue to be maintained in records and are subject to commission 

review for excessive determinations. The CFCs, HCFCs, and HFCs compounds are neither listed 

on EPA's Comprehensive Environmental Responsibility, Compensation and Liability Act (CERCLA) 

or Emergency Planning and Community Right-to-Know Act (EPCRA) list, nor are they criteria 

pollutants or precursors of ozone. The commission 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. 

Therefore, no revision to 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 concerning CFCs, HCFCs, and HFCs, however, Dow urged adoption of a 

default RQ of 5,000 pounds, for any other CFCs, HFCs, or HCFCs that are not specifically listed in 

the proposed definition of RQ. Duke and Dupont also support the 5,000-pound RQ for CFCs, 

HFCs, or HCFCs in all areas. They agreed that these compounds are 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 reviewed on an individual basis, in order to determine whether there is a toxic 
problem, the compound is a 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 precursors of 

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 in a 24-hour period level. Therefore, the 

following compounds have been added to the definition of RQ in 5 101.1 (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 

5 101.1 (88)(A)(i)(l l I) have been reorganized into alphabetical order. 

EPA commented that 5101.1 (88)(A)(ii) maintains the 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 adequately address 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 pounds for areas other than nonattainment, 

maintenance, early action compact areas, and Nueces and San Patricio Counties. EIP commented 

that the commission has not justified 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 proposed that the default RQ for non-listed compounds within areas other 

than nonattainment areas, near-nonattainment areas, early action compact areas, and Nueces 

'and San Patricio Counties could be raised from 100 pounds to 5,000 pounds in a 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 in the proposed rule. 

The development of RQs for currently non-listed compounds might, in many cases, support levels 

higher than the current default of 100 pounds. However, it is not reasonable for the commission 

to attempt a comprehensive evaluation for each of the non-listed contaminants and to identify 

compound-specific RQs. In instances where unlisted compounds are common in use and the 

development of compound-specific RQs is justified, the commission can do so, such as the RQs 

adopted in this rulemaking for certain refrigerants. 

Dow commented that in 51 01.1 (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 a default 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 raised to 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-nonattainment areas. 
RESPONSE 

The commission had proposed that the default RQ for non-listed compounds within areas other 

than nonattainment areas, near-nonattainment areas, early action compact areas, and Nueces 

and San Patricio Counties could be raised from 100 pounds to 5,000 pounds in a 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 in the rule. 

Calpine commented that 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 not volatile 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 to the public or environment in ozone nonattainment 

areas, just as in attainment areas. 

RESPONSE 

The identification of all currently unlisted compounds that would require a specific RQ to 

address the air quality status of these areas would be technically challenging and a significant 

burden. Therefore, the commission did not change the RQ for unlisted compounds in these 

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 been 
designated as nonattainment for ozone, and therefore should not be subject to the same restrictions 

on volatile organic compounds RQs as nonattainment areas. 

RESPONSE 

The commission did not propose to raise the RQ for volatile organic compounds in these 

additional areas because they are identified as areas at risk for becoming nonattainment. No 

change has been made in response to this comment. 

TxOGA suggested that 51 01.1 (88)(B)(iv) should be revised to include the terms "the hydrocarbons 

in" before the 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 changes would 

clarify language to 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 

because there have been inspectors who said that "natural gas" included carbon dioxide and 

nitrogen for the purposes of this rule. 

RESPONSE 

The commission agrees with the commenter's overall suggestion, however, not in the exact 

wording suggested by the commenter. Section 101.1 (88)(B)(iv) is revised to 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 revisions to 5 101.1 (88)(C) in the definition of "Reportable 

quantity" regardingboilers and combustion turbines in 5 101.1 (88)(C) and requested that 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 51 01.1 (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 

needed for the combustion of hazardous air pollutants or highly reactive volatile 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 

basis for such a limit was provided, Calpine suggested that the commission consider adding a 

provision that if the fuel burned in the boiler or turbine contains 0.02% by weight or more of 

hazardous air pollutants or highly reactive volatile organic compounds, then only the RQs for those 

hazardous air pollutants or highly reactive volatile organic compounds should apply during those 

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. Emissions of those products are not tied to the 

hazardous air pollutants or highly reactive volatile organic compounds content of the fuel, but 

rather are dependent on such factors as fuel British Thermal Unit value, 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 reactive volatile organic compounds 

fuels should be subject to the RQ and reporting requirements of 5 101.201 and 51 01.21 1. 

EIP requested deletion of the exemption in 51 01.1 (88)(C), stating it violates the EPA requirement 

that all excess emissions be reported promptly and the proposed rule contains no justification. The 
current rule states that opacity is the only RQ applicable to certain boilers and combustion turbines. 

The rule, therefore, seems to allow such boilers and turbines to emit unlimited amounts of nonopacity pollutants without exceeding an RQ and triggering reporting requirements. EPA 

commented that proposed 5101.1 (88)(C) exempts certain boilers and combustion turbines from 

reporting requirements for all pollutants except unauthorized opacity releases. EPA requested that 

the commission provide the basis for exempting these sources from reporting requirements and 

explain if the proposed rule allows these sources to assert an affirmative defense to emission events 

for unreported releases. 

RESPONSE 

With regard to the request from EPA and request that the commission provide the basis for the 

0.02% limit for hazardous air pollutants, the commission originally 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 modified for boilers and combustion turbines fueled by natural gas, coal, lignite, 

wood, or fuel oil containing hazardous air pollutants at concentration of less than 0.02X by 

weight. The only RQ for these units is opacity which is 15 additional percent above applicable 

limits. This modification is added in recognition of the fact that boiler and combustion turbine 

emissions consist primarily of carbon dioxide, nitrogen oxides, water, and small amounts of 

carbon monoxide and are not acutely harmful if unconfined. The figure of 0.02% by weight is 

significant because trace contaminants, at this concentration or less, that might be present in 

used oil fired in boilers and combustion turbines will generally result in emissions below an RQ 

in the 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 response to 

this comment and to comply with EPA policy. It provides that the affirmative defense is not 
available for persons that 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 is available only for emissions that are reported or recorded. those 

entities that are not required by 5101.201 and 5101.211 to record or 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 to the RQ concerning "gaseous fuels other than natural gas, provided the 

hazardous air pollutants or highly reactive volatile organic compounds content of the fuel does 

not exceed 0.02% by weight," this language was not adopted. The language was suggested 

during one of the stakeholder meetings held before the rule revisions were proposed. It was 

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 is concerned 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, 

provided the hazardous air 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 regarding affirmative defense, §101.222(d) and (e) is the 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 monoxide and are not acutely harmful if unconfined. 

In addition to excess opacity events, when boiler and combustion turbines release these 

contaminants in quantities in excess 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 it would 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 includes a 

provision that allows the commission to set site-specific RQs at facilities monitored by continuous 

emissions monitoring systems. It is the commenter's understanding that only two companies have 

ever applied for a site-specific RQ and that both applications were withdrawn. 

RESPONSE 

The commenter is correct in that only two companies have applied for the case-specific RQ at 

facilities that are monitored by continuous emissions monitoring systems. However, the 

commenter is incorrect that the stated criteria would allow RQs to be set at too high a level. The 

modeling and other requirements required under this provision, are stringent and established to 

protect air quality and human health. In fact, the companies withdrew their request when the 

required modeling would only support an RQ that would have been lower than what was 

allowed in other subsections of the definition. No revisions have been made based on the 

comment. 

TxOGA supported the proposed amendment to §101.1(89) and did not propose any additional 

changes to existing language. 

RESPONSE 

The commission appreciates the comment. 

HCPHES commented that it does not agree with the revised definition of "Scheduled maintenance, 

startup, shutdown activity" provided in §101.1(90). HCPHES commented that 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 it appears that this definition allows for an 

automatic exemption for certain unauthorized emissions. HCPHES also 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. 

RESPONSE 

The term "by more than an RQ" was an addition by HB 2129, 79th Legislature. Therefore, the 

commenter's suggestion has not been made. Regarding the comment that scheduled 

maintenance activities are predictable events that can be scheduled at the discretion of the 

company as part of normal operations, these rules provide an incentive for authorization of 

emissions from planned maintenance. In addition, the commission is concurrently proposing 

rules for authorization of emissions that 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, regardless of 

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), can 
provide the required prior notice and be allowed to treat the activity as a scheduled maintenance, 

startup, or shutdown activity. 

RESPONSE 

The commission appreciates the support, and agrees with TxOGA's comment. If h regulated 

entity has knowledge that a maintenance, startup, and shutdown activity is going 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 allowed to provide a maintenance, 

startup, and shutdown activity notification. Therefore, the phrase "whether performing or 

otherwise affected by the activity," has been added to the rule. However, it must be noted, that 

if the actions by the other regulated entity will cause unauthorized emissions at an upstream 

regulated entity on a regular and re-occurring basis, the upstream regulated entity should seek 

authorization for those emissions. 

TxOGA also proposed substitution of "that" to replace "for which" in 5101.1 (90) because the 

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 language to 

conform to the drafting standard in the Texas Legislative Council Drafting Manual, November 

2004. The commission agrees that the term "timely" is redundant to the specific reporting 

deadlines already required in 5101.21 1, therefore, the term has been deleted in the definition. 

TxOGA supported the proposed amendment to 51 01 -1 (91) - (1 15). 
RESPONSE 

The commission appreciates the support. 

Arkema requested that the commission define "administrative technical orders" in 51 01 .l. 

RESPONSE 

Administrative technical orders are a common method by which the commission implements 

technical requirements for 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 no changes 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 unit that recovers sulfur from hydrogen sulfide by a vapor phase catalytic reaction of sulfur 

dioxide and hydrogen sulfide. This proposed definition is consistent with the EPA Petroleum 

Refinery New Source Performance Standard (40 CFR Part 60, Subpart J). 

RESPONSE 

The commission has not added the suggested definition for "sulfur recovery plants." The term is 

not used in any of the sections that are open in this rulemaking. Furthermore, defining a term in 

this chapter that is used predominantly in another chapter that is not currently open for public 

comment would be beyond the 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 purposes of Subchapter F, a 
unique alphanumeric code required to 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 meaning of this 

term. 

RESPONSE 

The commission agrees that the suggested definition will provide clarity for the reporting 

requirement of 5101.201 and 5101.21 1. Therefore, the following definition has been added to 

5101.1: "Agency established facility identification number - For the purposes of Subchapter F of 

this chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown 

Activities), a unique alphanumeric code required to be assigned by the owner or operator of a 

regulated entity that the emission inventory reporting requirements of S101.10 of this title 

(relating to Emissions Inventory Requirements) are applicable to 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 limit the applicability to Chapter 101, Subchapter F only, 

and state that "root cause" is the principal reason for the emission event and without which the 

emission event would likely not have occurred." The definition would also provide that a facility 

located at a regulated entity may be the root cause facility for an emissions event, or the root cause 

for the event may be associated with 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 is the "root cause" of the event. TxOGA commented this would 
provide a proper focus for understanding and 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 meaning to most industries and typically entails a long term 

review process, which may not be completed within the designated reporting and recording time 

requirements in § 101.201 and $1 01.21 1. The commission added 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), 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, 

which can include root cause information. Therefore, the commission did not make the 

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-related emissions (from normal 

operation) and nonroutine startup, shutdown, and maintenance-related emissions (from 

malfunctions or upsets, poor operation, or maintenance). 

RESPONSE 

These terms are frequently used in this chapter, but they are also used in other chapters. 

Because definitions used in the general rule are applicable to other chapters, the commission 

determined that it is not in the best interest of all affected parties if these terms were added 
without allowing full public comment on the exact language to be used. Section 101.1, 

Definitions, states that "{u)nless specifically defined in the 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 in the field of air pollution control." As an example, one common meaning for 

the terms "startup" and "shutdown" could be taken from EPA's 40 CFR Part 60, Subpart A 

definitions, in that "startup" is defined as: "the setting in operation of an affected facility for any 

purpose." The term "shutdown" is also defined in Part 60, Subpart A as: "the cessation of 

operation of an affected facility for any purpose." While the common definition for the term 

"maintenance" could be taken from the Webster's New College Dictionary in that 

"maintenanceN is the "to maintain," or "To preserve or keep in a given existing condition, as of 

efficiency or good repair." As to EPA's comment that the terms should be defined as discrete 

period of limited duration, EPA's own definitions in 40 CFR Part 60, Subpart A do not provide a 

discrete time period. This is because it would be an almost impossible task to take into 

consideration all of the different types of sources and develop a single discrete time 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, 

101.21 1, and 101 222 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 in the 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 in the field of air pollution control." Because the terms and phrases that Sierra 

Houston suggested to be defined are 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 in this chapter. Therefore, no changes have been made based on this comment. 

Subchapter F: Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities 

Division 1 : Emissions Events 

Section 7 0 1.20 1 - Emissions Event Reporting and Recordkeeping Requirements 

TxOGA, TCC, Duke, and ExxonMobil Production commented that notifications required in 

51 01.201 (a)(2)(B) and (b)(3)(B), and final records required in 51 01.201 (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 regulated entity 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. If the 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 is the physical address or driving directions to the regulated entity. TCC recommended 

that the identification of the site should be identified by providing the RN, the air account number, 

or the physical location and contact number, in that order. Duke commented that there should be 

flexibility to report either the RN or the air account number when either exists, or otherwise to 

report the location name and a contact phone number to satisfy the requirements. 
RESPONSE 

The commission is transitioning to the use and requirement of RNs in identifying regulated 

entities. The commission will only require the air account number to be listed when the 

regulated entity 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 5 101.1 (89)(A)(i)(l I)(-p-1 to establish an RQ for oxides of nitrogen. The 

revised definition eliminates the prior requirement to speciate these compounds for notification 

and reporting requirements. 

TOTAL commented that 5101.201 (b)(l) and (2) should be worded identically, since both 

provisions identify the components of a final record of an emissions event. Furthermore, each 

paragraph should appropriately refer to "regulated entity" rather than "facility." TOTAL suggested 

that 51 01.201 (b)(l) should be revised to read, "The final record of a reportable emissions event 

must identify for each "regulated entity:", while 5101.201 (b)(2) should be revised to read, "The 

final record of a non-reportable emissions 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 identically to S 101.201 (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); renumbers 
51 01.201 (b)(2)(J) to become 51 01.201 (b)(2)(L); and adds 81 01.201 (b)(2)(K) to be worded 

identically to §101.201(b)(l)(K). The commission replaced the term "facility" with the term 

"regulated entity" to be consistent with HB 2129. The legislation was specific and did not affect 

other sections of the chapter in this regard. 

LCRA expressed concern that initial notifications and final reports required under 5101 .I01 (a) and 

(b) give competitive advantage to 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 is over 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 revise the 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 reporting and shall incorporate reported 

emissions events into a permanent centralized database for emissions events, and that database 
must be accessible to the public. Notifications from entities such as LCRA, which as a public 

power utility that is subject to the provisions of the Texas Public Information Act (PIA), Texas 

Government Code, Chapter 552, may have emissions events reporting that may contain 

information that is exempt from disclosure through the PIA. Although the commission cannot 

make a determination of whether such information is exempt from disclosure, it will allow these 

types of entities to notify the commission via fax its Reportable EventIActivity 

NotificationIReporting Form to the commission~s regional office in which the facility is located. 

The commission may consider the date that the fax is received as the compliance date for 

meeting the reportable requirement for emissions events reporting. This practice must be 

limited only to reporting of emissions events that contain information that 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), a final report must be submitted electronically to the commission through the 

commission's STEERS reporting system, and the original notification date should be included in 

the narrative portion of the electronic report. All regulated entities not meeting the exemption 

through the PIA, as a public power utility, must continue to 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) regarding the requirement for providing notifications, records, 

and reports to local air pollution control agencies with jurisdiction. Sierra Houston commented 

that it supports the similar revisions in 5101.21 1 (a), (c), (e), and (0. 

RESPONSE 

The commission appreciates the 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 

unauthorized emissions 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 above the 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 disclosure through the provisions of the PIA, Texas Government 

Code, Chapter 552, initial notifications will be electronically provided to the public. Scheduled 

activities that are reported electronically through STEERS to the commission will 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 commission adopts reductions to the notification, reporting, and recordkeeping 

requirements in 8101.201 and 8101.21 1. These rules now require that a minimum amount of 

information be reported that allows the commission to make the initial response evaluation and 

to make final determinations. 

TCC stated that the current requirement to report emissions from eachfacility greatly complicates 

the reporting process, does not add value to the report, and greatly increases the chance for denial 

of an affirmative defense if reporting is found to be in error. TIP commented that there should be 

no need to collect facility identification number by facility identification information for every 

event, just to see if some might be "excessive." 

RESPONSE 

In response to these comments and other related comments, the commission reevaluated the 

need to have emissions reported separately from each of the facilities involved in the emissions 

event or activity. One of the criteria the commission must evaluate to determine excessive 

emissions is the impact on human health and the environment. If emissions were reported in 

total by regulated entity alone, the commission would be unable or .limited in its ability to 

complete this evaluation. Therefore, the commission revised the reporting requirement to allow 

emissions to be reported in total from multiple facilities, and that those emissions must reported 

in total and associated with the appropriate emission point(s). This revision was 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 -2 11 (b)(l)(H). 
Dow commented that the commission should clarify that only one report is required for each 

emissions event rather than 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, in a 

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 opposed to separating and identifying emissions to each facility contributing to those 

emissions. During such an emissions event, some regulated facilities may experience emissions 

events directly from a cause that is not common to other facilities. In this situation, these 

emissions must be notified and reported separately, by the common cause, and can be included 

in a single notification and final report by the regulated entity as previously described. For 

example, lightning could cause a power outage and take two facilities (Facilities 1 and 2) off-line, 

causing a release of emissions through a flare (Facility 3). During the shutdown of Facilities 1 

and 2, an operator might inadvertently and unnecessarily shut down a fourth facility (Facility 4), 

which also releases unauthorized emissions through Facility 3 (the flare). In this example, the 

cause for emissions from Facility 4 through the flare would not be common to the 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 be totaled and be attributed to the emissions point, Facility 3 (the flare). The 

reported emissions would include the total of the uncombusted emissions from Facilities 1 and 2, 

and the products of combustion at Facility 3 attributable directly from the combustion of gases 

routed from Facilities 1 and 2 to the flare. The second, separate notification for the inadvertent 
shutdown of Facility 4 must include the total of the uncombusted emissions 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 incorporate the intent of HB 

21 29, to require the reporting of emissions events by the regulated entity, rather than by facility. 

TxOGA and TIP commented that determining whether or not an RQ is exceeded should be based 

on the emissions from the regulated entity, rather than emissions from each of the individual 

facilities. Duke commented that the RQs should be compared to the total emissions from the 

common cause event, and not to emissions from each facility involved in an event. 

RESPONSE 

In response to these comments and other related comments, the commission reevaluated the 

need to have emissions reported separately from each of the facilities involved in the emissions 

event or activity. One of the criteria the commission must evaluate to determine excessive 

emissions is the impact on human health and the environment. If emissions were reported in 

total by regulated entity alone, the commission would be unable or limited in its ability to 

complete this evaluation. Therefore, the commission revised the requirements to allow 

emissions to be reported in total from multiple facilities, and that those emissions must be 

reported in total and associated with the appropriate emission point(s). This revision was 

incorporated in § 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 to the comments, the commission revised the definition of RQ by deleting the 

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 requesting additional information when needed to properly assess an event. 

TIP commented that at a minimum the commission should only initiate enforcement if the owner or 

operator of a regulated entity fails to report or knowingly or intentionally falsifies information. 

RESPONSE 

The commission, in determining if emissions events are excessive, must evaluate a number of 

factors including the frequency of a facility's emissions events and the cause of the emissions 

event. These evaluations require some detailed information on the event, including the 

individual facilities involved. In addition, THSC, §382.0215(b)(3)(F) identifies that the processes 

and equipment involved in the emissions event is information necessary to evaluate the 

emissions event, and that this information must be reported to the commission. However, the 

rule is revised to reflect that minor omissions in a report that do not impair the ability of the 

commission to review the emissions event will not be deemed a violation. 

Additionally, in some situations the regulated entity responsible for reporting an 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 

commission will utilize the following two examples as a baseline for making determinations of 

responsibility for notification and reporting of emission events. Example 1: Regulated entity 

(RE)-A experiences an upset, and the emissions point is located at RE-B's flare. In this 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, and feed to RE-2 is curtailed causing RE-2 to 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 

insignificant emissions event is an unnecessary and heavy burden for operators and the 

commission. Dow proposed the following de minimis quantities in which'no recordkeeping is 

required: 1) events and activities that result in less than one pound of emissions per 24-hour period 

for air contaminants with 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 pounds of emissions per 24-hour period for air 

contaminants with an RQ equal to or greater than 100 pounds. TCC proposed that no 

recordkeeping or reporting be required for events and activities that result in less than one pound 

of a contaminant. Arkema proposed that only the time, date, and the emissions should 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 

authorization allows facilities or sources that meet the conditions of one or more of the 

paragraphs in 81 16.1 19(a) to be considered de minimis, which means that registration or 

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 emissions from those sources meet the de minimis threshold or emission limit, 

respectively, and determine whether the emissions are authorized and reportable or recordable. 

The commission is bound by THSC, S382.0215, that requires recordkeeping of all emissions 
events. Additionally, in comments to past rulemakings concerning the commission's upset and 

maintenance rules, EPA commented that all unauthorized emissions must be recorded. 

However, the commission acknowledges that some minor constituents emitted during an 

emissions event need not be speciated and may be classified as "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 a temporary 

suspension from the mandatory use of STEERS as the reporting system will likely not be ready to 

accept single notifications and reports from regulated entities required by HB 21 29. 

RESPONSE 

The revisions to the STEERS necessary to implement the changes for reporting by regulated entity 

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 receive the 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. In the 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 to the rules can result in a 

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 necessary for 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 experiencing the 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 if an event is reportable. Moreover, information as to the cause of 

the event is likely to be incorrect upon further review. Similarly, information on the actions taken, 

or being taken, does not appear to be useful for an initial report. 

Dow supported the deletion of the requirement to provide the physical location of the point at 

which emissions to 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 

records for non-reportable releases) of these rules. 

TxOGA commented that for 5101.201 and 51 01.21 1, information requesting the physical location 

of the point at which emissions to the atmosphere occurred is unnecessary. 

TxOGA proposed that 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 

requirements for the initial report and the practical needs of the commission or the public. The 

more detailed final report will 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 is justified. 
RESPONSE 

The adopted amendments to 5101.201 and 5101.21 1 reduce the amount of information required 

for initial notifications of emissions events to the basic level needed to determine appropriate 

commission response, including deletion of the requirement to identify the physical location of 

the emission point. The notification requirements for emissions events do not require the 

speciation and reporting of compounds other than those that exceeded the RQ. Speciation of all 

emissions is required only with the final report for evaluation of these events. However, the final 

report for emissions events and the notification for scheduled maintenance, startup, and 

shutdown activities are revised to require that compounds or mixtures of air contaminants with 

an RQ equal or greater than 100 pounds and when the emission is less than ten pounds in a 24- 

hour period can include these contaminants as "other," and not speciate. The speciation of air 

contaminants and the physical location is necessary in order to evaluate impacts from emissions. 

TxOGA recommended that the language regarding the notification be revised to reflect that this is 

an "initial (24-hour) notification." 

RESPONSE 

Changes were made to 5101.201(a)(2), (2)(H), (3), and (4), (c), (e), and (g) in response to the 

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 changed from 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 a filing 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 respond and conduct an onsite investigation immediately following the initial 

notification is based on a number of factors. In addition, the commission does responses to 

incidents 24 hours a day when this immediacy is warranted. 

TCC, TxOGA, and TOTAL commented that the emissions reported for emissions events under 

51 01.201 should only identify quantities of unauthorized emissions. TCC stated that reporting the 

"total" emissions includes the authorized emission levels and only serves to obscure the 

significance and impact of the unauthorized emissions. the reporting of authorized emissions is 

already included in normal emission inventory reporting. 

RESPONSE 

The commission did not revise the rule based on these comments. One of the criteria the 

commission must evaluate to determine excessive emissions is the impact on human health and 

the environment. One of the criteria the commission must evaluate to determine if emissions are . 

subject to an affirmative defense is whether unauthorized emissions caused or contributed to an 

exceedance of the NAAQS, prevention of significant deterioration, or a condition of air 

pollution. As many compounds have thresholds and may be safe at levels below their authorized 

limits, they may be unsafe when that limit is exceeded. However, many permits do not have 

emissions limitations for the individual compound or mixture, therefore, the commission in order 

to assess an impact, needs the total emissions for those compounds or mixtures. Similarly, the 
unauthorized emissions when considered separately 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 51 01.201 (a)(2)(H). 

RESPONSE 

The commission appreciates 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 in the "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 unable to 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 (such as a power failure or a 

compressor trip), but the root cause of the triggering event will most likely not be known. This 
flexibility should be clarified in the preamble and reporting guidance and the company should not 

be penalized for not being able to report what it does not know. TOTAL commented that 

51 01.201 (a)(2)(H) and (I) should be deleted because, in the 24-hour time frame for making the 

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 to the cause an option for any regulated entity that is 

reasonably unable to determine a rational cause of the emissions event within the 24-hour 

notification period. However, in most cases it is reasonable to draw an educated conclusion as 

to the cause, and to verify the root cause in the final report. 

TOTAL commented that a description of the actions taken to correct the emissions event and to 

reduce emissions is more appropriately provided in the final record. 

RESPONSE 

A decision to respond and conduct an on-site investigation immediately following 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 commented that it supported the commission's proposal of 5101.201 (a)(3)(D) to remove the 

requirement to report the 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 revisions to 51 01.201 (a)(2)(E) and (3)(F) and 51 01.21 1 (a)(2)(G) and (b)(l)(G) to 

require that sources report both the duration of the event causing the excess emissions and the 

duration of the excess emissions themselves. Facilities often complain that the duration of the 

emissions event is not reflective of the amount of time they were actually exceeding emission 

limits. In addition, such information is sometimes necessary in determining 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 of total 

unauthorized emissions from an extended event should be based on the comparison of the 

maximum emission in a 24-hour period in the 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 

to the 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 identify the 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" in THSC, 5382.0215 
and in 5101.1(28) clearly refers to unauthorized emissions. The commission therefore 

determined that the duration of an emissions event is the duration of the unauthorized 

emissions. To ensure that the duration of the unauthorized emissions from an emissions event is 

reported or recorded, 5101.201(a)(2)(E) and (3)(F) and (b)(l)(F) and (2)(F) are amended to delete 

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. In addition to reporting or recording the 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 recording the duration or expected duration of any 

maintenance activity. No changes have been made to the rule in response to this comment 

requiring making the suggested comparison. 

TxOGA proposed that the regulated entity be required to report the air contaminants that are 

"reasonably expected at the time of the notification" to have "equaled or exceeded" the RQ; as 

opposed to the requirements to report air contaminants "that are known through common process 

knowledge, past engineering analysis, or testing to have equaled or exceeded the RQ." 

RESPONSE 

Regulated entities are expected to be knowledgeable about their processes and should know 

what air contaminants or mixtures of contaminants are expected to be released. To provide a 

description of these emissions based. on this knowledge of processes, past engineering analysis, 

or testing is considered reasonable. 

EIP commented that §101.201 (a)(2) and (3)(1) should maintain the requirement that initial reports 

include the authorized emission or opacity limit, and requested that the commission justify the 
proposed 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 necessary and 

proceeding with such action. 

RESPONSE 

Notifications serve as "notice" to the commission and determine the level of response necessary. 

A decision to respond and conduct an on-site investigation immediately following 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. The information required for initial notifications in the rule has been reduced. 

However, the requirements include the minimum information necessary to effectively make 

these decisions, and will not affect the promptness for investigations. Enforcement actions for 

unauthorized emissions begin after the receipt of the final report, following determinations made 

by the commission on the reported information and in accordance with the provisions of the 

rule. 

EPA commented that 51 01.201 (a)(2)(G) removes the requirement to report the authorized 

' applicable emission limits or opacity limitation in initial excess emission reports, and 

recommended that this revision not be adopted in the proposed rule. The proposed rule also 

allows the initial report to substitute for 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 how the commission, 

-102- 
EPA, or citizens can effectively evaluate the significance of an emissions event without knowing the 

authorized emission limitation, and how the commission will make determinations required by 

51 01.222 without determining the quantity of unauthorized emissions. 

RESPONSE 

The adopted amendment to §101.201 reduced the amount of information required for initial 

notifications of emissions events to the basic level needed to determine appropriate response, 

such as whether an immediate on-site investigation is advisable. The requirement to provide the 

authorized emission limit and the authorized opacity limit continues to be required in final 

records in §101.201(b)(l)(H) for emissions events and in §101.201(e)(8) for opacity events. The 

authorized emissions limit may be available for some initial reports, and is required for 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 1 allow initial reports to serve as final records if the information 

required in the final record does not differ from that submitted in the initial notification. For an 

initial notification to 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 to address this issue for final records of opacity events, as 

§101.201(d) already states that a final record for 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 revised to require the identification of each facility 

with emissions when 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 in the definition for RQ, the only applicable RQ is for opacity. AECT also commented 

that 51 01 201 (e) should be consolidated into 5 101.201 (a)(3) and that 51 01 201 (a)(3) should be 

revised so that it reads similarly to 5101.21 1 (a)(2). 

RESPONSE 

The definition of RQ referenced in these rules, specifically the definition in §101.1(89)(C), not 

only identifies that the RQ is opacity that equals or exceeds 15 additional percentage points 

above the authorized limit, but includes information on the averaging time, and on the 

applicable fuels for these units. Rather than repeating or paraphrasing this definition within the 

rules, the reference to the definition in 5101.1 remains without change. The reporting 

requirements in §101.201(a)(3) apply to opacity from certain boilers ;nd combustion turbines. 

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 requirements of §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 is similar to that in 5101.21 1(a)(2) was not implemented. Section 101.21 1(a)(2) 

addresses opacity from boilers and combustion turbines, and from other emitters expecting to 

experience only excess opacity. Section 101.201(a)(3) addresses only opacity exceeding the RQ 

from boilers and combustion turbines. No changes were made to §101.201(a)(3) in response to 

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 to the public. 

RESPONSE 

The information submitted in the initial notification can become the final report if the 

information in that notification continues to be accurate, remains unchanged, and meets the 

minimum reporting requirements for a final report. In most instances, the initial notification is 

preliminary information, requiring the submittal of a final report with the most accurate 

information available. Both initial notifications and final reports are available to the public. 

TxOGA proposed relocating the requirements in 5101.201 (a)(4) that regulated that entities provide 

additional detailed information upon request of the executive director, to 51 01 201 (0, the 

subsection that requires a regulated entity to provide a technical evaluation of emissions events 

upon the executive director's request. 

RESPONSE 

The commission revised the rule according to the commenter in order 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 finally 
determinable 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 recognizes that 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 recognizes that more accurate information may also be defined following 

the submission of the final report. The commission typically begins an investigation of the 

emissions event following receipt of the final report. Although there is no mechanism to 

continuously update the final report through STEERS, and the commission has not pursued any 

requirement for a second "final report," regulated entities 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 requirement to 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 in the 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 5 101 201 (0 to obtain additional information 

about the emissions event. Deletion of this provision does not prevent the inclusion in the report 

of any additional information that the owner or operator of the regulated entity believes will aid in 

the evaluation of the emissions event. 
RESPONSE 

The commission must comply with statutory requirements, including requirements in THSC, 

5392.0216, to evaluate the cause of emissions events. Because the detailed cause or causes of 

events may not be fully identified at the time of the final report, the requirement in 

§lOl.20l(b)(l)(J) and (2)(J) is to identify the "best known cause" of the event "at the time of 

reporting." The requirement to provide any additional necessary information to evaluate the 

event, information beyond the minimum reporting requirements, establishes an obligation for 

the regulated entity to consider if additional information is available and valuable to that end. 

Although additional information may be requested as suggested by the commenter, it is 

important that this obligation reside with the regulated entity. The commission cannot 

anticipate all potential information that might be available and necessary, and identify that 

information within a finite list of minimum reporting requirements. the commission is unaware 

of any previous enforcement actions such as the described scenario of an after-the-fact 

determination that additional information was withheld. 

TCC stated that the commission proposed significant improvements in the reduced information 

required for de minimis emissions, including the provisions that emissions of compounds with 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 

construed to 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 mixtures with RQs of less than 

100 pounds are not present. The commission should also consider providing a de minimis level 

such as 1.0 pound below which no recordkeeping or reporting is required. 
RESPONSE 

Both 8101.201 and 8101.21 1 allow 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 engineering analyses or testing for the presence of 

compounds with RQs of less than 100 pounds, or through testing. When emissions of 

compounds or mixtures classified as "other" through the RQ definition of "other" or those 

classified as "other" by 8101.201 or 8101.21 1 requirements together exceed 100 pounds, 

notification and reporting are required. The commission, however, is bound by THSC, 

8382.0215, that requires recordkeeping of all emissions events, and is not able to establish a de 

minimis level of emissions. 

Dow supported 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 is greater 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 unnecessary to exclude opacity from boilers and turbines in 

5101 201 (b)(l)(G), since this is already excluded in existing language in subparagraph (G). 

RESPONSE 

The commission agrees that the reference may be unnecessary, but the reference provides some 

additional clarity, and therefore no changes have been made in response to this comment. 
TCC commented that requiring the same method of estimating emissions for permitting or the 

applicable rule to be used for emission event reporting is not always appropriate or feasible. For 

example, cooling tower 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 recommended requiring the same methods as used in 

authorizations to be utilized only "where feasible and appropriate." Arkema commented that the 

method used to obtain authorizations should only be used for estimating emissions "whenever 

possible," and requested assurances that the requirement would not restrict the use of better 

methods to estimate emissions from one-time events. Duke commented that the requirements for 

the owner or operator to match the calculation methodology in the preconstruction authorizations 

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 quantities of 

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 considering that initial reports may, in some 

cases, substitute for final reports. Sierra Houston commented that 5101.201 (b)(l)(H), (2)(H), and 

(h)(2) should be revised to 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 commission acknowledges that not all emissions events result from activities that are 
comparable 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 modifications to the method can be incorporated as necessary to 

reflect the conditions of the actual emissions. Where emissions and conditions during an upset 

are not similar in nature and composition to those in the applicable authorization, and for 

emissions from facilities that are not authorized, regulated entities must identify and utilize other 

methods based on good engineering practice. In every instance, it is the regulatedaentity's 

responsibility to utilize good engineering practice and to provide the commission with an 

accurate representation of these emissions. In response to these comments, the commission 

added language to adopted 81 01.201(b)(l)(H) and (2)(H) and (h)I2) and to 81 01.21 1 (a)(l)(I) and 

(b)(l)(l) and (2)(1) to require the use of good engineering practice and methods to 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 if the 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 in the permit 

as to when and how to deviate from routine practice when a malfunction occurs. Because the 

methods required by permits, rules, or orders for estimating emissions may lead to inaccurate 

emissions estimates, sources should be required to report according to both the method specified 

in the applicable permit, rule, or order and according to 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 best 
data possible and is alerted to any inaccurate estimation methods included in permits that may 

need to be addressed. 

RESPONSE 

The commission is revising the rule to require that the regulated entity identify and utilize the 

best method for accurately determining emissions, as opposed to submitting calculations based 

on a 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 commented that while the rule is not the appropriate place to correct methods for estimating 

emissions, the rule should require the 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 to estimate emissions 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 increase 
reporting for these insignificant emissions. 

RESPONSE 

TCAA, 5382.0215, requires that a regulated entity maintain records of emissions events, and 

therefore the commission is not making the suggested change. The commission has established 

reporting requirements based on RQs in order to reduce the burden of reporting on the 

regulated entity, and to focus investigations on those emissions that may be of a more immediate 

risk. However, these records are periodically evaluated and can lead to corrective action to 

prevent larger unauthorized emissions releases. 

EIP commented that 5101.201 (b)(2) should be revised to require that records of non-reportable 

events include the basis for determining the quantity of emissions as well as the actions taken to 

minimize the emissions. 

RESPONSE 

The record of non-reportable events must contain the method of 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 stemming from actions taken by the regulated 

entity. therefore, there is no requirement to identify actions taken to minimize the emissions. If 

this information is important, due to site-specific circumstances in a particular investigation, this 

information can be requested. 

EIP stated that all unauthorized emissions should be reported promptly. EPA guidance requires that 

all excess emissions be reported promptly, citing EPA 1999 Guidance (Attachment pages 4 and 7). 

However, the commission's rules, including 51 01.210(d), include reporting exceptions for certain 
boilers 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 language found in §101.1(88)(C) in 1997 (July 29, 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 modified for boilers 

and combustion turbines fueled by natural gas, coal, lignite, wood, or fuel oil containing 

hazardous air pollutants at concentration of less than 0.02% by weight. The only RQ for these 

units is opacity, which is 15 additional percent above applicable limits. This modification is 

added in recognition of the fact that boiler and combustion turbine emissions consist primarily 

of carbon dioxide, nitrogen oxides, water, and small amounts of carbon monoxide and are not 

acutely harmful if unconfined. The figure of 0.02% by weight is significant because trace 

contaminants, at this concentration or less, that might be present in used oil fired in boilers and 

combustion turbines will generally result in emissions below an RQ in the event of an upset. 

Therefore, the RQ for boilers and combustion turbines as previously listed has not been deleted 

as suggested. 

A regulated entity is not required to supply information in support of an affirmative defense for 

unreported emissions from boilers and combustion turbines. The emissions from boiler and 

combustion turbines consist primarily of carbon dioxide, nitrogen oxides, water, and small 

amounts of carbon monoxide and are not acutely harmful if unconfined. The commission does 

require the reporting of opacity that exceeds 15% of the authorized opacity because these 

reports may indicate increased levels of trace contaminants from 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 

5101 201 (d) be revised to state that the notice submitted under subsection (a) must contain the 

information required under subsection (b) if an initial notice is required. The change would clarify 

that records and reports generated by a qualifying continuous emission monitoring system are 

sufficient to meet 51 01.201 requirements, even if the unit is exempt from submitting an initial 

notice by the definition of RQ in 51 01 .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 applicable facilities from submitting a 

final record, if the excess emission reporting provides all 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 commission appreciates the comment. 

TxOGA commented that a regulated entity may experience an excess opacity event without there 

being a facility associated with the event, and that §101.201 (e)(4) should be revised to 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 control 
device rather than a facility. The report will list the exhaust stack as an emission point. 

RESPONSE 

In the 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 response to 

this comment. 

TxOGA commented that 51 01.201 (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 recommended that an alternative to electronic 

reporting be provided for those situations in which the owner's or operator's server, as well as the 

commission's electronic reporting system, is unavailable due to technical failures or scheduled 

maintenance. 

RESPONSE 

Notifications required by §101.201(a), (c), and (e) must be submitted electronically using the 

commission's STEERS, with certain exceptions. Because of the number of reports received by the 

commission, and the need to evaluate this information in a timely manner, electronic reporting is 

necessary. If the commission's server is unavailable, reporting may be provided by facsimile to 

the commission's regional office. If the 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 be submitted via STEERS as 

soon as technically possible. Small businesses meeting the definition in Texas 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 reporting of emissions events, 

found in THSC, 5382.0215 is for the commission to develop the capacity for electronic reporting 

and incorporate reported emissions events into a permanent centralized database for emissions 

events that is accessible to the public and can be used to identify persons that repeatedly fail to 

report reportable emissions events. The statutes do not require the initial 24-hour notifications of 

emissions events required in 51 01.201 (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 by telephone, facsimile, or 

email. Alternative reporting mechanisms will make it easier for operators to 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 is the final report required in 

51 01.201 (c) and (e). The final report is the 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 in the final report in the initial report. 

RESPONSE 

Because of the number of reports received by the commission, and the need to evaluate this 

information in a timely manner, electronic reporting is necessary. The commission, in practice, 

has found that electronic reports are a more efficient method of notification to the regional 

offices, provide a consistent means of receiving this information, and provide a consistent record 

of these notifications and reports. The commission, for these reasons, does not propose to revise 
the electronic reporting requirements. 

EIP commented that 51 01.201 (g) should be amended to delete the provision allowing sources 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 being entered 

into the electronic system, which is used to track such emissions, or that commission staff are 

spending time 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 reporting for emissions events, although 

it is our understanding that many sources do report scheduled maintenance, startup, and shutdown 

activities electronically. The commission should require sources to report all emissions events and 

scheduled maintenance, startup, and shutdown activities electronically to make sure that all such 

emissions are included in the 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 provision to reduce duplicative reporting requirements 

for the regulated community, and at this time the commission has not decided to require the 

additional electronic reporting requirement. Electronic reporting for scheduled maintenance, 

startup, and shutdown activities is currently not a rule requirement, but it is the normal means of 

receiving these notifications and has been encouraged by the commission. 

Duke requested the following language, "initial notification may be made by phone, fax, email, or 

STEERS with STEERS being the preferred method of filing the report," be added to 51 01.201 (g) in 

order to give more flexibility for entities that are in remote locations with 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 requirements of 

§101.201 comply with THSC, 5382.0215, 

AECT commented that 51 01.201 (h)(2) and 51 01.21 1 (f)(2) should be revised to more clearly 

describe the exemption. In tlie first sentences of S101.201 (h)(2) and 51 01.21 1 (f)(2), the following 

words should be deleted: "except for boilers or combustion turbines referenced in the definition of 

RQ in 51 01.1 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 51 01.201 (h)(2) and 51 01.21 1 (f)(2). For S101.201 (h)(2), the new sentence 

should read: "this paragraph does not apply to boilers and combustion turbines referenced in the 

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 in the 

definition of RQ in 51 01.1 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 51 01.201 (h)(2) and 

51 01.21 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 -21 1(f)(2) are revised to not adopt the exemption for boilers or 

combustion turbines. Boilers and combustion turbines at major sources are required to report 
emissions annually to the commission's emissions inventory. This also requires these sources at 

minor facilities located in certain areas to report these emissions annually to emissions 

inventory. 

Dow, Duke, and BPC objected to the proposed requirement in 51 01.201 (h) to submit an annual 

report for emissions events as an onerous and new reporting requirement. Dow, Duke, BPC, TCC, 

and Calpine commented that the commission already has access to much of this information. 

Calpine commented that the proposed requirements of 51 01.201 (h) and 5 1 01.2 1 1 (f) are 

duplicative and unnecessary. Emissions inventory reporting by facilities already includes emissions 

events and scheduled maintenance, startup, and shutdown activity emissions in STEERS reports, on 

Title V deviation reports, and in the annual emissions inventory report. Requiring companies to 

submit additional information totaling up information that the commission already has in duplicate 

is adding additional paperwork requirements to an already burdensome regulatory program. 

Calpine commented that if the commission needs information about the total amount of 

maintenance emissions or the total amount of emission events that have occurred at a regulated 

entity, then surely it can code STEERS to run reports totaling that information on an annual basis. 

TPA urged the commission to delete 5101.201 (h) because it does not provide any more useful 

information to the commission than what is already available. This expands the reporting to 

include non-reportable events, which are insignificant. TxOGA commented that the provision 

should be deleted as it is contrary to legislative intent in THSC, 5382.0215 and 5382.0216. 

RESPONSE 

Unauthorized emissions that are non-reportable are not captured in STEERS reports to the 

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 the 
commission to evaluate the summation of all unauthorized emissions. Therefore, the 

requirement was established as the least burdensome and the most efficient method for 

addressing this need. Section 101.201(h)(4) provides that those already reporting this 

information according to 5101.10 do not need to 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 reporting to be based on a regulated entity rather than a facility basis, 51 01.201 (h) 

would require all annual accounting of the number and magnitude of emissions events on a 

facility-by-facility basis. TCC commented that the reporting of this information by facility is 

unnecessary and does not provide any useful information. TCC commented that reporting this 

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 revised to provide that the number of reports is 

the total reportable and total non-reportable events experienced at the regulated entity. 

TxOGA commented that the requirement in 51 01.201 (h) would cause a sizeable universe of 

regulated entities, many of them owned or operated by small businesses, that are specifically 

exempted by THSC, 5382.021 5 from having to 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 

Unauthorized emissions that are non-reportable according to these rules are not captured in 

STEERS reports to the commission, and only major facilities are required to submit emissions 

information within the annual emissions inventory reports. As a result, there is no single ready 

source for the commission to evaluate the summation of all unauthorized emissions. Therefore, 

the requirement was established as the least burdensome and the most efficient method for 

addressing this need. No change was made in response to this comment. 

EPA supported the state's requirement in 51 01.201 (h) to require annual reporting of both 

reportable and non-reportable emission events for certain sources. EPA commented that this 

information will assist the state in evaluating effective enforcement efforts and will facilitate the 

state's SIP planning process. 

RESPONSE 

The commission appreciates the comment. 

EIP commented that the annual report in 51 01 -201 (h)(2) is a significant step forward and should 

enable the commission and the public to better scrutinize the operation of each facility. This 

provision requires sources to report estimated total annual emissions event emissions based upon 

methods consistent with the methods used in the permit, rule, or order of the commission. This 

provision should be amended to require, if this estimate differs from the estimate using the best 

available estimation methods, that estimates using both methods be reported. 

RESPONSE 

In response to comments, 5101.201(h)(2) is revised to provide that good engineering practice 
and methods must be used to provide reasonably accurate representations for emissions and 

opacity. 

TPA stated that the first sentence of 51 01.201 (h)(3) is unclear as to whether it is referencing the 

commission's STEERS system. 

RESPONSE 

The commission is currently considering the best method for developing a reporting system that 

will incorporate existing annual emissions inventory reports, not cause duplicative reporting, and 

incorporate new reports from regulated entities currently not required to submit annual reports. 

The reporting process and guidance will necessarily have to be provided as the development of 

the system continues. 

EIP commented that the permitting of planned or predictable emissions should ensure that the 

consequences of predictable excess emissions on air quality and public health are fully evaluated 

before the emissions occur. 

RESPONSE 

No revisions to the rule were made in response to this comment, as it relates directly to the 

commission's permitting procedures and is beyond the scope of this rulemaking. 

Dow commented that clarification is needed regarding the definition of excess opacity event and 

reporting obligations for instances where a gas flare experiences smoke emissions for more than 

five minutes in a two-hour period. Specifically, Dow questioned whether these instances are to be 

considered an excess opacity event; if these instances are associated with an RQ exceedance of 
another 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 11 1, Control of Air 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 

is defined 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. Under the reporting rules in 5101.201 and 5101.211, excess opacity event notifications 

or reporting are applicable only to opacity standards, not to visible emissions. 

Flares typically, though not always, are subject to visible emissions standards. Exceedances of 

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 

notification and reporting. Reporting and notification for flares will be required when the 

specific unauthorized compounds or mixtures emitted exceed an RQ. 

Division 2: Maintenance, Startup, and Shutdown Activities 

Section 707.2 7 7 - Scheduled Maintenance, Startup, and Shutdown Reporting and 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 adding a 

subsection that would allow that notifications required by subsection (a) of this section, which are 
marked 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 suggested two alternatives. First, LCRA suggested that the rule be 

amended and a corresponding change be added to 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 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. 

AECT requested that the commission include a statement in the preamble to the final rule . 

confirming that 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.is occurs because the shutdown 

and startup notification information that is disseminated to the public serves to apprise the 

companies from whom such owners and operators must purchase replacement electricity. 

RESPONSE 

Notifications from entities such 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 encourage 
regulated entities to utilize the electronic reporting system, make the information available to 

the public in a consistent manner, and address the concern regarding competitive business 

disadvantage, the commission will develop a process that may allow for timely submission of 

confidential information related to a scheduled maintenance, startup, and shutdown activity that 

would be posted at a later time for public access. 

TxOGA, TCC, Duke, and ExxonMobil Production commented that notifications required under 

5101.21 1 (a)(l)(B) and (2)(B), and the final records required under 51 01.21 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 to the use and requirement of RNs in identifying regulated 

entities. The commission will only require the air account number to be listed when the 

regulated entity does not have an RN. 

TCC, TxOGA, and TOTAL commented that the emissions reported for emissions events under 

5101.21 1 should only identify quantities of unquthorized emissions. TCC stated that reporting the 

"total" emissions includes the authorized emission levels and only serves to obscure the 

significance and impact of the unauthorized emissions. 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 important that the Chapter 

101, Subchapter F rules clearly only require reporting of unauthorized emissions. The reporting of 

authorized emissions will be covered in normal emission inventory reporting. 

RESPONSE 
The commission made no changes to the rule based on these comments. One of the criteria the 

commission must evaluate to determine excessive emissions is the 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 considered separately, the 

unauthorized emissions may not reach the exceedance of an NAAQS, but the increase over the 

authorized limitation can cause the total emission to 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 51 01.21 1 is triggered 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 exceedance of 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 operators to report more realistic estimates of 

maintenance, startup, and shutdown emissions in the prior notifications. 

RESPONSE 

Maintenance, startup, and shutdown activities are planned activities that allow regulated entities 

ample time to evaluate the potential emissions resulting from these activities. The commission 

requires prior notice and estimates of emissions in order 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 emissions when the predicted quantity of 
emissions 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 according to 5101.211, 

the commission already provides an opportunity for an affirmative defense. 

HCPHES supported the proposed changes to 51 01.21 1 (a), (c), (e), and (fl regarding the additional 

language of appropriate local air pollution control agency with jurisdiction. 

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 required within 24 hours of discovery. 

Final reports are required within two weeks following the end of an emissions event. These 

. reporting requirements for potentially significant emissions are both prompt and protective. 

Notification of less significant emissions, those that do not exceed an RQ, would not greatly add 

to the effectiveness of the TCEQ's attention to the emissions that are of most concern on both a 

short-term and long-term basis. Both initial notifications and final reports are available to the 

public. No change to the rule was made in response to this comment. 

EIP stated that unauthorized emissions that do not exceed an RQ may be recorded rather than 

reported and that because the proposed rules raise the RQ for a number of air contaminants, it 
would 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 rise to the level of concern, i.e., 

those that must be promptly reported in an initial 24-hour notification. this provides the 

information for determining whether to respond and conduct an on-site investigation 

immediately following 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 in these areas do not need to be promptly reported, and must instead follow the 

recordkeeping requirements of the rules. The commission is not raising the RQ for non-listed 

compounds from 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-emissions are expected to equal or exceed the RQ. Adding an 

additional amount equivalent to the RQ to the unauthorized emissions represented in the 

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 in the 

emissions notification should represent an emissions event. 

RESPONSE 

The commission revised the rule in this respect to directly incorporate provisions of HB 2129. 
Dow and Duke supported the proposed changes and agree that additional notifications should only 

be required if the actual amount emitted exceeds the emissions estimates submitted in the initial 

notification by more than an RQ. 

RESPONSE 

The commission appreciates the supportive comments. 

TCC commented that the last sentence of 51 01.21 1 (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 report these as emissions events if they have exceeded 

the estimate by the magnitude of an RQ. 

RESPONSE 

In response to this comment, and in order to clarify, the last sentence in adopted 5101.211(a) is 

revised to provide that owners and operators of a regulated entity with emissions events shall 

report such events as emissions events in accordance with the requirements of 5101.201 and 

5 101.222. 

TCC and ExxonMobil Downstream commented that notifications for maintenance, startup, and 

shutdown activities are made prior to the activity and only if unauthorized emissions are expected 

to equal or exceed an RQ. TCC suggested that the commission clarify that these activities are 

expected to have emissions less than an RQ, and therefore are not required to make prior 

notifications. 
RESPONSE 

Emissions event reporting and recordkeeping requirements are addressed in 8101.201 while 

scheduled maintenance, startup, and shutdown reporting and 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 1 are not excluded from becoming 

emissions events when the actual amount of emissions exceeds the reported amount by more 

than an RQ. Therefore, the commission declines to make the suggested change. 

TCC requested that the phrase "by facility" be deleted in the first sentence of §101.211 (a)(l)(H), 

because emission estimates and comparison to RQs should be by the emission activity, not by 

facility. 

RESPONSE 

The commission revised the language in the first sentence in adopted 8101.211(a)(l)(H), to read: 

"for all emission points involved in the emissions activity." This is consistent with other rule 

language that requires reporting by emission points. 

TCC requested that §101.211 (a)(l)(H) be revised to 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 regarding what 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 reporting emissions that are clearly expected to 

be below an RQ. If the commission's intent is that once scheduled maintenance, startup, and 
shutdown activity is expected to have any unauthorized emissions above an RQ, then all of the 

' unauthorized emissions 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 unauthorized emissions. The 

estimate in the notification is the estimate of all unauthorized emissions. Even if the estimate of 

these emissions is not exceeded during the activity, the emissions remain unauthorized. 

Therefore, the reference to "unauthorized" in 5101.21 l(a)(l)(H) might not provide additional 

clarity, but rather confuse the issue. Compounds and mixtures of contaminants that are not 

expected to be present in quantities greater than or equal to 100 pounds, and at a rate of less 

than ten pounds in a 24-hour period, can be reported as "other." Alternatively, as is currently 

required, the notification can include a predicted speciation for these emissions. 

TCC commented that requiring the same method of estimating emission be used for emission event 

reporting as was used in the permitting or applicable rule is not always appropriate or feasible. 

Many of the maintenance, startup, and shutdown related emissions are special activities that do not 

occur routinely. TCC recommended adding "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 

comparable 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 modifications to the method can be incorporated as necessary to 

reflect the conditions of the actual emissions. Where emissions and conditions during an upset 

are not similar in nature and composition to those in the applicable authorization, and for 

emissions from facilities that are not authorized, regulated entities must identify and utilize other 

methods based on good engineering practice. In every instance, it is the owner or operator's 

responsibility to utilize good engineering practice and to provide the commission with an 

accurate representation of these emissions. Therefore, the commission revises 8 101.201 (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 used to provide reasonably accurate representations for 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 made this change to the final rule, however, in clarification the report 

should include both those actions currently being taken and those actions expected to be taken 

to minimize the emissions. 

Sierra Houston commented that 5101.21 1 (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 in the applicable permit application, rule, or order of the 

commission, instead of the proposed "should be consistent" language. 

RESPONSE 

The commission acknowledges that not all emissions events result from activities that are 
comparable 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 modifications to the method can be incorporated as necessary to 

reflect the conditions of the actual emissions. W.here emissions and conditions during an upset 

are not similar in nature and composition to those in the 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. In every instance, it is 

the owner and operator's responsibility to utilize good engineering practice and to provide the 

commission with an accurate representation of these emissions. Therefore, the commission 

revises 51 01.201 (b)(l)(H) and (2)(H) and (h)(2), and S 101.21 1(a)(l)(l) and (b)(l)(l) and (2)(1) to state 

that good engineering practice and methods must be used to provide reasonably accurate 

representations for emissions and opacity. 

TCC recommended changing "experienced" in the first sentence of 5101.21 1 (a)(2)(E) to "is 

expected to experience" and "occurred" to "is expected to occur." 

RESPONSE 

The commission has not made this change to the final rule. No problems with enforcement 

regarding notification have been encountered. 

TCC recommended revising 51 01.21 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 minimize the emissions from the scheduled maintenance, 

startup, or shutdown activity." 
RESPONSE 

The commission must evaluate the notification for these events in order to assess whether the 

proposed activities and resultant predicted emissions are reasonable. In order to do so, it is 

necessary to evaluate what steps are planned to minimize emissions. Since these activities are 

scheduled activities, it is not unreasonable to require identification of the actions that are 

planned to occur. No change was made to the rule in response to this 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 to these reporting requirements are unauthorized, and therefore this 

specific suggested change would not add additional clarity to the requirements. However, in 

response to these comments, the commission changed the phrase "the scheduled point" to "the 

points." 
TCC recommended adding "unauthorized" after "determining the quantity of" and delete "to be" 

after "air contaminants" because this record is for estimated unauthorized emissions in 

51 01 -21 -1 (b)(l )(I). 

RESPONSE 

All emissions subject to these reporting requirements are unauthorized, and so this would not 

add additional clarity to the requirements. The deletion of the words "to be" is unnecessary. 

Even though these are records of estimates, they are also predictions of estimates. No change 

was made to the rule in response to this comment. 

TCC recommended adding "unauthorized" after "taken to minimize the" because this record is for 

estimated unauthorized emissions in 51 01.21 1 (b)(l )(K). 

RESPONSE 

All emissions subject to these reporting requirements are unauthorized, and so this would not 

add additional clarity to the requirements. No change was made to the rule in response to this 

comment. 

TxOGA proposed the following additional language in 5101.21 1 (b)(2) as clarification: ". . .because 

the unauthorized emissions from the activity were not expected to exceed an RQ." 

RESPONSE 

The suggested revisions were not incorporated as the reporting requirements under S101.21 1(a) 

refer both to those activities that are expected to exceed an RQ and also to excess opacity 

events. Instead of repeating the provisions of §101.211(a), the reference remains. 
TCC recommended deleting the word "scheduled," adding "unauthorized" after "at which," and 

deleting "will," and changing "occur" to "occurred" in 51 01.21 1 (b)(2)(C). 

RESPONSE 

All emissions subject to these reporting requirements are unauthorized, and therefore this 

specific suggested change would not add additional clarity to the requirements. However, in 

response to the comments, the commission changed 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 regulated entity is available from the information in 

51 01.2 1 1 (b)(l )(B). 

RESPONSE 

In those instances where an activity is scheduled and 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 identification for the location of the regulated entity, or 

"plant site," in these instances. Section 101.21 1(b)(2)(C) requires the location of the emissions 

point, within the plant site. Therefore, the second sentence in §101.2ll(b)(l)(B) is revised to 

require identification of the location of the regulated entity, rather than identifying the location 

of the release. 

TxOGA recommended that §101.211 (b)(2)(H) be revised by deleting the requirement to 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 recommended adding language to limit the 

exception for boilers and combustion turbines to opacity from boilers and combustion turbines. 

This is the first instance in which the release is not required by the commission to 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 to the scheduled activity or to the 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, no change was made to the rule 

in response to this comment. 

TCC appreciates the commission's reduction of emission details for insignificant quantities. With 

regard to 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, but that process 

knowledge can be used to exclude the compounds or mixtures with less than 100-pound RQs. 

RESPONSE 

The rule allows for grouping compound or mixtures, with an RQ of 100 pounds or less of air 

contaminants emissions known through engineering analysis or testing, when the amount 

emitted of those compounds or 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 reporting are required. The 

commission is bound by THSC, 5382.0215, which requires recordkeeping of 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 allowing for small amounts of emissions to be reported 

as "other." Arkema requested an extension of this concept to not require reporting of emissions of 

less than 1 Ol0 of any RQ for any reportable release. 

RESPONSE 

The commission must comply with THSC, 5382.0215, requiring the notification and 

recordkeeping for unauthorized emissions. The current reporting and 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 of the regulated entity shall submit a final record as required by subsection (b) of 

this section to the commission office for the region in which the regulated entity is located" as it 

implies that subsection (b) specifies the manner in which the final record is to be submitted to the 

regional office. 

RESPONSE 

The commission revised the language as 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 during scheduled 

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 in Chapter 101, Subchapter F do not authorize emissions or facilities. Rather, the rules 

in Subchapter F, Division 3 provide for an affirmative defense for unauthorized emissions 

resulting from unplanned maintenance, startup, and shutdown activities. The commission is able 

to review the reported activities prior to their occurrence and to coordinate with the owner or 

operator to make certain that efforts are being utilized to limit those unauthorized emissions. 

No change was made to the rule in response to this comment. 

TCC commented that Subchapter F only 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 required to 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 in Chapter 101, Subchapter F do not authorize emissions or facilities. Rather, the rules 

in Subchapter F, Division 3 provide for an affirmative defense for unauthorized emissions 

resulting from upset events and certain maintenance, startup, and shutdown activities. The 

commission is able to review the reported activities prior to their 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. Failure to comply with the representations in 

applications submitted according to the schedule in §101.222(h)(l) or other standard operating 

procedures in place at the plant may be considered as evidence of whether the owner or 
operator operated the facilities in a manner consistent with good practices for 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 (fl be deleted, for many of the reasons that were provided in 

comments relating to annual reporting requirements in 51 01.201 (h). 

RESPONSE 

Unauthorized emissions that are non-reportable under §101.201 and §101.211 are not captured 

in STEERS 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 commission to evaluate the summation of all 

unauthorized emissions. Therefore, the requirement was established as the least burdensome 

and the most efficient method for addressing this need. No change was made to the rule in 

response to these comments. 

Division 3: Operational Requirements, Demonstrations, and Actions to Reduce Excessive 

Emissions 

Section 101.22 1 - Operational Requirements 

TCC and ExxonMobil Downstream recommended leaving the "shall" and deleting "must" in 

5101.221 (a). 

RESPONSE 

The commission declines to make the suggested change. The wording change to "must" instead 
of "shall" is needed to conform to the drafting standard in the Texas Legislative Council Drafting 

Manual, November 2004. 

Arkema requested that the commission take 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 exemptions from 

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 proposing to address this concern. The commission 

acknowledges that emission limitations may not be consistent between its authorizations, rules, 

and orders and those in federal law. For example, in 40 CFR §60.49(b), the EPA explicitly 

requires that nitrogen oxide emissions limits under 40 CFR §60.44(b) apply at all times, but the 

limits for particulate matter and opacity apply at all times except during startup, shutdown, or 

malfunction. For the particulate matter and opacity limits in these federal rules, the EPA 

suspends the emissions limits and standards during these events and instead requires the owner 

or operator to comply with the work practice standard identified in 40 CFR 560.1 1(d) in order to 

mitigate emissions during such activities. Compliance with 40 CFR 560.1 1(d) is determined after 

the event has passed, and is determined on a case-by-case basis using the facts surrounding the 

event, a practice that is identical with the commission's approach. 40 CFR 560.1 1(d) 

workpractice standards, which generally apply during these types of events, effectively include 

the demonstration criteria that are contained in 5101.222. The EPA has addressed emissions 

during startup, shutdown, and malfunction similarly in the national emission standards for 

hazardous air pollutants found in 40 CFR Part 63. In national emission standards for hazardous 
air pollutants, each subpart identifies whether or not emissions limits apply during startup, 

shutdown, and malfunction events and requires compliance with a work practice standard 

during those same events when the subpart limits do not apply. The EPA has adopted a more 

formalized approach to addressing startup, shutdown, and malfunction related emissions in the 

national emission standards for hazardous air pollutants, under 40 CFR §63.6(e), by specifically 

requiring that the owner or operator develop and operate in accordance with a startup, 

shutdown, and malfunction plan as defined in 40 CFR §63.6(e)(3). In either NSPS or national 

emission standards for hazardous air 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 to the 

rule in response to this comment. 

Arkema stated that clarification is needed to specify that the existing requirements in 30 TAC 

Chapters 1 1 1, 1 12, 11 5, and 11 7 are 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 petition the 

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 emissions events now being documented in the new 

source review permit process, and a feasibility analysis documenting that the requested emission 
limits during startup, shutdown, and malfunction events are appropriate. Further, the commission 

would include language in the new source review permit documenting how a facility 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 commission declines to make the 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 meeting the requirements of a PBR, a standard permit, or a new source review 

permit. Concurrent with this rulemaking, the commission is proposing rules regarding a variety 

of options to address concerns about obtaining authorization for historically excess emissions. 

TCC and ExxonMobil Downstream commented that in 51 01.221 (e) the term "facility" has not been 

deleted, and the preamble should clarify that proof of meeting the demonstration criteria is to 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 it thinks 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 reporting focus on root cause. This change would also 

avoid any possible misinterpretation that detailed information regarding multiple facilities is needed 

to evaluate the event and would indicate that there are no statutory requirements to evaluate 

individual facility performance for a maintenance, startup, or shutdown activity. 

RESPONSE 

The owner or operator of a regulated entity is necessarily the owner or operator of a facility. 

This change would 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 reporting system will also 

reduce reporting. However, detailed information is still required for the commission to comply 

with the statutory requirements for evaluating these events and activities. No change was made 

to the rule in response to this comment. 

TCC and ExxonMobil Downstream strongly supported deletion of the expiration clause in 

5101.221 Ig). 

RESPONSE 

The commission appreciates this comment in support of §101.221(g). 

Division 3: Operational Requirements, Demonstrations, and Actions to Reduce Excessive 

Emissions 

Section 10 7.222 - Demonstrations 
EIP commented that the affirmative defense for emissions events in 5 101.222 remains overly broad 

and should only apply to commission enforcement action. The FCAA gives citizens the right to 

bring an enforcement action and to seek civil penalties and 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 bring such enforcement action, except as expressly provided by the FCAA. 

Therefore, the commission rules should clarify that any affirmative defense is an exercise of the 

commission's enforcement discretion and cannot impact the 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 broader authority to create a defense 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, not the affirmative defense provisions of the rules. 

RESPONSE 

The commission declines to make the suggested changes in response to this comment. It is not 

necessary to include language in this rulemaking stating authority of citizens to bring 

enforcement actions under the FCAA. The commission has stated in previous rulemakings that 

its rules are not intended to nor do they impact citizens' legal rights under the FCAA. The 

commission agrees that it is granted statutory authority to establish an affirmative defense and 

these rules comply with that authority. 

EPA commented that 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 affirmative defense to an enforcement action 
does not relieve the source from liability for a violation of the SIP, but instead allows the source to 

avoid civil penalties when certain criteria are met in a judicial or administrative enforcement 

action. 

RESPONSE 

The commission agrees with the commenter. 

Houston Sierra commented that it is opposed to allowing an affirmative defense to all claims in 

enforcement actions brought for these activities, other than claims for administrative technical 

orders and actions for injunctive relief because this rule allows non-reportable emissions events to 

never result in enforcement actions. 

RESPONSE 

The commission made no change in response to this 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 Hochberg commented that a distinction should be drawn between true upset events 

and events that can be anticipated. 

RESPONSE 

Changes to 6101.222 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 provides an 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 become authorized. the transition schedule will allow time for a meaningful review 

of permit applications. This will allow the commission to focus its enforcement resources on the 

unpredictable emissions. 

EIP commented that the commission should ensure that the criteria for demonstrating an affirmative 

defense in 5101.222 are clear and consistent with EPA narrowly tailored guidance. This clarity 

assures both that companies are accountable for managing their operations properly at all times, 

and that the commission does not have to devote scarce legal and enforcement resources to 

arguing over the interpretation of the affirmative defense criteria on a case-by-case, after-the-fact 

basis during individual investigations. Instead, to the 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 in excess of 1,200 

pounds per hour (Ibshr) toward the annual cap of a facility's emissions of highly reactive volatile 

organic compounds, based on the assumption that these emissions are unauthorized and, thus, 

subject to enforcement action as non-excessive emissions events under 5 101.222(b). However, if a 

company can claim that its emissions above 1,200 Ibshr are part of a non-excessive emissions 

event, it may assert an affirmative defense and, thus, be exempt from serious enforcement action. 

RESPONSE 

The commission made no specific changes in response to this comment. Changes to the 

demonstration criteria in §101.222(b) - (e) are discussed elsewhere in this preamble. The criteria 

for demonstrating that an owner or operator has met an affirmative defense are clear and meet 

EPA's guidance. Unauthorized emissions of highly reactive volatile organic compounds reported 
in accordance with this rule are not afforded any additional or separate consideration than other 

types of unauthorized emissions. All unauthorized emissions are subject to reporting and 

recordkeeping requirements and operators have the same opportunity to claim an affirmative 

defense regardless of 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 requirement that sources 

demonstrate that 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 recommended that the commission clarify that no emissions 

events that cause releases of volatile organic compounds in the 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 HGB where excess emissions from a limited number of sources will cause 

exceedances in the federal air quality standards. 

RESPONSE 

In 2002, the commission adopted lower RQs, and more recently adopted various rules to better 

control volatile organic compound emissions in the HGB area. The rules regarding control of 

volatile organic compound emissions are necessary to further prevent the formation of ozone, 

particularly in the 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 with the commission's rules regarding control of volatile 
organic compound emissions, therefore, removal of the affirmative defense is not warranted. No 

change has been made to the rule($ in response to this comment. 

EIP commented that the commission declined to apply the same tighter controls on other volatile 

organic compounds as it does on highly reactive volatile organic compounds in spite of strong 

evidence demonstrating that several other volatile organic compounds cumulatively account for as 

much as half of ozone formation in the Houston region. The commission reasons that existing 

permits adequately control emissions of other volatile organic compounds. However, to the extent 

the regulations governing emissions events allow plants to routinely exceed their permitted 

emissions limits during emissions events without facing penalties, existing permits do not 

adequately control emissions of other volatile organic compounds. 

RESPONSE 

The commission does not agree that the emissions events rules allow for routine exceedances of 

permitted emissions limits during emissions events without facing penalties. the evaluation of 

whether the commission should require additional controls of other volatile organic compound 

emissions is beyond the scope of this rulemaking, therefore, the commission declines to make the 

suggested change. 

TPA suggested that a new subsection be added to 5 101.222 that would provide that 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 no assessment of the pipeline, 

pressure relief valve, or other root cause be performed by the commission. 
RESPONSE 

The commission made no change in response to this comment. The commission acknowledges 

that the RRC has jurisdiction regarding pipelines, however, the commission has jurisdiction of air 

contaminants, and is charged with safeguarding the states's air resources from 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 commission found no basis to exclude emissions from 

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 required for emissions events would not conflict with pipeline operation 

and safety as required by the RRC or federal DOT. 

Representative Hochberg commented 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 authority to 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 propose changes 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 commented that if the commission is having difficulty reconciling the use of the term "regulated 

entity" throughout THSC, 5382.021 5 with the fact that the legislature filed to correct the reference 

in THSC, 5382.021 6, which directs the commission to establish criteria for determining when 

emission events are excessive, then it suggested that the commission remove all references to 

excessive emission determinations from the current rules and go back and begin developing 

regulations that contain criteria more in keeping with the requirements of THSC, 5382.021 6. Thus 

far, the commission has failed to develop rules that contain criteria more in keeping with THSC, 

5382.021 6. TIP commented that the commission should simply exercise good sense to interpret 

the provisions of THSC, 5382.021 6 in a reasonable manner, just as it interprets the use of the term 

"facility" in other contexts, to yield a reasonable result. TIP recommended that the commission 

begin developing rules that contain criteria more in keeping with 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 commission did not propose changes to the criteria for excess 

emissions events in §101.222(a), and therefore declines to make any 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 numerous variables that 

must be taken into consideration for each emissions event in order to assess 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 comprehensive set of criteria, or 

even multiple sets of criteria, to account for the numerous sitelcase-specific considerations for 

these events has therefore not been pursued. Instead, the commission has taken the position 
that each emissions event will be evaluated based on the facts surrounding the event as they 

relate to the statutory requirements. 

HCPHES commented that the commission should add language to §I 01.222(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 in 2002, 

requires the executive director to make these determinations and this rulemaking is not changing 

that requirement. The commission would appreciate any information a local program wants to 

provide that would assist in determining what events my be excessive, but declines to add an 

additional step in the determination process which could delay these determinations until there 

is consensus by both agencies. 

EIP commented that the rulemaking should require sources to reduce excess emissions to the 

maximum extent possible through review, planning, and good operational practices and controls 

developed through permitting. Furthermore, the rulemaking should narrowly and clearly define 

criteria for any affirmative defense for emissions events. 

RESPONSE 

The commission did not make any specific change in response to this comment. The 

demonstration criteria accomplish the goal of addressing the most important issues associated 

with ai.r contaminants. Also, although these rules do not provide any form of authorization for 
construction of facilities and associated emissions, the phasing out of the affirmative defense for 

planned maintenance, startup, and shutdown activities in §101.222(h) provides an incentive for 

the owner or operator to seek authorization and reduce emissions. 

TxOGA recommended that 51 01.222(a) be amended to add language that would provide that an 

owner or operator of a regulated entity be given an opportunity to meet with the executive director 

or his delegate to discuss any mitigating factors prior to an initial determination being made that an 

emissions event is excessive. TxOGA also commented that subsection (a) should be amended to 

clarify that a determination that an emissions event is excessive must give appropriate weight to all 

of the specified criteria. 

RESPONSE 

The excessive determinations are based on historical events, and the owner or operator has had 

previous opportunities to provide such information with each emission event report, and any 

subsequent enforcement, and at any meeting with the executive director or his staff. Owners or 

operators may have opportunities to meet with commission staff to discuss mitigating factors at 

several points in the enforcement process. However, if there are mitigating factors 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. It is 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 propose changes to 

this subsection and there was no opportunity for notice and comment on such changes, the 

commission declines to make these changes. 

TxOGA proposed changes to 51 01.222(a)(1) - (3) and (5). TxOGA proposed that 51 01.222(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 is the "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 by the 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 in the preamble, the 

commission needs to have all of the emission information, including information about all 

emissions, to adequately perform an excessive determination. This is particularly important to 

determining possible adverse off-property impacts. Emissions events reporting requirements are 

in 5101.201; §101.222(a) lists the criteria for the excessive determination, rather than any 

reporting requirements. Since the commission did not propose changes to this subsection and 

there was no opportunity for notice and comment on such changes, the commission declines to 

make these changes. 

Arkema commented that various sections of the proposed rulemaking, such as 51 01.222(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 including administrative technical orders and actions for 
injunctive relief. 

RESPONSE 

 he commission declines to make this change. EPA policy extends the affirmative defense only 

to administrative penalties. In addition, although the commission can use its enforcement 

discretion as to whether 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 revisions to §101.222(b)(I) and other conforming changes that instruct the 

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 preamble and the modifications deleting the reporting of authorized limits and opacity 

limits in the emission event reports. Arkema is concerned with 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 requested that the commission maintain the affirmative defense for these 

events and any others initiated outside the control of the facility managing the event. 

RESPONSE 

The commission appreciates the support. Certain unauthorized emissions 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 is an existing statutory defense that has historically been available to owners 

and operators of facilities with unauthorized emissions and is not limited by these rules. 

However, the majority of unauthorized emissions are not covered by this defense and remain 
unauthorized. 

TCC and ExxonMobil Downstream appreciated the effort to clarify in 51 01.222(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 revised to 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 changed to "regulated entity" so the commission only initiates enforcement if 

the owner or operator of a facility of a regulated entity fails to report or knowingly or intentionally 

falsifies information. 

TxOGA proposed that the commission add language to 51 01.222(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 prepared to meet the reporting deadline. 

'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 of the 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 if the emissions event report 

contained any error or inaccuracy whatsoever. 
RESPONSE 

The rule clearly states that failure to report as required by §101.201(a)(2) or (3), (b), or (e) will 

cause the commission to initiate enforcement, except when the failure consists of minor 

omissions or inaccuracies that do not impair the commission's ability to review, and it is not 

intentional falsification or knowing omissions. The commission appreciates the support for the 

additional language regarding enforcement, but declines to add the word "materially" because 

the rule specifies 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. In addition, there is no 

need to specify in the rule that formal enforcement is not the remedy or that no enforcement 

will be taken when reports may inadvertently exclude information or contain imprecise 

information because the enforcement determinations are based on a case-by-case review of the 

facts. Exclusion of some information could possibly result in formal enforcement. The 

commission also 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 

is the owner or operator of a facility. The new language provides the remedy sought to minimize 

enforcement for minor omissions and inaccuracies. 

AECT supported the commission's proposed revision to §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 according to this rule will not result in enforcement and loss of opportunity to 

claim the affirmative defense, unless the owner or operator knowingly or intentionally falsified the 

information in the report." AECT commented that the revised language would be consistent with 

THSC, §382.0216(i). 
RESPONSE 

The commission appreciates the support, but declines to make the suggested changes. The 

amendment to 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 underlying emissions event 

itself. Section 101.222(b) does not apply to minor omissions or inaccuracies that do not impair 

the commission's ability to review the event according to this rule, unless the owner or operator 

knowingly or intentionally falsified the information in the report. The commission revised 

5101.222(~)(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. Therefore, these changes are expected to minimize enforcement actions for minor 

reporting violations. 

EIP commented that the criteria in 51 01.222(b) should be amended for clarity and consistency with 

EPA guidance. Specifically, 51 01.222(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 limited the scope of emissions eligible for the affirmative defense in 5101.222(b) 

to those which are non-excessive upset emissions, rather than all non-excessive emissions events. 

Unavoidable breakdowns are those of the emergency type, rather than those that are due to lack 

of maintenance and 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, rather 
than the unauthorized emissions, was beyond the contiol of the owner or operator of the regulated 

entity making the claim of an affirmative defense. 'the current language would deny a claim of an 

affirmative defense 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 processing plant). 

RESPONSE 

Section 101.222(b)(2) states that "the unauthorized emissions were caused by a sudden 

breakdown of equipment or process, beyond the control of the operator." The commission 

clarifies that it is the sudden breakdown of equipment or process that is referenced or described 

as being beyond the control of the operator. Therefore, no revision of the rule is necessary. 

TCC and ExxonMobil Downstream appreciated the improvement in the language in 51 01.222(b)(3) 

to assure that the criteria is reasonably achievable. TxOGA proposed language for 51 01.222(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 reasonably foreseen and avoided 

by technically feasible design, operation, and maintenance practices consistent with good 

engineering practice. EIP commented that 51 01.222(b)(3) should be amended to state that the 

unauthorized emissions 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 response to these comments. The adopted amendment 

to §101.222(b)(3) does not include the 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 maintenance practices. 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 in determining 

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 constitutes technical 

feasibility in a 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 during the new source review permit review process. TxOGA proposed 

language for §101.222(b)(3), which would provide that the unauthorized emissions could not have 

been reasonably foreseen and avoided by economically justifiable design, operation, and 

maintenance practices consistent with good engineering practice. 
RESPONSE 

The commission declines to make the suggested change to add a reference to the costeffectiveness as a specific part of the criteria. "Technically feasible" now modifies only the 

design that must be consistent with good engineering practice. Common industry practices are 

considered during the analysis for this criteria. 

TxOGA stated that 51 01.222(b)(3) 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. Similar language was 

proposed by AECT. 

RESPONSE 

The commission declines to make the suggested change to add a reference to the costeffectiveness as a specific part of the criteria. "Technically feasible" now modifies only the 

design that must be consistent with good engineering practice. Common industry practices are 

considered during the analysis for this criteria. 

EPA commented that 51 01.222(b)(3) revises the existing SIP-approved criteria 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 is a 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 is a weakening of the existing SIP provision. 
RESPONSE 

The commission made some changes in response to these comments. The adopted amendment 

to 5 101.222(b)(3) does not include the 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 maintenance practices. 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 in determining 

whether the criteria is 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. 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 repairs were made as 

expeditiously as practicable. 

RESPONSE 

The commission declines to make this change. These factors may be relevant in some cases and 

will be considered in analyzing for this criteria. The use of off-shift labor and overtime to 
achieve compliance is not an assurance that the activity will qualify for an affirmative defense. 

EIP commented that §101.222(b)(6) should require that emissions were minimized to the maximum 

extent practicable. EIP commented that §101.222(b)(7) should add the requirement that all 

possible steps were taken to minimize the impact of the unauthorized emissions on ambient air 

quality. 

RESPONSE 

The commission declines to make the suggested changes to §101.222(b)(6) and (7). However, as 

previously discussed, the commission included the suggested change to §101.222(b)(7) as an 

addition to §101.222(b)(6). The commission determined that, in addition 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" in the TCAA, this language is redundant in this demonstration. A strict and literal 

enforcement of the current provision would require modeling and air quality monitoring data to be 

submitted for every emissions event. Deleting these 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 having to 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 in 2002: ' 
Previously, §101.11(a)(9) was a test of whether the emissions from an event caused or 

contributed to a condition of air pollution. In 2002, this language was added to address 

comments made by EPA (September 6, 2002, issue of the Texas Register (27 TexReg 8499)). 

Section 101.222(b)(11) does not require modeling and monitoring data be submitted for every 

emissions event. 

TCC and ExxonMobil Downstream recommended deleting all of 51 01.222(b)(12), stating that there 

is no advantage 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 

qualifying for an affirmative defense. Similar comments were made by Dow and Duke. 

RESPONSE 

The commission did not adopt the language proposed to be added in 5101.222(b)(12). This 

criteria is no longer needed in subsection (b) due to the 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 requirements of 

§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 meet the criteria are subject to an affirmative 

defense. TCC and ExxonMobil Downstream recommended not deleting the word "maintenance" 

in the first and second sentences. TxOGA proposed to insert maintenance back into this 

subsection, stating that it is not a reasonable approach to separate maintenance from startup and 

shutdown. Permitting of scheduled maintenance, 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. 

EIP commented that the proposed rule expressly applies the affirmative defense 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 included within a facility's permit and 

should not be subject to an affirmative defense. 

EIP commented that eliminating the affirmative defense for scheduled maintenance, startup, and 

shutdown activities will still leave in place the defense for unscheduled maintenance, startup, and 

shutdown activities in §101.222(b). EIP expressed that it will take time and permitting resources to 

ensure that emissions from all scheduled maintenance, startup, and shutdown activities is included 

in permits. therefore, it is EIP's position that 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 activities are subject to the full range of possible enforcement 
action. 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 to this comment. As discussed in the SECTION BY 

SECTION portion and elsewhere in this preamble, the commission incorporated the concepts of 

planned and unplanned maintenance into 5 101.222. Specifically, in 5 101.222(c), maintenance 

has been retained, but this subsection has been revised to provide an affirmative defense for 

unplanned maintenance, startup, and shutdown activities rather than for scheduled 

maintenance, startup, and shutdown activities. Furthermore, the commission addressed the 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 minimizing emissions 

during planned startup and shutdown activities when those activities meet the affirmative defense 

criteria. EIP disagreed that an after-the-fact affirmative defense demonstration is the most practical 

and effective means of implementing the FCAA requirements that best available control technology 

be applied and that ambient air quality and health impacts be considered. 

RESPONSE 

The commission agrees that a case-by-case review of emissions from maintenance, startup, and 

shutdown and application of best available control technology (with evaluation of off-property 

impacts) is preferred over a review of these emissions after the fact. Emissions from planned 
maintenance, startup, and shutdown activities at certain peaking electric generating facilities and 

batch plants have already been reviewed and included in those authorizations, and the loss of 

the ability to claim an affirmative defense for these scheduled activities will provide an incentive 

for owners or operators to seek authorization for these activities. Due to the large number of 

facilities that will need to be reviewed for planned maintenance, startup, and shutdown 

activities, the commission developed the schedule contained in 51 01.222(h)(1), and is proposing 

in a concurrent rulemaking, several options for authorizing these activities depending on the 

quantity and nature of the emissions. However, a permit review is not always a practical option 

given the predictability of the emissions. In those cases, the commission finds that the 

affirmative defense criteria are the best option to 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, 5382.021 6(f) and (g)). Therefore, the commission does not have 

the authority to create an affirmative defense for scheduled maintenance, startup, and shutdown 

activities. 

EIP requested that the commission eliminate the affirmative defense for scheduled startup and 

shutdown activities and require that such emissions be considered and limited through permitting. 

Any affirmative defense for scheduled startup and shutdown activities should be eliminated from 

the rules. To the extent that the rules maintain an exemption for unscheduled startup and . 

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 January 2, 2004, Texas Register (29 TexReg 11 8). 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 

51 01.222(c) be revised to 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 of the commission or as authorized by THSC, 5382.051 8(g), are authorized if the owner or 

operator proves all of the following criteria are met." 

RESPONSE 

The commission declines to make this change. Section 101.222(c), as adopted by the 

commission on December 17,2003, which was published in the January 2,2004, issue of the 

Texas Register (29 TexReg 118) did not provide authorization for these emissions. Rather, the 

rule provided that the emissions were required to be permitted, unless the demonstration criteria 

were proven. The rules in Chapter 101, Subchapter F, Division 3, and the predecessor rules in 

S5101.6, 101.7, and 101.1 1 (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 51 01.222(~)(1). 

TxOGA recommended that 51 01.222(~)(1) be revised to add the word "materially" to modify 

"impair the commission's ability to review." TxOGA stated that adding the word "materially" 
recognizes that a strict interpretation of this provision would 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 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. 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 declines 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) 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. 

EPA commented on 51 01.222(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 51 01.222(~)(2) should be revised to provide that 

periods of unauthorized emissions from the activity were short and infrequent and could not have 

been prevented through careful planning and design. 
RESPONSE 

The commission declines to make this change. However, the commission conducts case-by-case 

reviews of these excess emissions activities, including a review of the length and frequency of 

the reported activity and similar activities for the facility, taking into consideration the nature of 

the activity, size of the facility, as well as facts relating to 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 planning and design would have prevented the 

unauthorized emissions, and should not imply that infeasible efforts should have been made, and 

recommended adding the word "feasible" after the phrase "have been prevented through." 

RESPONSE 

No changes have been made in response to these comments. The phrase "periods of" clearly 

refers to a span of time, indicating that the entire period of time for which the unauthorized 

emissions existed must be considered in determining compliance with this criteria. the 

commission does not agree that 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 51 01.222(c). 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 

No changes have been made in response to these comments. The commission considers sitespecific information for the activity, including the specific planning for 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 in determining 

whether the criteria is met. In addition, the commission declines to make the suggested change 

to add a reference to the cost-effectiveness as a specific part of the criteria. "Technically 

feasible" now modifies only the design that must be consistent with good engineering practice. 

Common industry practices are considered during the analysis for this criteria. 

AECT commented that the commission should revise 51 01.222(c)(3) to provide that the review of 

the recurring pattern indicative of design, operation, or maintenance is not inconsistent with good 

engineering practice. 

RESPONSE 

The commission made no changes in response to this comment. Not all design, operation, or 

maintenance is compared to good engineering practice in determining whether 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 51 01.222(~)(4) that would 

provide that bypass of control equipment was unavoidable to prevent damage to facilities that 

would have resulted in even greater unauthorized emissions. TCC and Exxon Downstream stated 

that this would make this criteria consistent with the prevention of emissions as stated in 
RESPONSE 

The commission declines to make this 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 consistent with good practices for minimizing 

emissions at all times. 

RESPONSE 

The commission declines to make the suggested change of adding the phrase "at all times." this 

language could be read to require that control equipment must be in operation at all times. This 

could make the criteria impossible to meet, and, if fully complied with could result in more 

emissions in some cases. This criteria must also be considered with 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 commission does agree that 

the requirement to operate the facility in a manner consistent with good practices for 

minimizing emissions should be read to apply at all times. 

EPA and EIP recommended that 51 01.222(~)(6) be revised to 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 deleting the word "maintenance" 51 01.222(~)(6). 
RESPONSE 

The commission declines to make the suggested change of adding the phrase "to the maximum 

extent practicable." 'This could make the criteria impossible to meet. The commission reviews 

these reported activities on a case-by-case basis to determine if the unauthorized emissions were 

minimized. The commission has added language that adds the requirement that all possible steps 

were taken to minimize the impact of the unauthorized emissions on air quality. This added 

language addresses the air quality goal of protecting human health and welfare, animal life, 

vegetation, and property. The commission revised adopted 51 01.222(c) to be applicable to 

unplanned maintenance, startup, and shutdown activities, as discussed previously in this 

preamble. 

EPA recommended that 5101.222(~)(8) be revised to state that the actions of the owner or operator 

during the period of unauthorized emissions from 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 make this change. This was addressed by the commission in a 

previous rulemaking. In commission rules adopted in June 2000, the commission explained that 

this criteria requires that 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 is what is meant by "contemporaneous operating logs." The 

commission agreed 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 discussed 
in the previous response, the commission adopted the language regarding minimizing ambient air 

quality impacts in 5 101.222(~)(6). 

EIP and IPCA commented that §101.222(c) should be amended to clarify that to the 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 make this change. If startup and shutdown emissions were reviewed 

but not included in a permit, any startup and shutdown emissions that remain unauthorized must 

still be reported and could be eligible for the affirmative defense. The commission declines to 

exempt those from the affirmative defense. Compliance with the demonstration criteria is not 

only an incentive to obtain the defense, but also requires action 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 in the proposed rules is too 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 resulting from scheduled maintenance, and to excuse these excess emissions from 

penalties. 
RESPONSE 

The commission declines to make this change. 'The commission retains the authority to require 

corrective action and seek injunctive relief, which have the greater impact on reducing 

unauthorized emissions. Compliance with the demonstration criteria is not only an incentive to 

obtain the defense to penalties, but also requires action that could reduce the impact of these 

unauthorized emissions on air quality. As previously discussed, the commission incorporated the 

concepts of planned and unplanned maintenance to address EPA's concerns of the availability of 

an affirmative defense for emissions from scheduled maintenance activities. 

AECT commented that 5101.222(d) and (e), rather than 51 01.222(b) and (c), apply to boilers and 

combustion turbines referenced in the definition of RQ. AECT requested that 51 01.222 or the 

preamble clarify that 51 01.222(d) and (e), rather than 51 01.222(b) and (c), apply to such boilers 

and combustion turbines. 

RESPONSE 

Section 101.222(d) and (e) is the affirmative defense section only 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 monoxide and are not 

acutely harmful if unconfined. In addition to excess opacity events, when boiler and combustion 

turbines release these contaminants in quantities in excess of authorized limits, the contaminants 

are unauthorized and are eligible for the affirmative defense in §101.222(b) and (c). The 

commission amended 5101.222(f) to provide that the affirmative defense is available only for 

emissions that are reported or recorded. those entities that are not required by 5101 201 and 

5101.21 1 to record or report unauthorized emissions may voluntarily comply with the recording 

requirements of 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 preamble to the final ~~ule as to whether it will make the requested change to the STEERS 

electronic notification form, and, if so, when. 

RESPONSE 

Revisions to STEERS are necessary to implement the changes for reporting by regulated entity 

and common cause consistent with HB 2129. The commission will consider implementing the 

requested changes during the development of this reporting process. These changes will require 

some time to implement and will not be immediately available. The commission will make its 

best efforts to provide modifications to STEERS reporting on an ongoing basis while working to 

implement the revised reporting requirements. In the interim period, the information required 

by the rules must be submitted electronically through STEERS, and failure to report according to 

the rules can result in a 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" in the TCAA, this language is redundant in this demonstration. A strict and literal 

enforcement of the current provision would require modeling and air quality monitoring data to be 
submitted for every emissions event. Deleting these terms, as suggested by TxOGA, would give 

the commission the discretion to determine when such data is actually needed to make the 

required demonstration without having to require such information in all instances. 

TCC and ExxonMobil Downstream recommended revising 91 01.222(~)(9) by adding the word 

"significantly" after the phrase "did not cause or" to avoid the extreme interpretation that even the 

most minute unauthorized emission during the activity would fail this criteria if any exceedance of 

the NAAQS, prevention of significant deterioration increments, or a condition of air pollution 

should occur at the same time. 

RESPONSE 

The commission declines to make these changes. The commission specifically expanded existing 

language previously in §101.1 1(a)(9) when this language was adopted in 2002. Section 

101.1 1(a)(9) was a test of whether the emissions from an event caused or contributed to a 

condition of air pollution. In 2002, this language was added to address comments made by EPA 

(September 6, 2002, issue of the Texas Register (27 TexReg 8499)). Section 101.222(~)(9) does 

not require modeling and monitoring data be submitted for every emissions event. 

Sierra Houston commented that it is opposed to allowing any failure to report information in 

91 01.222(d)(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 commission declines 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) 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. 

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 adding the word "materially" 

recognizes that a strict interpretation of this provision would 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 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 language was 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 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 commission appreciates the supportive comment. 
EPA commented that 51 01.222(d)(2) revises the 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 

requirement to prove that the event could not have been avoided by better operation and 

maintenance practices is a fundamental principle which EPA considered in drafting the 1999 

startup, shutdown, and maintenance 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 is a weakening of the existing SIP provision. 

RESPONSE 

The commission agrees in part and has made changes in response to this 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 by technically 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 in determining whether the criteria is met. The 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 of 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. 

AECT supported the commission's decision to add a reasonableness standard to §101.222(d)(2). 

However, AECT suggested that §101.222(d)(2) be revised to add a reasonableness test for what 

could be foreseen and avoided. TxOGA suggested revising §101.222(d)(2) to provide that 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 applying the same heating or 

installation technology as are required to be used for a similar entity operating in Alaska. 

Arkema requested that the commission clarify in §101.222(d)(2) what constitutes technical 

feasibility in a 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 

devise determination during the new source review permit review process. 

RESPONSE 

Proposed § 101.222(d)(2) is renumbered as 51 01.222(d)(3). No changes have been made in 

response to these comments. The commission considers site-specific information for the activity, 

including the specific planning for 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 in determining whether the criteria is met. In addition, 

the commission declines to make the suggested change to add a reference to the costeffectiveness as a specific part of the criteria. "Technically feasible" now modifies only the 

design that must be consistent with good engineering practice. Common industry practices are 
considered during the analysis for this criteria. 

TCC and ExxonMobil Downstream commented that the prevention criteria should only consider 

whether technically feasible design, operation, and maintenance practices consistent with good 

engineering practice would have prevented the unauthorized emissions, 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 add the word "significantly" 

after the phrase "did not cause or" in §101.222(d)(9) to avoid the extreme interpretation that even 

the most minute unauthorized emission during the activity would fail this criteria if any condition 

of air pollution should occur at the same time. 

RESPONSE 

No change has been made in response to this comment. The criterion does not suggest that an 

extreme interpretation will be used in the evaluation of whether the owner or operator meets its 

burden of proof. 

EIP suggested that the commission clarify how opacity exceedances are treated under the rules and 

to ensure that opacity exceedances are 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 exceeding the applicable limit 
by 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 is a 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 in the amount of emissions. Opacity at 15% above an 

authorized level is a 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. Reporting of opacity and 

claiming an affirmative defense for 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 in this preamble, the reporting requirements 

for excess opacity are in 5101.201 and 5101.211. Additionally, opacity exceedances at facilities 

that are subject to the Federal Operating Permit Program are subject to deviation reporting and 

should be reported to the commission under that program. The commission made no changes to 

the rule based on this comment. 

TCC and ExxonMobil Downstream appreciate the new language in 51 01.222(e) to add clarity that 

-182- 
scheduled startup and shutdown activities that meet the following criteria are subject to an 

affirmative defense. The separation of scheduled maintenance is discussed 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 response to these comments. As discussed in the SECTION BY 

SECTION portion and elsewhere in this preamble, the commission incorporated the concepts of 

planned and unplanned maintenance into 5101.222. Specifically, in §101.222(e), maintenance 

has been retained, but adopted §101.222(e) has been revised to provide an 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 51 01.222(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" 

recognizes that a strict interpretation of this provision would 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 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 adopted rule clearly states that failure to report as required by §101.201(a)(2) or (3, (b), or 

(e) will cause the commission to initiate enforcement except when the failure consists of minor 
omissions or inaccuracies that do not impair the commission's ability to review, and it is not 

intentional falsification or knowing omissions. The commission appreciates the support for the 

additional language regarding enforcement, but declines to add the word "materially" because 

the rule specifies 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. In addition, there is no 

need to specify in the rule that formal enforcement is not the remedy or that no enforcement 

will be taken when reports may inadvertently exclude information or contain imprecise 

information because the enforcement determinations are based on a case-by-case review of the 

facts. Exclusion of some information could possibly result in formal enforcement. 

Sierra Houston commented that it is opposed to allowing any failure to report information in 

51 01.222(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 commission declines to make this change. Similar language was 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 limited to minor omissions or inaccuracies that do not impair the commission's 

ability to review the 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 January 2, 2004, issue of the Texas Register (29 TexReg 11 8). AECT commented 

that each scheduled maintenance, startup, or shutdown activity that meets the criteria in 

51 01.222(c) is considered by the commission to be authorized by virtue of meeting such criteria. 
AECT suggested that 5 101.222(c) be revised to 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 of the commission or as authorized by THSC, 5382.051 8(g), are authorized if 

the owner or operator proves all of the following criteria are met." 

RESPONSE 

The commission declines to make this change. Section 101.222(c), as adopted by the 

commission on December 17, 2003, which was published in the January 2,2004, issue of the 

Texas Register (29 TexReg 118) did not provide authorization for these emissions. Rather, the 

rule provided that the emissions were required to be permitted, unless the demonstration criteria 

were proven. The rules in Chapter 101, Subchapter F, Division 3, and the predecessor rules in 

881 01.6, 101.7, and 101.1 1 (repealed effective September 12,2002) have not and do not 

authorize any emissions. All air contaminant emissions are authorized under Chapters 106 and 

116. 

AECT commented that 51 01.222(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 other than 51 11.1 11 (a), or in any permit or order, even if the criteria in 

5 101.222(e) are demonstrated to 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 no emissions event, that result from 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 51 01.222(e)(2) are 

unnecessary, should be deleted, and only raise questions of intent. the prevention criteria should 

only consider whether feasible planning and design would have prevented the unauthorized 

emissions, and should not imply that infeasible efforts should have been made, and recommended 

adding the word "feasible" after the phrase "been prevented through." 

RESPONSE 

No changes have been made in response to these comments. The phrase "periods of' clearly 

refers to a span of time, indicating that the entire period of time for which the unauthorized 

emissions existed must be considered in determining compliance with this criteria. The 

commission does not agree that the rule implies that infeasible efforts 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 

No changes have been made in response to these comments. The commission considers sitespecific information for the activity, including the specific planning for 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 in determining 

whether the criteria is met. In addition, the commission declines to make the suggested change 

to add a reference to the cost-effectiveness as a specific part of the criteria. "Technically 

feasible" now modifies only the design that must be consistent with good engineering practice. 

Common industry practices are considered during the analysis for this criteria. 

AECT commented that the commission should add language to §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 inconsistent with good engineering practice, rather than based on inadequate design, 

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 prevention of opacity emissions as stated in §101.222(e)(5). 

TCC and ExxonMobil Downstream recommended not deleting the word "maintenance" in 

§101.222(e)(6). 'the separation of scheduled maintenance is discussed in 51 01.222(h). 

TxOGA suggested that §101.222(e)(6) retain the term "maintenance." 

TCC and ExxonMobil Downstream requested adding the word "significantly" after the phrase "did 

-187- 

.- 
not cause or" in 51 01.222(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 51 01.222(0, Obligations, that states, in effect, 

51 01.222(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 subject to an affirmative defense, or the rule may state that certain violations 

are not subject to an affirmative defense. EIP requested that 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 is available only with respect to enforcement of 

the SIP provisions and not when it comes to sentences or enforcement of other federal 

requirements. 

RESPONSE 

The commission agrees that neither 51 01.221(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 provided by §101.222(b), (c) - (e), and (h) apply only to violations of SIP requirements. 
An affirmative defense cannot apply to violations of federally promulgated performance of 

technology-based standards, 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. In a concurrent rulemaking, the commission is proposing a definition of "normal 

operations" of which planned and predictable maintenance, startup, and shutdown are 

components. The commenter will have the opportunity to comment on that proposed definition. 

EPA strongly recommended that the state establish an alternative approach of enforcement 

discretion for excess emissions .from scheduled maintenance during this transition period. EPA 

commented that 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 maintenance during this transition period. 

This approach generally requires the source to demonstrate that 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. 

Notwithstanding the previous comment, EPA stated it will 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 in this 

preamble, the commission revised 5101.222 to accommodate the definition of unscheduled 

maintenance, startup, and shutdown activities in THSC, 5382.0215, and unplanned maintenance, 

startup, and shutdown activities. In addition, although the affirmative defense is retained for 

planned activities, it is phased out according to a specific schedule by facility SIC code. This 

schedule will provide for the orderly and thorough review of applications for authorization of 

these emissions. Accordingly, the affirmative defense is scheduled to be phased out one year 

after the deadline for application submission. If the application remains pending after one year, 

the commission may use enforcement discretion until final 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 from the deadline for filing an application. 

Accordingly, for facilities in major group SIC code 28 (Chemicals and Allied Products), except 

SIC code 2895, the affirmative defense is scheduled to be phased out two years after the 

deadline for application submission. For all other facilities, the affirmative defense will expire 

one year after the deadline for application submission. If the application remains pending after 

one year, the commission may use enforcement discretion until final 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. 

EPA commented that 5101.222(h) should repeat, rather than merely reference the criteria listed in 

51 01.222(~)(1) - (9), and that any changes to the criteria in 51 01.222(c) should be incorporated into 

5101.222(h). EPA also recommended the addition of criteria to clarify that the source has the 
burden to prove that the maintenance activity arose from sudden and reasonably unforeseeable 

events that were beyond the 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 provisions to nonroutine and 

emergency circumstances (i.e., to prevent a malfunction). EPA strongly recommended that these 

limitations be placed in the criteria, rather in the body of the rule, to ensure that the source or 

operator bears the burden to prove those limitations have been met before the affirmative defense 

may be asserted. 

RESPONSE 

The commission made no changes in response to these comments. Rather, as discussed 

elsewhere, the commission revised 5101.222 to ensure that the emissions that are subject to an 

affirmative defense are those that are eligible under EPA guidance. The referencing of the 

criteria in §101.222(~)(1) - (9) is adequate to 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 instructed that entities that do not 

permit these 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 

predictable and quantifiable. GHASP commented that it does not support a phase-out of the 

affirmative defense for such emissions and stated that it is inconsistent with EPA guidelines, and 

recommended not seeking enforcement during a permitting phase that does not exceed one year. 

EIP commented that the affirmative defense for maintenance emissions should be deleted. TxOGA 

suggested that the commission delete proposed 5101.222(h). Permitting of scheduled 
maintenance, 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 provide the 

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. If the 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 

emissions can 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 in this preamble, the 

commission revised §101.222 to ensure that the affirmative defense and enforcement discretion 

provided meets EPA guidance, and has provided a schedule that will allow an orderly, 

meaningful review of applications for authorization of emissions from planned maintenance, 

startup, and shutdown activities. In addition, the commission is concurrently proposing 

authorization mechanisms to provide flexibility for authorization of these emissions. Whether 

offsets will be required for authorization of these types of emissions is an issue associated with 

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 preclude the use of 

the affirmative defense for maintenance emissions even after regulated entities have had the 

opportunity to authorize maintenance emissions by a PBR or permitting. As proposed, this option 

will only remain for maintenance emissions that arise from reasonably unforeseen events. This 

adds an air of uncertainty that may preclude using the affirmative defense for coverage until such 

time as these events can be covered by a PBR or permitting, if the 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 previous experience with similar units. As 

experience grows with operation of the unit, additional maintenance activities become known that 

were not authorized, and need the opportunity to use an affirmative defense if the emission cannot 

be authorized. This would allow the authorization and the affirmative defense option to be used as 

a temporary cushion for necessary operations until the authorization is received. Owners and 

operators would much prefer to have such activities authorized by permit rather than rely on a PBR 

or an affirmative defense. 

TPA recommended that the commission continue the affirmative defense for maintenance 

emissions while encouraging the permitting of maintenance emissions. TPA commented that is 

unreasonable for the commission to expect all maintenance emissions for sources authorized by 

standard permits and PBRs to be permitted within two years, particularly for companies with 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 

consider the ramifications of its requirement to permit maintenance emissions. 
Representative Hochberg commended the commission's efforts to bring emissions 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. 

Representative Hochberg also commented that if a 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 providing guidance for permitting those activities and by 

facilitating the application of existing rules to bring those 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 is the best way to handle maintenance emissions, however, the commission has not yet 

implemented viable guidance to provide this coverage. 

Dow supported the idea of authorizing maintenance emissions in permits and other types of 

authorizations. However, Dow expressed concern that a mandate to permit is being included in 

these rules without any information as to how this requirement will 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 ability 
to 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, presents an obstacle to authorizing all of 

the emissions at larger sites. Current permitting practice for maintenance emissions requires the 

applicant to be specific with respect to the maintenance activities that one is allowed to conduct. 

Dow suggested that the commission define maintenance scenarios in a general manner. Dow 

commented that review of best available 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 attempt to permit all scheduled maintenance emissions is done in a manner that 

truly allows the vast majority of such activities to be authorized. 

TxOGA, Pure, and Occidental commented that requirements to permit scheduled maintenance, 

startup, and shutdown activities may trigger a prevention of significant deterioration or 

nonattainment area review that could take years to complete. Requiring all scheduled 

maintenance, startup, and shutdown activities for sources under standard permits and PBRs to be 

permitted within two years is also not reasonable for even a medium size company with tens of 

sites and operations. Such a requirement could lead to many facilities now authorized under PBRs 

or standard permits to have to be permitted, creating a workload that current permitting vehicles 

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 indicate when 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 in the 

next two years it may not need to be done at all. Predictive maintenance is preferable to planned 

maintenance if the intent is to minimize emissions, because with predictive maintenance an 
operator 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 in a 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 needed work 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 resources during this 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 requires the 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 a facility 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 this 
rule relates to that change. 

EIP commented that best practices would suggest that some pieces of duplicate equipment, such as 

pumps, can be serviced without startup and shutdown. Emissions from the maintenance portion of 

maintenance, startup, and shutdown should be predictable, and should only get lower with 

improved processes. 

GHASP stated that it is imperative that these facilities are held accountable for their emissions that 

are predicable and quantifiable in accordance with the federal law. GHASP also commented that 

any reference to maintenance should include associated startup and shutdown associated with that 

maintenance. 

EIP acknowledged that there may be valid reasons for a plant to 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 practices that may be used to reduce 

emissions during these activities. 

EPA commented that its policy for 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. Every turnaround will 

have a startup and shutdown, but each . may . be different - if, for nothing else, because the mix of 

equipment being maintained in a given turnaround will be different every time. But thefacility 

should be able to predict, for permitting purposes, the maximum emissions for a turnaround 
involving 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. 

Emissions above allowable limits may cause or contribute to violations of the NAAQS and the HGB 

region's ability to reach attainment for ozone. 

RESPONSE 

The commission agrees 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, 

including adopted 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 emissions from planned startup and 

shutdown activities in addition to maintenance activities. This is one incentive to obtain 
authorization of emissions which have generally not been authorized, particularly in new source 

review permits. 

Section 101.222 does not require permitting of emissions from maintenance, startup, and 

shutdown activities. However, because the ability to claim an affirmative defense for planned 

maintenance, startup, and shutdown emissions will be phased out, the commission anticipates 

that the owners and operators of these facilities will submit applications for new source review 

authorizations for these emissions. Currently, there are more than 14,000 active NSR permits in 

Texas. The commission has one of the nation's largest minor source permitting programs, as well 

as a large number of major sources. The opportunity to seek authorization for planned 

maintenance, startup, and shutdown emissions is not limited to major sources. Due to this 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 permits or permit amendments. In a concurrent rulemaking, the commission is 

proposing various authorization mechanisms to provide authorization flexibility, depending on 

the amount and nature of the emissions. Authorization of planned maintenance, startup, and 

shutdown emissions will involve a case-by-case review of best available control technology and 

off-site impacts for 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, and therefore this case-by-case review will 

involve developing an understanding of the methods and techniques available to minimize the 

emissions from these activities. 

Texas is one of the most industrial states in the country, and has large numbers of very diverse 

industries. The state has several international ports, and one of the nation's largest complexes of 
refining and petrochemical companies. Furthermore, as the second largest state in the nation, 

there are a wide variety of industries in the state, including a large number of oil and gas 

facilities. The schedule in §101.222(h) will provide time for the commission to gain a better 

understanding and development of best available control technology, and conduct impact 

analyses. Requiring companies in various industries to submit applications at the same time as 

those from similar facilities will allow the commission to compare how companies plan to 

control planned maintenance, startup, and shutdown emissions. This will facilitate an 

understanding of the best ways to control and minimize these emissions. 

In addition, the schedule allows for review of the most important emissions, starting with those 

facilities that are large, or have frequent unauthorized emissions or have emissions with a 

greater possibility for off-site impacts. This schedule will decrease the likelihood that 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 phasing out of the ability to claim an affirmative 

defense. The adopted schedule is in §101.222(i) and is based on the level of excess emissions 

reported by industry type in the 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 reported to the commission's emissions inventory for calendar year 2002. 

The commission will make every effort to review applications to permit emissions associated 

with planned maintenance, startup, and shutdown activities before the loss of the ability to claim 

an affirmative defense according to the schedule contained in §101.222(i). However, because 

the actual number of applications that may be submitted is unknown at this time, final action 
may not occur for all applications before the expiration of the ability to claim an affirmative 

defense for planned maintenance, startup, and shutdown activities. Therefore, for those actions 

that may still be pending, the commission will continue to use its enforcement discretion when 

reviewing excess emissions from planned maintenance, startup, and shutdown activities. In 

addition, the commission added §101.222(j), which references 51 16.1 14. Section 101.222(j) 

requires that the executive director meet certain application processing deadlines. It also 

requires applicants to make good faith efforts to submit, in a timely manner, adequate 

information that demonstrates that the requirements for obtaining a permit or permit 

amendment are met in response to any deficiency notification issued by the executive director. 

AECT commented that the commission should not revise its rules to require that shutdown and 

startup emissions from electric generating facilities be authorized by a permit because electric 

generating facilities are unique relative to other types of facilities. AECT commented that electric 

generating facilities are unique in that their shutdowns and startups are scheduled by the Electric 

Reliability Council of Texas, Southwest Power Pool, or similar authorities, based on the customer 

electric consumption and reliability needs of the state. As a result, electric generating facilities' 

owners and operators cannot usually predict the frequency of startups and shutdowns of their 

electric generating facilities, especially given electricity deregulation. This makes permitting of 

shutdowns and startups of many electric generating facilities difficult, if not impossible. 

RESPONSE 

The adoption of these rules will not directly require the authorization of startups and shutdowns. 

However, the commission recognizes that the loss of the ability to claim an affirmative defense 

will result in the desire to authorize the emissions associated with most planned maintenance, 

startup, and shutdown activities. In a concurrent rulemaking, the commission is proposing 
various authorization mechanisms to provide flexibility in authorizing 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-case authorization of these 

activities is something that the commission has very little experience with and will take some 

time to develop. The commission recognizes that electric generating facilities present some 

unique challenges in that 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 reviewed andlor authorized. The permit application deadline for electric generating facilities 

is five years after the effective date of this rule so there will be time to resolve the AECT's 

concerns. 

AECT commented that if the commission does not delete proposed 51 01.222(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 declines to make these changes. As previously discussed, the commission 

revised 5101.222(h) to be applicable to planned maintenance, startup, and shutdown activities, 

and has added 5101.222(i), which provides a schedule for 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 monitoring after 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. Essentially this means that it is often 

logically impossible for an operator to ever violate its permit limits, regardless of how the facility is 

operated. 

RESPONSE 

The commission made no changes in response to this comment because it is beyond the scope of 

this rulemaking. 

An individual commented that general engineering design process needs to be improved so that 

plants take 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 previously discussed, the commission plans to take a careful look at the applications 

submitted for authorization of these historically unpermitted emissions, including the design of 

the control equipment. 

An individual commented that, for gas treatment plants, four pounds per hour of emission 

allowable for hydrogen sulfide is extremely high; this number should be closer to zero. The 

individual commented that incinerating hydrogen sulfide creates sulfur dioxide which also causes 

harm, and should be re-injected into a properly designed well and not vented to the atmosphere. 

An individual commented that American Petroleum Institute Recommended Practices Numbers 49, 

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 mechanisms for doing so. 

Therefore, this comment is beyond the scope of this rulemaking. 

An individual expressed concern that the gas processing plant by that individual's residence was 

granted a PBR in 15 days. This PBR is too vague. Concern was expressed that 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 plant will do to our health, 

the effects on the community, and the general health and safety of the people. An individual 

commented that a 114 mile limit for 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 mechanism to authorize similar types of facilities. When developing these 

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 in accordance with the requirements of the authorization. If an individual believes that 

a particular facility is not operating in accordance with its authorization, the individual can 

contact the commission in one 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 reached tollfree at 1-888-777-3186, or individuals can e-mail the commission at cmplaint@tceq.state.tx.us. 
Division 3: Operational Requirements, Demonstrations, and Actions to Reduce Excessive 

Emissions 

Section 10 1.223 - Actions to Reduce Excessive Emissions 

EIP commented that the rules should be amended to clearly reflect that THSC, 5382.021 6(e) 

requires that emissions events resulting from the lack of preventive maintenance or from operator 

error, or emissions that are part of a recurring pattern of emissions events indicative of inadequate 

design or operation be subject to corrective action plan requirements. 

RESPONSE 

The commission declines to make this change. The statutory provision is self-implementing. 

Furthermore, the demonstration criteria for excessive emissions in §101.222(a) requires the 

commission to evaluate the cause, frequency, and four other criteria that address the specific 

concerns raised by EIP. Emissions determined to be excessive either results in the requirement to 

provide a corrective action plan, or that the owner or operator obtain an authorization. 

BSA, Public Citizen, and Sierra Lone Star commented that the commission should require facilities 

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 response to 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. Emission 
capture and abatement equipment shall be considered to be in good working order and operated 

properly when operated in a manner such that each facility is operating within authorized 

emission limitations. As previously discussed in this preamble, and in the preamble to the rules 

implementing statutory changes adopted by the legislature in 2001, 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 commented that the commission should include a bright-line trigger 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 subject the 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 the 
option of filing a corrective action plan or a letter of intent to obtain authorization for emissions, 

and therefore the commission declines to delete the authorization option. This was specifically 

addressed in these rules for the implementation of 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 regarding CAPS will apply. The commission recognizes that 

when emissions from emissions events are sufficiently frequent, quantifiable, and predictable, 

the facility owner or operator has a choice between filing a CAP or requesting permit 

authorization. However, if the commission determines that the emissions are not sufficiently 

frequent, quantifiable, or predictable, the facility must file a CAP." 

EIP commented that the proposed rule s hou Id require additional monitoring for excess emissions. 

Extensive evidence already familiar 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 associated with flares. The commission continues to 

consider monitoring where it determines that is appropriate corrective action. 

HCPHES supported the changes in §101.223(a)(1) regarding the additional language of appropriate 

local air pollution control agency with jurisdiction. 

RESPONSE 

The commission appreciates the 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 51 01.223(a)(l). 

RESPONSE 

The commission declines to make the changes. The commission has statutory deadlines, 

incorporated in 5101.223, to act on corrective action plans, and therefore must begin and end 

its review timely. Adding an additional approval mechanism may make those 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 comments to 

the commission regarding the plan. 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Water Code, 55.1 03, concerning Rules, and 35.1 05, 

concerning General Policy, which authorize the commission to adopt rules necessary to carry out 

its powers and duties under the Texas Water Code; and under THSC, 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 establishes the 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; 5382.01 2, concerning State Air Control Plan, which authorizes the 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 regarding 
emissions of air contaminants; 5382.01 6, concerning Monitoring Requirements; Examination of 

Records, which authorizes the commission to prescribe requirements for measuring, monitoring, 

and maintaining records of emissions of air contaminants; 5382.021 5, concerning Assessment of 

Emissions Due to Emissions Events, which authorizes the commission to collect and assess 

unauthorized emissions data due to emissions events; 5382.021 6, 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, 382.01 2, 382.014, 382.01 6, 

382.021 5 and 382.021 6.